The opinion
FILED
AUGUST 22, 2024
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
)
In Matter of the Welfare of C.J.J.I. ) No. 39593-6-III Cons. with
) No. 39594-4-III, No. 39595-2-III
)
)
) UNPUBLISHED OPINION
)
FEARING, J. — The mother of three children, two of whom are Native American,
appeals from a juvenile court order declaring her children dependent and from a
disposition order continuing the placement of the children outside her home. She
clutches Washington Supreme Court decisional language that imposes on the juvenile
court, in accordance with the Washington Indian Child Welfare Act (WICWA), the duty
of assessing active efforts at every dependency hearing. Based on this principle, she
assigns error to the juvenile court’s failure to find active efforts during the dependency
hearing that preceded the disposition hearing. In response, the State contends that the
juvenile court needed to address active efforts only at a hearing in which the State sought
out-of-home placement. According to the State, the mother’s children were already
placed elsewhere, at the time of the dependency fact-finding hearing, and the juvenile
court addressed their continued placement only later during the disposition hearing. At
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
the dependency hearing, the juvenile court found Department of Children, Youth and
Families (DCYF) exerted active efforts to reunite the family.
We rule, based on RCW 13.38.040(1)(a)(ii) and In re Dependency of G.J.A., 197
Wn.2d 868, 875, 489 P.3d 631 (2021), that the dependency court must review and find
active efforts during every hearing, in which the State seeks to place the Indian child out
of the home. As a result, the trial court erred when not finding active efforts at the
dependency hearing. This lack of review poses particular problems in this appeal
because of the significant delay between the dependency hearing and the disposition
hearing.
FACTS
This appeal concerns the dependency of the mother’s three children, daughter
C.V.I., age 13, son C.J.J.I., age 8, and son R.R., age 5. The ages listed are the ages of
each child in September 2022 when the State filed the dependency petition. The father of
C.V.I. and C.J.J.I. is B.I., a Native American. The father of R.R. is also R.R., not Native
American. Neither father has participated in the care of their respective children or
responded to the dependency proceeding. We procure most of the substantive facts from
testimony at the dependency fact-finding hearing.
C.J.J.I. is an enrolled member of, and C.V.I. is eligible for enrollment in, the
Cheyenne River Sioux Tribe through their father, who is a member. Thus, the two oldest
2
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
children are Indian children within the meaning of Indian Child Welfare Act (ICWA)
chapter 13.38 RCW and WICWA.
This appeal arises from a dependency action for all three children filed in 2022.
DCYF administered an earlier dependency action for C.V.I., C.J.J.I., and R.R. from 2017
to 2021. We begin the facts on the return of the three children to the mother in 2021.
Jessica Richter, a program manager for the substance use disorder program at the
Spokane Addiction Recovery Center (SPARC), spoke with the oldest child, C.V.I., soon
after the children’s return home in 2021. C.V.I. mentioned the mother’s drug use but
provided no specific information on the use. On a later day, C.V.I. disclosed to Richter
that her mother used methamphetamine, and she had seen methamphetamine in her
mother’s bedside drawer.
In March 2022, Child Protection Services (CPS) opened a new intake file for the
mother’s family. The reporting party related that the mother ingested methamphetamine
and the children had access to the drug. The mother had directed C.V.I. to move a bong
into the bedroom so that visitors would not espy the device. Cassidy Rose, the DCYF
social worker assigned to the file, requested that the mother provide a urinalysis (UA).
Rose listed services available to assist mother. The mother completed the UA testing, but
declined any further assistance from DCYF. The mother abhorred the government’s
harassment of her and her family.
3
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
Jessica Richter, the substance use disorder program manager at SPARC, testified
at the dependency hearing about the mother’s substance use. Richter averred that the
mother failed to disclose cocaine use in March 2022 during a substance abuse evaluation.
In mid-April 2022, CPS received another referral concerning supervision of
middle child, C.J.J.I. C.J.J.I., while unsupervised in the apartment complex where the
family lived, exposed himself to another child. CPS received five additional reports of
concerns for the children in May 2022. These intakes alleged that the mother physically
assaulted C.V.I., that C.V.I. performed most of the care and supervision of her younger
siblings, and that C.V.I. reported to her school counselor the presence of illicit substances
in the home. At that time, DCYF concluded that insufficient evidence supported each
report.
During the later dependency fact-finding trial in November 2022, Janet
McDonald, a Greenacres Middle School counselor, testified to events in May 2022.
C.V.I. attended Greenacres Middle School. According to McDonald, C.V.I. reported that
she supervised her brothers when her mom socialized with her boyfriend, Shawn Nason,
and C.V.I. commented that Nason carries a gun, which rendered her uncomfortable. In
response to C.V.I.’s allegations, the mother blamed C.V.I. for R.R. running away
unsupervised from a park. The mother also claimed that C.V.I. attempted to fist fight her.
4
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
DCYF social worker Cassidy Rose testified at the dependency hearing to
interviewing C.V.I. on May 17, 2022 about the purported altercation between the mother
and C.V.I. C.V.I. disclosed she visited a park with her boyfriend. Her mother had tasked
her to supervise youngest child, R.R., and he had run home unsupervised. According to
C.V.I., when she returned home, her upset mother punched her throughout her body.
C.V.I. stated the punching was strong enough to cause bruises, but Rose did not see any
bruises. During the May 17 interview, C.V.I. also added that she saw her mother strike
R.R., which caused a mark on his leg.
C.J.J.I. attended Greenacres Elementary School, not to be confused with the
nearby Greenacres Middle School. A May 24 report prepared by DCYF from
information supplied by Greenacres Elementary School recorded that C.J.J.I. mentioned
drinking alcohol to fall asleep. The report gave no date for the incident.
On May 26, 2022, the mother did not answer the phone when Greenacres
Elementary School personnel called her to retrieve C.J.J.I. from school. C.J.J.I. needed
transportation home because of his banishment from the school bus due to poor behavior.
At 5:30 p.m., on May 26, the mother and a friend arrived at the school after the friend
found the mother at Shawn Nason’s home. On the mother’s arrival at the school, the
elementary school Principal Lindsey Kent observed the mother looking disheveled with
5
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
marks on her arm that she stated resulted from being at the hospital. According to Kent,
the mother’ speech was difficult to follow.
A June 2 DCYF report repeated other information supplied by Greenacres
Elementary School. According to the report, C.J.J.I. told school staff that his mother had
not spent the last two nights at home and he stayed elsewhere during those nights.
C.J.J.I. added that he failed to take his morning medication in the absence of his mother.
He arrived at school hungry because of the lack of dinner the night prior. The report
further declared that C.J.J.I. took school lunches home for his dinner.
A June 3, 2022, report read that C.J.J.I. disclosed that the doors to his house were
locked when he arrived home the previous afternoon. He stayed overnight with another
family in the apartment complex, but ate no dinner. According to school officials, C.J.J.I.
could not recall the last time he saw his mom.
To address the mother’ struggles with supervision of her children, DCYF
contacted child care providers near the family’s home, including Vanessa Behan Crisis
Nursery. DCYF also asked school counselors about after school programs. DCYF
helped enroll the children in daycare at the MLK Community Center. DCYF connected
the mother with an organization that paid for the costs associated with the daycare.
Nevertheless, the children attended daycare for only five days. Social workers
6
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
unsuccessfully attempted to contact the mother about the children’s absence from daycare
by sending text messages, calling her phone, and visiting her house.
On September 16, 2022, DCYF removed C.J.J.I. and R.R from home. DCYF took
custody of C.J.J.I. from Greenacres Elementary School at the end of the school day.
School Principal Lindsey Kent observed the apprehension. According to Kent, C.J.J.I.
understood the nature of DCYF’s action and became upset. As social workers escorted
C.J.J.I. to a van, the mother arrived at the school. The mother approached C.J.J.I. and
uttered: “You good bro? You good? We talked about this.” Report of Proceedings (RP)
at 148.
Social worker Cassidy Rose avowed, at the dependency fact-finding hearing, that
the mother, at an earlier shelter care hearing, denied use of controlled substances. Later,
at that shelter care hearing, when asked by the juvenile court as to what a hair follicle test
would show, the mother replied that it would test positive for cocaine.
During a September 29 meeting between the mother and Angela Van Grimbergen,
an employee for the Institute for Family Development, the mother expressed frustration
with DCYF. The mother told Van Grimbergen she was not using drugs and DCYF
unfairly targeted her because of her history. The mother later changed her story and
disclosed she had recently used cocaine, but insisted that her ingestion of the drug should
7
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
not concern anyone. On September 29, C.V.I. disclosed to DCYF social service
specialist Matteah Keller the former’s concern about her mother’s drug use.
Jessica Richter testified to the results of the mother’s UA testing collected on
October 4, 2022. The test results confirmed use of amphetamine and methamphetamine.
The mother tested positive for fentanyl in a November 22, 2022 UA test.
During the fact-finding hearing, the mother testified about her substance use:
Q. You’ve seen the results of a recent drug test that indicates a
positive for fentanyl?
A. Yes, I did.
Q. Can you explain that?
A. Honestly, I have, like, I’m shocked—just as shocked. That’s why
I asked to go get a hair follicle test to show that I don’t know where in the
life of me that came from.
Q. So have you ever used fentanyl?
A. Never in my entire life.
Q. In the last seven or eight months since March 29th, have you used
marijuana?
A. Yes.
Q. When is the most recent time?
A. In March before it all—did you say the 29th? Well, it’d be before
that.
Q. Have you used cocaine?
A. Before March 29th, yes.
Q. So not since March 19th?
A. No.
Q. Have you used methamphetamine?
A. September 30th, but I guess it would—between 11/25 and 2/15,
so it’d be considered the 1st of October also.
....
Q. So if you used methamphetamine, you consider that to be a slip?
A. Yeah, because I haven’t abandoned my treatment.
8
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
Q. So if you used—how many times would you have to use meth in
order for you to consider it something other than a slip?
A. If we look up the definition online of a slip and a relapse, it was a
slip. I have not abandoned or dis—I haven’t abandoned my—my recovery.
I haven’t consistently used in meth. It was a one-time use of
methamphetamine, because that is my drug of choice. It’s a slip. Like, my
sobriety does mean tremendously to me. Neither the State wants to believe
it, whoever doesn’t want to believe it. My last—I’m proud cause when I
put myself into treatment the last time, October 19th, 2019, I actually have
been fully, like, clean of using methamphetamine. Like, I have not once
injected it. I was an IV user. I have not snorted it, ever smoked it. I have
not done any use of methamphetamine since that one slip on September
30th, when my kids were removed. But prior to that, I have not once had
any kind of slip or any desire to use.
RP at 499-500, 526.
At the fact-finding hearing, social worker Jessica Richter of SPARC testified to
multiple unsuccessful and some successful attempts to contact mother. On one occasion,
Richter contacted the mother and handed her a packet containing a list of community
resources to assist her, but the mother declined to take possession of the packet. Richter
discussed in-home parenting services with the mother. The mother sometimes responded
to offers of assistance: “‘I don’t need the Department. I won’t be involved. This is
harassment.’” RP at 350.
Mattie Keller, the DCYF social service specialist, averred:
Q. Have you talked to her about engaging in mental health services?
A. Yes.
Q. Can you describe those conversations?
A. Yes. I have brought it up multiple times, asked her if I can assist
her, informed her she had an appointment with Phoenix Counseling
9
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
Services that was scheduled by the Department. And she went to that, but
declined to sign the ROIs [Releases of Information] and so they ended the
intake appointment. They had called us a few weeks later and said that
there was still an opening if she would like to come back in. When I
mentioned that to her—to Ms. Mother—she stated that she is comfortable
at the YWCA and does not want to go anywhere else. I informed her that I
have spoken with the YWCA and they state that she is on a waitlist and I
really encouraged her to get start engaging immediately.
Q. So the Department made a [sic] appointment for her at Phoenix;
is that what you said?
A. Mm-hmm. Yes.
Q. What was her response to that proactive step?
A. She said that she—Ms. Mother stated she did not want our help in
scheduling appointments and to not do that.
Q. Is that something you’ve tried to respect since that time?
A. Yes.
Q. Why?
A. I do not want to put her into a situation where she’s not
comfortable. If she states she’s not comfortable at an agency, I don’t want
to push that on her.
Q. When she states she doesn’t want the Department scheduling
appointments for her, that’s something that you wouldn’t continue to push
either?
A. Correct.
RP at 398-99 (emphasis added).
Robin Haskell, the Cheyenne River Sioux Qualified Expert Witness (QEW),
testified at the dependency fact-finding hearing. Haskell declared:
Q. What is your opinion, if any, regarding the provision of active
efforts to this family between the end of March of 2022, and the middle of
September of 2022?
A. I wasn’t here during March, but I don’t—I think the only reports
we have received—or I don’t think we have received anything until I
started, so there really hasn’t been much active efforts. I think [DCYF
social worker] Cassidy [Rose] did contact someone and they told her that,
10
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
you know, I think we already talked about this. Where we couldn’t do
anything unless a petition was filed. But I was here. I didn’t really receive
anything until I started requesting it, I guess.
RP at 489 (emphasis added).
PROCEDURE
On September 16, 2022, DCYF filed the pending dependency petitions for C.J.J.I.
and R.R. DCYF alleged the children lack a capable parent because of the mother’s
substance use, mental health, exposing the children to unsafe individuals, domestic
violence between the mother and her boyfriend Jeffrey Shawn Nason, and the mother’s
failure to adequately supervise her children. DCYF took the two younger children in
custody the same day.
At a September 20, 2022 shelter care hearing, the juvenile court ordered that
C.J.J.I. and R.R. be returned home to the mother. The mother agreed to participate in a
chemical dependency assessment and any recommended treatment, random UA testing,
medication management, mental health treatment, and domestic violence prevention
services. The mother signed releases for information.
On September 21, 2022, DCYF filed a dependency petition for the oldest child,
C.V.I. DCYF did not then take custody of C.V.I. At some unidentified date, either
before or after September 21, C.V.I. began staying overnight with a friend. The juvenile
court conjoined all three dependency actions.
11
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
On September 29, the mother hit C.J.J.I. with a fist. The mother and son sat on a
couch and argued with one another. Mother cautioned C.J.J.I.:
“If you don’t shut the fuck up, I’ll beat the shit out of you.”
RP at 380-81. The mother then struck her son multiple times. The blows left no bruises
on the son’s body.
On September 30, 2022, DCYF, with dependency petitions previously filed for all
three children, filed an emergency motion to place all three children in out-of-home care.
A declaration from DCYF social worker Beth Willey accompanied the motion. In
response to the motion, the juvenile court conducted a hearing on the afternoon of
September 30. The clerk’s papers and the resultant order do not label the hearing as a
shelter care hearing, but rather an emergency dependency hearing on a motion to remove
children from the home. The courtroom minutes show that the juvenile court entertained
argument of counsel, but they do not show whether the court heard testimony from
witnesses. The juvenile court granted the emergency motion and ordered all three
children removed from the mother’s home. To repeat, C.V.I. already lived elsewhere.
On September 30, 2022, the juvenile court signed an order for removal from the
mother’s home. The order’s findings declared in part:
A manifest danger exists that the child[ren] will suffer serious abuse
or neglect if the child is not removed from the home and an order under
RCW 26.44.063 would not protect the child[ren] from danger.
12
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
There is reason to know the child[ren] [are] . . . Indian child[ren] as
defined in RCW 13.38.040 and 25 U.S.C. § 1903(4). The child[ren] [are]
in need of out of home placement to prevent imminent physical damage or
harm to the child.
....
Reasonable and active efforts have been made by DCYF to prevent
or eliminate the need for removal of the child from the child’s home and
have been unsuccessful. The Department’s active efforts as articulated in
the Department’s declaration and other filings are incorporated herein.
There [sic] efforts have been unsuccessful.
Clerk’s Papers (CP) at 232 (emphasis added).
Two months later, on November 29 and 30 and on December 6, 2022, the juvenile
court conducted a dependency fact-finding hearing.
When ICWA or WICWA applies to a child, DCYF must show it exerted active
efforts to prevent a breakup of the family and to return the Native American children to
their parents. At the dependency hearing, the mother argued that DCYF had not engaged
in the active efforts. During the fact-finding trial, the mother’s counsel asked Jessica
Richter, of SPARC, regarding DCYF’s active efforts to keep the mother and her children
together. The questioning elicited an objection from the State’s counsel:
Q. So what active efforts have been taken since March 29th?
MS. CULVER [State’s attorney]: Objection, Your Honor. I believe
he’s attempting to elicit testimony, which at this point would be relevant to
dispositional issue. Active efforts are relevant with respect to placement.
MR. HENRY [Mother’s attorney]: On the recent—may I respond?
THE COURT: Yeah, go ahead.
MR. HENRY: On the recent, I think it’s [In re Dependency of]
J.M.W. [199 Wn.2d 387, 844, 514 P.3d 186 (2022)] case, Your Honor,
there needs to be a showing of active efforts before removal. I don’t think
13
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
that it’s strictly a dispositional issue. It’s both dispositional and Fact
Finding.
THE COURT: I tend to agree with that assessment, that it’s both.
And I would make findings, if I need to, about a case that comes after the
time period we’re talking about and how it applies at this point. So the
question’s allowed.
You can answer what you think you’ve—the active efforts that
you’ve done.
RP at 349. Richter then testified to the mother’ resistance to assistance.
After Indian expert Robin Haskell broached the subject of active efforts during her
testimony at the fact-finding hearing, the mother’s counsel focused on active efforts,
which elicited another objection from the State’s attorney. This time, however, the
juvenile court sustained the objection.
Q. Well, between March 29th of this year and September 13th of this
year, do you feel that the Department has provided active efforts to prevent
the break up—
MS. CULVER: Objection.
Q. —of the Indian family?
THE COURT: What’s the objection?
MS. CULVER: It’s getting into a dispositional issue, Your Honor.
MR. HENRY: We feel it’s part of Fact Finding in regards to the
recent J.M.W. case, Your Honor, that there has to be a showing that there’s
been active efforts. Once the Department has a reason to know that this
may be an Indian family, there needs to be a showing of active efforts prior
to removal.
THE COURT: Doesn’t that go to disposition then?
MR. HENRY: I feel it goes to [dependency] Fact Finding, Your
Honor.
THE COURT: But whether or not the children are dependent
children?
MR. HENRY: The children are—there has been a showing, I
believe, from the Department that the children are Indian children.
14
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
THE COURT: Correct.
MR. HENRY: The Department has testified through Ms. Rose that
she was aware on March 29th of this year that the children were probably
Indian children. She certainly had a reason to know on that date and I
believe it would be our opinion that the recent J.M.W. case would indicate
that there needs to be a provision of active efforts, which is a Fact Finding
issue prior to actual removal of the children, which did not take place until
September.
THE COURT: Okay. The objection is sustained. The active efforts
goes to whether or not the children will be placed in out-of-home care, not
whether or not they are dependent. And this Court isn’t going to hear an
opinion from Ms. Haskell about active efforts without more foundation,
which can be done at the disposition, if needed.
Because if there’s no Fact Finding, the case is doing dismissed and
the children go home. This active-efforts piece is whether or not, if the
Court does find the children dependent, where will they be placed? And
that’s—you can definitely call Ms. Haskell again and ask her these same
questions, but lay some foundation of what her opinion would be based on.
MR. HENRY: Thank you, Your Honor.
Q. Ms. Haskell, as of the date of September 13th, when the
children—well, a day or two after September 13th, perhaps the 15th, when
the children were physically removed from the mother, is it your opinion
that there was a difficulty or a possibility or a probability of imminent,
physical damage or harm to the children if they were not removed?
MS. CULVER: Objection.
THE COURT: What’s the objection?
MR. HENRY: Same ruling?
THE COURT: I don’t know what—
MS. CULVER: Again, Your Honor—again, Your Honor, it goes to a
dispositional issue is he’s specifically talking about something that is with
respect to placement—out-of-home placement and that is not at issue here.
THE COURT: That objection is sustained. Same issue. This isn’t a
precluded issue. It can be used at disposition, if needed. Again, if the
Court finds that the children not dependent, there won’t be a disposition.
There won’t be testimony on this piece. If the Court does find the children
dependent, there will be a disposition and there will be testimony on this
piece.
15
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
RP at 489-92.
Next the mother’s counsel asked Robin Haskell about the possibility of imminent
physical damage or harm to the children when removed in September. The State’s
counsel objected on relevance grounds, and the court sustained the objection.
On December 13, 2022, the court issued an oral ruling granting the State’s request
for a dependency for all three children. The juvenile court made no mention then of
active efforts by DCYF to prevent the family breakup.
On January 27, 2023, the juvenile court entered an order confirming its oral ruling.
At the beginning of the written order, the juvenile court wrote:
The evaluation and finding of whether the Department has made
active efforts to prevent the breakup of the Indian family is a dispositional
issue and not a required finding to establish dependency.
CP at 972.
The dependency order included findings of fact, based on testimony at the
dependency hearing, which we quote in part. More findings of fact are quoted in
Appendix A.
2. The children are dependent as to the mother, …, pursuant to RCW
13.34.030(6), because they have no parent, guardian, or custodian capable
of adequately caring for them, such that they are in circumstances which
constitute a danger of substantial damage to their psychological or physical
development.
3. Ms. [Mother]’s barriers to being a safe parent include unresolved
substance abuse issues, unresolved mental health problems, parenting
deficiencies including inappropriate supervision, and domestic violence
16
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
issues, all of which are impacting her ability to safely parent and
demonstrate an inability to meet her children’s physical and emotional
needs as set forth in the facts below.
....
11. Ms. [Mother] believes she is being targeted and that the concerns
underlying the Department’s petitions are not valid. Ms. [Mother] lacks
insight into the significance of her mental health issues that lead to her
inability to safely parent. Ms. [Mother] lacks insight into how her choices
harm her children.
....
46. Before the dependency petition was filed, Ms. [Mother] had the
legal right to refuse to participate in any of the recommended services
offered by DCYF. It was her right to refuse to sign Releases of Information
(ROIs). It was her right to refuse to allow social workers into her home or
to speak to her children. Exercising these rights is the choice she made.
That choice showed her lack of insight into the need for her skills as a
parent to increase.
....
92. Ms. Van Grimbergen worked with [the mother] to try to get her
into services. [The mother] was resistant to scheduling a mental health
assessment, indicating she wanted to do that service through SPARC, and
needed to finish the chemical dependency assessment first.
....
96. [The mother] contacted social worker Keller about the
Department sharing information with SPARC. [The mother] yelled at Ms.
Keller, expressing frustration about the Department sharing information
about [the mother’s] cocaine use with SPARC. [The mother] did not
disclose her use of methamphetamine to Ms. Keller.
....
99. [The mother] disregarded the court’s order to sign releases of
information. [The mother] testified she did this because she was afraid the
released information would be used against her. [The mother’s] choice in
this respect reflects her prioritization and protection of herself above all else
and her unwillingness to adhere to the court’s order designed to keep her
children safe.
....
114. [The mother] has continued to be resistant to the Department’s
efforts to engage her in services and problem solve [sic] barriers to her
17
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
engagement. For instance, while [the mother] has complained about
service locations, some of the services are available virtually. [The mother]
has continued to state she does not need the services and the Department’s
involvement with her family is ridiculous.
115. Social worker Keller has had extensive contact with [the
mother] and described the volatility [the mother] can display, frequently
yelling at Ms. Keller, including an instance when [the mother] followed
Ms. Keller to her car after Ms. Keller had travelled to [the mother’s] home
to bring her a gas card. [The mother’s] inability to regulate her emotions is
a barrier to her making progress with the challenges she faces and creates
circumstances which constitute a danger of substantial damage to her
children’s psychological and physical development.
....
131. [The mother] does not currently possess the skills to adequately
or safety parent [R.R.], [C.J.J.I.], and [C.V.I.]. [The mother] is not willing
or able to acknowledge the need to immediately engage in services to
address these barriers, including with respect to her mental health and
substance abuse.
CP at 973-88 (emphasis added).
The juvenile court conducted a disposition hearing on January 27, 2023. In
advance of the hearing, Robin Haskell, the Tribe’s QEW, submitted a written declaration
that read in part:
The Department has worked with this family extensively over the
years. The Department was involved by court order through a four year
dependency, in which the Tribe was also involved. After the last
dependency was dismissed it was just a few months until the Department
started receiving reports about [the mother]’ parenting that posed a safety
risk to her children. The Department again attempted to work with [the
mother] short of court involvement for several months, but [the mother]
would not acknowledge that she needed help. As the concerns continued to
mount, the Department took the necessary step of pursuing another
dependency for the safety and welfare of the children. Since the petitions
were filed, the Department has continued to be actively involved with this
18
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
family trying to engage [the mother] to participate in the case plan,
supporting the needs of the children, and actively engaging the Tribe
through updates, inclusion, and case planning. It is my opinion that the
Department has made active efforts to offer and provide remedial services
and rehabilitative programs to this family to keep them together, but those
efforts have so far proved unsuccessful
CP at 956-57 (emphasis added). Haskell’s declaration did not list any of the purported
active efforts.
During the disposition hearing, the mother objected to the delays in the
proceedings. The mother highlighted that the dependency fact-finding hearing occurred
74 days after removal and was broken up into many days. The disposition hearing
occurred on January 27, 2023, 135 days after removal.
Also, during the disposition hearing, the mother contended that DCYF had failed
to exert active efforts. She emphasized that DCYF did not offer mental health services,
domestic violence services, or transportation services despite the mother’s car sometimes
being inoperable. DCYF did not offer assistance with housing despite the mother
occasionally reporting difficulty with management at Catholic Charities and with other
tenants bothering her and her family.
At the disposition hearing, Robin Haskell testified contrary to her testimony in her
declaration regarding DCYF’s active efforts:
Q. Are you able to state that the Department provided active efforts
to prevent the break up of the Indian family between March 29th of 2022,
and September 16th of 2022?
19
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
A. It hasn’t been carried out the way I would have wanted it to. All I
know is that they did the best they could with the situation to my knowledge.
Q. What do you mean by “the best that they could?”
A. I think they did have a family search and tried to contact people.
I don’t think their efforts were very successful because there wasn’t anyone
that they could (unintelligible)—excuse me—with contact to have a
placement for the children. They placed the children in the—they placed
them with the best option that was available.
Q. Well, that was in September of 2022, is that right, the placement
was made?
A. Yes.
....
Q. Can you speak at all to what efforts the Department made to
prevent the break up of the family before September 16th of 2022?
A. I don’t think so.
Q. So when you say you don’t think so, you don’t think that they
made any or you don’t think that you can speak to that issue?
A. I—I—um, let me think. Hmm, I think that they might have—I
don’t know. I don’t—I can’t remember exactly. You said September 16th?
Before that?
Q. Before the children were first removed in September.
A. I can’t recall anything about—about that. I mean, as far as I
know they did. But given the circumstances, they were put in a position
where, I mean, there’s nobody there. Nobody available for the kids to be
placed there—different home, like relatives, as far as I know. I am not too
sure about that.
RP at 571-73 (emphasis added).
In her oral ruling after the disposition hearing, the juvenile court commented:
I want to address the valid objection that the mother argues today
about how long it takes to have this resolved. That’s—it’s unacceptable. I
mean, I don’t know how to explain to her the efforts made, the number of
families who didn’t get hearings and still it took that long in those small
increments. And she doesn’t have to accept my explanation because it’s an
unacceptable explanation.
20
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
RP at 606.
At the conclusion of the disposition hearing, the juvenile court ruled that the
children would remain outside the home during the dependency. On February 21, 2023,
the court entered the following findings, in part:
P. The court finds the children were harmed while in [the mother’s]
care, including by enduring chronic stress which has physical impacts,
demonstrating sexualized and other high risk behaviors, and emotional
damage, which has long lasting impacts. This harm was due to [the
mother’s] actions and choices as impacted by her mental health, substance
use, domestic violence and exposure to unsafe individuals, instability and
inability to control her behavior, and inability or unwillingness to provide
her children with appropriate supervision. As these issues have not been
mitigated, the children continue to be at imminent risk of physical damage
or harm in [the mother’s] care.
Q. The children are at imminent risk of physical damage or harm
and substantial and immediate danger or threat of such danger should they
be returned to [the mother]’s care.
....
T. The facts establish by clear, cogent, and convincing evidence,
including testimony of a qualified expert witness (QEW), that continued
custody by the parent is likely to result in serious emotional or physical
harm to the children.
a. Robin Haskell is the tribal representative for these matters and the
tribe’s designated QEW. The court is satisfied that Ms. Haskell meets the
statutory definition of ICWA QEW.
b. Ms. Haskell testified and submitted a sworn declaration for the
record in which she expressed the opinions that the DCYF has made active
efforts to offer and provide remedial services and rehabilitative programs
to this family to keep them together, but those efforts have so far proved
unsuccessful, and that continued custody of the children by the parents
would likely result in serious physical or emotional damage to the children.
21
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
c. Ms. Haskell supports out of home placement for the children. She
further supports placement in foster care as there are currently no willing
appropriate and available relative placements.
....
U. DCYF made active efforts by attempting to work with [the
mother], both before and after filing the dependency petition, to engage her
in remedial services and rehabilitative programs to prevent the breakup of
the Indian family beyond simply providing referrals to such services, but
those efforts have been unsuccessful.
V. [The mother] was previously involved in a four-year dependency,
was dismissed in December 2021. DCYF again became involved with the
family in March 2022, when it began receiving new reports concerning [the
mother’s] ability to safely parent. DCYF continued to attempt to engage
[the mother] between March and September 2022, when [the mother]
persisted in declining services and stated she did not need DCYF
assistance. [The mother] had the right at that point to decline, but DCYF
continued to try to work with [the mother]. The court finds DCYF made
active efforts to prevent the breakup of the family prior to the filing of the
dependency petition, as further detailed in the testimony of SW Cassidy
Rose during the dependency trial and in her sworn declaration filed in
support of this hearing, incorporated by reference as findings of fact. These
active efforts include but are not limited to the following
[See Appendix B for the detailed findings].
W. DCYF has continued to make active efforts since the filing of the
petition in September 2022 and subsequent removals of [the mother’s]
children from her care. [The mother] has continued to be resistant to the
Department’s unrelenting efforts and attempts to engage her, including
when services were court ordered. These efforts were detailed in the
testimony of SW Mattie Keller during the dependency trial and in her
sworn declaration filed in support of this hearing, incorporated by reference
as findings of fact. These active efforts include but are not limited to the
following:
[See Appendix B]
....
Y. Active and reasonable efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and eliminate the need for removal of the
children from the children’s home. The specific preventive services offered
22
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
or provided are outlined in the Dependency Petitions, trial testimony, and
declarations and are incorporated by reference. These efforts have been
unsuccessful.
CP at 1312-13, 1318 (underlining in original) (emphasis added).
LAW AND ANALYSIS
Active Efforts
On appeal, the mother contends that the juvenile court, at every hearing, needed to
find that DCYF exerted “active efforts” to prevent the breakup of her family. The mother
also contends the court erred when finding a manifest danger of serious abuse or neglect
if the children are returned home. Finally, the mother assigns error to numerous predicate
findings of fact in the disposition and dependency orders.
Despite first broadly asserting that the juvenile court failed to enter a finding of
active efforts at every hearing during the dependency proceeding, the mother focuses on a
failure to enter a finding at the completion of the dependency hearing. The State agrees
that the juvenile court did not find, at the dependency hearing, that DCYF engaged in
active efforts. According to the State, the court need not have entered a finding then
because the court did not decide placement at the time of adjudging dependency. As the
argument continues, active efforts became relevant only during the disposition hearing.
We agree with the mother.
23
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
The federal Indian Child Welfare Act and a state analog act, the Washington
Indian Child Welfare Act, created the concept of “active efforts.” Our opinion does not
focus on the nature of active efforts, but rather at what hearings must the juvenile court
find DCYF exercised active efforts.
The United States Congress enacted ICWA in 1978 because of the
disproportionately high rate of forced removal of Native American children from their
traditional homes and their Native American cultures. Genocide by violence and disease
did not suffice. European Americans also insisted on cultural genocide by stealing
Native American children. Before enactment of ICWA, states forcibly removed as many
as 35 percent of all Indian children, mostly from intact American Indian families with
extended family networks, and placed them in predominantly non-Indian homes, which
had no relation to American Indian cultures. 25 U.S.C. § 1901(4); Troy R. Johnson, The
State and the American Indian: Who Gets the Indian Child?, 14 WICAZO SA REV. 197,
208 (1999). The per capita rate of Indian children in foster care was fifteen times higher
than the rate for non-Indians. 25 U.S.C. § 1901(4); H.R. REP. NO. 95-1386, at 9 (1978),
reprinted in 1978 U.S.C.C.A.N. 7530, 7531. The removal demonstrated a lack of
understanding by child welfare workers of the role of extended families in tribal culture
and threatened tribal survival by removing children at such a high rate. The process
damaged the emotional lives of Native American children, who lost touch with their
24
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
people and culture. RED POWER: THE AMERICAN INDIANS’ FIGHT FOR FREEDOM 124
(Alvin M. Josephy Jr. et al. eds., 2d ed. 1999).
Congress deemed the interests of tribal stability as important as the best interests
of the child. RED POWER, supra, at 124. Congress also concluded that the best interests
of Native American children did not necessarily echo the best interests of non-Native
American children, since the former traditionally enjoy larger extended families and
tribal relationships in their culture. B.J. JONES, MARK TILDEN & KELLY GAINES-STONER,
THE INDIAN CHILD WELFARE ACT HANDBOOK: A LEGAL GUIDE TO THE CUSTODY AND
ADOPTION OF NATIVE AMERICAN CHILDREN 12-13 (2d ed. 2008).
After adoption by the United States Congress of ICWA, the Washington State
Legislature passed its own version of the act. Both the federal act and the state act
overlap in their provisions. Washington courts interpret the acts as analogous and
conterminous unless one provides greater protection, in which case the more protective
act will supplant the less protective act. 25 U.S.C. § 1921; In re Dependency of J.M.W.,
199 Wn.2d 837, 844, 514 P.3d 186 (2022); In re Adoption of T.A.W., 186 Wn.2d 828,
844, 383 P.3d 492 (2016).
When Indian children are the subjects of a proceeding, ICWA and WICWA
impose more exacting requirements on DCYF than in other cases. In re Adoption of
T.A.W., 186 Wn.2d 828, 841 (2016). Important here, ICWA and WICWA require the
25
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
Department to engage the parent in active efforts at family preservation. 25 U.S.C. §
1912(d); RCW 13.38.130(1); In re Dependency of J.M.W., 199 Wn.2d 837, 840 (2022);
In re Dependency of G.J.A., 197 Wn.2d 868, 875 (2021). In a non-WICWA setting,
DCYF need only exert reasonable efforts. The active efforts requirement benefits not
only the Indian family, but also implicates the tribe’s rights. In re Dependency of G.J.A.,
197 Wn.2d 868, 909 (2021). Active efforts protect “the rights of tribes to continue to
exist and protect the next generation.” In re Dependency of G.J.A., 197 Wn.2d 868, 909
(2021).
We quote sections of ICWA and WICWA which help to identify the hearings at
which the State must establish its exertion of active efforts to prevent a family breakup.
25 U.S.C. § 1912(d), a portion of ICWA, pronounces:
Remedial services and rehabilitative programs; preventive measures.
Any party seeking to effect [sic] a foster care placement of, or termination
of parental rights to, an Indian child under State law shall satisfy the court
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.
(Emphasis added) (boldface omitted). 25 U.S.C. § 1903(1) defines “foster care
placement:”
“foster care placement” which shall mean any action removing an
Indian child from its parent or Indian custodian for temporary placement in
a foster home or institution or the home of a guardian or conservator where
the parent or Indian custodian cannot have the child returned upon demand,
but where parental rights have not been terminated;
26
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
RCW 13.38.130(e) and RCW 13.38.040(3), critical fragments of WICWA, mirror the
ICWA provisions. The former reads:
(1) A party seeking to effect [sic] an involuntary foster care
placement of or the involuntary termination of parental rights to an Indian
child shall satisfy the court 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.
(Emphasis added.) The latter statute declares:
(a) “Foster care placement” which means any action removing an
Indian child from his or her parent or Indian custodian for temporary
placement in a foster home, institution, or with a relative, guardian,
conservator, or suitable other person where the parent or Indian custodian
cannot have the child returned upon demand, but where parental rights have
not been terminated.
(Emphasis added.) WICWA adds a section not found in ICWA. RCW 13.38.040(1)(a)
reads:
(ii) In any dependency proceeding under chapter 13.34 RCW, in
which the petitioner is seeking the continued out-of-home placement of an
Indian child, the department or supervising agency must show to the court
that it has actively worked with the parent, parents, or Indian custodian in
accordance with existing court orders and the individual service plan to
engage them in remedial services and rehabilitative programs to prevent the
breakup of the family beyond simply providing referrals to such services.
(Emphasis added.) Thus, under WICWA, the State must show “active” work, if not
active efforts, not only when it seeks to remove the children from home, but also in any
proceeding in which it seeks to continue out-of-home placement.
27
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
To reiterate, RCW 13.38.130(e) demands that DCYF show it employed active
efforts to prevent a family breakup before any “involuntary foster care placement.”
RCW 13.38.040(3)(a) defines a “foster care placement” as “any action removing an
Indian child from his or her parent.” Based on a reading of the two statutes, the State
argues that the law does not demand a finding of active efforts at every hearing during the
dependency process. According to the State, ICWA and WICWA’s active efforts
requirement is triggered by the type of placement sought, rather than the type of hearing
held. In so arguing, the State does not recognize that RCW 13.38.040(1)(a)(ii) demands
that the State show “active” work with the parent in any dependency proceeding, in
which the State seeks “continued out-of-home placement.”
The Washington Supreme Court has rejected the State’s position, in situations
during which a child will remain outside the home, based on the patent terms of
RCW 13.38.040(1)(a)(ii). In re Dependency of G.J.A., 197 Wn.2d 868, 875(2021), the
high court wrote:
Among their many requirements, ICWA and WICWA mandate that
the State provide “active efforts” to prevent the breakup of Indian families.
25 U.S.C. § 1912(d); RCW 13.38.130. Active efforts must be thorough,
timely, consistent, and culturally appropriate. 25 C.F.R. § 23.2; RCW
13.38.040(1)(a). The “active efforts” requirement is distinct from the
“reasonable efforts” requirement in non-Indian child custody cases because
it requires both a higher level of engagement from the Department and
culturally appropriate services. To ensure that the Department meets the
minimum requirements of ICWA and WICWA, every dependency court
that oversees cases involving Indian families has the responsibility to
28
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
evaluate the Department’s actions. WICWA requires the court to conduct
this evaluation at every hearing when the Indian child is placed out of the
home, and the BIA recommends this at every hearing. RCW
13.38.040(1)(a)(ii); BIA, U.S. DEP’T OF INTERIOR, GUIDELINES FOR
IMPLEMENTING THE INDIAN CHILD WELFARE ACT 43 (2016)
(hereinafter BIA GUIDELINES). If the Department’s actions fall below
ICWA and WICWA standards, the court must order the Department to do
more to comply with its statutorily imposed obligations before the case can
proceed to termination.
WICWA, unlike ICWA, requires the dependency court to enter a finding at every hearing
when the Indian child resides out of the home.
In In re Dependency of G.J.A., 197 Wn.2d 868 (2021), the juvenile court
terminated the mother’s rights to all children after finding that DCYF engaged in active
efforts. The five children were affiliated with the Blackfeet Nation. DCYF argued that
the mother’s appeal was moot because the court found the Department made active
efforts before and after a five-month time period on which the mother focused. The
mother did not challenge the findings of active efforts outside of this five-month window
of time. The Supreme Court held that whether DCYF exerted active efforts during other
time periods did not dispense of its obligation during the time referenced by the parent.
Because DCYF must provide consistent active efforts, the juvenile court must review the
Department’s actions at every hearing when the child is placed out of the home. A prior
finding of active efforts does not alleviate the department’s burden at any other point in a
dependency.
29
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
The State deems In re Dependency of G.J.A. friendly because the case involved a
finding of active efforts at the termination stage. The Supreme Court, in Dependency of
GJA, did not limit its ruling to a termination case, or even a disposition hearing.
In re Dependency of J.M.W., 199 Wn.2d 837 (2022), concerned two shelter care
hearings that happened shortly after J.M.W. was placed into foster care. The Supreme
Court held that the juvenile court must assess whether DCYF engaged in active efforts at
the time of the shelter care hearing since such a hearing occurs in the context of a
dependency and child custody proceeding under RCW 13.38.040(3) and under the rubric
of a foster care placement according to RCW 13.38.040(1)(a) and .040(3)(a). The
Supreme Court analyzed RCW 13.38.040 and other sections of WICWA. The court
wrote that “child custody proceedings” included foster care placements. RCW
13.38.040(3)(a). “Foster care placement” means “any action removing an Indian child
from his or her parent . . . for temporary placement . . . where the parent or Indian
custodian cannot have the child returned upon demand.” RCW 13.38.040(3)(a).
The Washington Supreme Court, in In re Dependency of J.M.W., further observed
that RCW 13.38.040(1)(a) declares that “[a]t a minimum,” the department must take
timely and diligent efforts as part of its active efforts. Other portions of WICWA insist
that active efforts be expended when possible. RCW 13.38.130(1), for example, says:
A party seeking to effect an involuntary foster care placement of . . .
an Indian child shall satisfy the court that active efforts have been made
30
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
to . . . prevent the breakup of the Indian family and that these efforts have
proved unsuccessful.
(Emphasis added.) Thus, DCYF held the obligation to apply active efforts to the family
before removing the child from his home and initiating a dependency. The active efforts
included timely and diligent efforts.
In In re Dependency of J.M.W., the juvenile court made a finding of active efforts
at the initial shelter care hearing. The court did not make this finding at a later shelter
care hearing but, instead, concluded that “‘there ha[d] been no change in circumstances
since the shelter care hearing on September 27, 2019.’” In re Dependency of J.M.W.,
199 Wn.2d 837, 843-44 (2022) (citation omitted). The juvenile court thereby committed
error. RCW 13.38.140(2) requires an express finding. Since DCYF had not established
it had made active efforts between the time of the initial shelter care hearing and the
second shelter care hearing, J.M.W. should have been returned to his parents unless the
department had established doing so would have subjected him “to substantial and
immediate danger or threat of such danger.” RCW 13.38.160.
In In re Dependency of A.T., 29 Wn. App. 2d 687, 541 P.3d 1079 (2024), an
appeal from an order of dependency, this court held that the juvenile court erred when
finding DCYF engaged in active efforts. Although the juvenile court had also conducted
the disposition hearing by the time of the appeal, this court did not suggest that WICWA
only required a finding of active efforts at the disposition hearing.
31
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
Assuming the juvenile court need not assess active efforts at the dependency
hearing, such a rule might assume that the disposition hearing will follow immediately.
RCW 13.34.110(4) prescribes:
Immediately after the entry of the findings of fact, the court shall
hold a disposition hearing, unless there is good cause for continuing the
matter for up to fourteen days. If good cause is shown, the case may be
continued for longer than fourteen days.
(Emphasis added.)
The State also contends that RCW 13.34.130 dictates that the juvenile court not
make any placement decision or active efforts finding before the disposition hearing. The
opening to RCW 13.34.130, a statute that applies to all dependency proceedings, not just
Indian children proceedings, declares:
If, after a [dependency] fact-finding hearing pursuant to RCW
13.34.110, it has been proven by a preponderance of the evidence that the
child is dependent . . . and after a disposition hearing has been held
pursuant to RCW 13.34.110, the court shall enter an order of disposition
pursuant to this section.
(1) The court shall order one of the following dispositions of the
case:
(a) Order a disposition that maintains the child in his or her
home. . . .
(b)(i) Order the child to be removed from his or her home and into
the custody, control, and care of a relative or other suitable person, the
department, or agency responsible for supervision of the child’s placement.
RCW 13.34.130 does not expressly preclude a finding of active efforts during the
dependency fact-finding hearing. Regardless, the court makes a disposition ruling, albeit
32
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
temporarily, at the shelter care hearing, which can be modified at any time. No statute
specifically prevents the court from returning the child to the home immediately on
conclusion of the dependency action. As the juvenile court recognized, if the court does
not order a dependency, the children go home. By implication, the State seeks to
continue the out-of-home placement at the dependency hearing.
As noted by the State, DCYF, under federal regulations, possesses no duty to take
active efforts before removing a child from a parent’s home. In re Dependency of
J.M.W., 199 Wn.2d 837, 847 (2022). Washington has not adopted similar regulations,
and Washington state law provides stronger protections for families. In re Dependency of
J.M.W., 199 Wn.2d 837, 847 (2022). We interpret WICWA in light of its overriding
legislative purpose: to avoid the breakup of Native families. In re Dependency of J.M.W.,
199 Wn.2d 837, 847 (2022). Also, the Bureau of Indian Affairs, despite the federal
regulations, recommends the court “inquire about active efforts at every court hearing
and actively monitor compliance with the active efforts requirement.” BIA, U.S. DEP’T
OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT 43
(2016) (hereinafter BIA GUIDELINES) (emphasis added).
Washington statutes and case law emphasize the imperative of active efforts and
encourages monitoring of active efforts by the juvenile court at every opportunity. The
duty to engage in active efforts begins before removal of the children from their home.
33
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
In re Dependency of A.T., 29 Wn. App. 2d 687 (2024). Once the State files a dependency
action, the state agency must engage in active efforts to reunite the family if the children
remain outside the home. In re Dependency of G.J.A., 197 Wn.2d 868, 887 (2021). Key
to “active efforts” is the department’s duty to actively engage the parent in a thorough
and timely manner to help reunify the Indian family. In re Dependency of G.J.A., 197
Wn.2d 868, 873-75, 888, 891 (2021). DCYF must be consistent in its provision of active
efforts throughout the dependency, and it is not relieved of its duty to provide active
efforts simply because it made sufficient efforts at another time during the dependency.
In re Dependency of A.L.K., 196 Wn.2d 686, 704, 478 P.3d 63 (2020). The dependency
court has the responsibility to evaluate active efforts at every dependency proceeding
when the child is placed out of the home. RCW 13.38.040(1)(a)(ii). Any delay in
adequately engaging the parent only accelerates the destruction of the Native family’s
cultural identity and ties to their community. In re Dependency of G.J.A., 197 Wn.2d
868, 888 (2021).
We ruminate on reasons for demanding an adjudication of active efforts at every
hearing, including the dependency hearing. The law wishes to rectify centuries of
horrific treatment of Native Americans and the unjustified removal of Indian children
from their family and their Native American nation. Even today, a bias lingers that leads
to unduly high numbers of Native American children being removed from home and kept
34
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
from parents and their community. Therefore, the law demands continuous and
extraordinary efforts before and after removing an Indian from his or her home and
family. The court should monitor those extraordinary efforts at every opportunity. The
Washington Supreme Court deems active efforts so important that it has held the futility
doctrine, applied in almost all, if not all, other areas of the law, inapplicable in an Indian
Child welfare proceeding. In re Dependency of G.J.A., 197 Wn.2d 868, 903 (2021).
The mother’s children’s dependency proceeding suffered substantial delays as
recognized by the juvenile court’s apology to the mother. One hundred and thirty-five
days elapsed from the removal of the children on September 30, 2022 and the disposition
hearing on January 27, 2023. On September 30, the court entered a finding of active
efforts. Nevertheless, during the 135-day delay, the children remained placed outside the
home despite no additional finding by the juvenile court that DCYF continued to exert
active efforts. The mother’s disposition hearing occurred on January 27, 2023, 52 days
after the last testimony in the dependency fact-finding hearing on December 6 and 45
days after the court’s oral ruling of dependency on December 18.
The juvenile court signed the order of dependency on January 27, the day the
disposition hearing commenced. Thus, the State may argue that the disposition hearing
commenced immediately after the ending of the dependency hearing. But testimony
ended on December 6, and the juvenile court issued its oral ruling on December 13. The
35
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
purpose of conducting the disposition hearing immediately after the dependency hearing
is to hurry the process that concerns the well-being of children. By the end of testimony
at the dependency hearing, 67 days had passed since the only finding of active efforts.
By the oral announcement of the dependency ruling, 74 days had passed since the only
finding of active efforts. By the time of the disposition hearing, 129 days had passed
since the only finding of active efforts.
We address some anomalies found in this dependency proceeding. This appeal’s
circumstances include the mother, who opposed the dependency, being non-Indian, and
the Indian father of the oldest two children declining to participate in this proceeding
after never having engaged in fathering the children. To our knowledge, no Native
American nation or Native American family seeks custody of the two children.
Nevertheless, the terms of ICWA and WICWA apply when a child is Indian regardless of
any lack of participation from the Indian parent or the parent’s tribe. 25 U.S.C. §
1903(4); RCW 13.38.040(7). ICWA seeks in part to impart the unique values of Native
American culture to each Indian child regardless of the participation of the Indian parent.
In re Jeremiah G., 172 Cal. App. 4th 1514, 1520, 92 Cal. Rptr. 3d 203 (2009).
The youngest child of the mother is non-Indian. Thus, ICWA and WICWA
should not apply to R.R. No party, however, suggests in its or her brief that different
rules apply to R.R.
36
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
REMEDY
The dependency court may impose a dependency on an Indian child without a
finding of active efforts in limited circumstances. Since the State must exert active
efforts only to justify out-of-home placement, the court may order a dependency with the
child residing at home. Alternatively, the court may order an out-of-home dependency if
DCYF shows that return home “would subject the children to substantial and immediate
danger or threat of danger.” 25 U.S.C. § 1920; RCW 13.38.160; In re Dependency of
A.L.K., 196 Wn.2d 686, 690-91, 703 (2020).
After the disposition hearing, the trial court entered finding of facts U and W,
which declared that DCYF engaged in active efforts. In addition, the court entered
finding of fact Q, which reads “The children are at imminent risk of physical damage or
harm and substantial and immediate danger or threat of such danger should they be
returned to [the mother’s] care.” One might argue that these findings rectify the failure of
the trial court to decide, at the dependency hearing, whether DCYF exerted active efforts
because it later entered such a finding. Also, based on finding of fact Q, the children
could not be returned home regardless of active efforts.
We disagree with these arguments. A substantial delay occurred between the
ending of the dependency hearing and the disposition hearing. A late finding thwarts the
goal of constant monitoring by the court of active efforts. If the court had reviewed
37
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
active efforts at the dependency hearing and found the efforts wanting, DCYF may have
then employed plentiful, if not unending, efforts to reunite the family by the time of the
disposition hearing such that returning the children home would not have endangered or
threatened to endanger the children’s safety.
Because of the importance of continuing active efforts, we could remand for the
trial court to reconstruct whether or not DCYF had expended active efforts as of
December 6, the last day of the dependency hearing. But such a reconstruction would be
difficult, if not impossible, because of the passage of time. The court will not order an
impractical or unworkable remedy. Dix v. ICT Grp., Inc., 160 Wn.2d 826, 840 n.8, 161
P.3d 1016 (2007); Northwest Animal Rights Network v. State, 158 Wn. App. 237, 244
n.6, 242 P.3d 891 (2010); Proctor v. Huntington, 146 Wn. App. 836, 851, 192 P.3d 958
(2008), aff’d, 169 Wn.2d 491, 238 P.3d 1117 (2010). Nevertheless, because the
dependency will continue on remand, we direct the trial court to promptly review again
DCYF’s efforts and determine whether the efforts pass muster as active efforts under
ICWA and WICWA.
The mother challenges the sufficiency of evidence to support a finding of danger
to her children. Because we direct the trial court, on remand, to promptly assess active
efforts, we also direct the court, if DCYF did not exert active efforts, to either return the
children to their home or conduct an evidentiary hearing and, based on the evidence, find
38
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
that return to the home would subject the children to substantial and immediate danger or
threat of such danger.
CONCLUSION
We remand to the superior court for further action in the dependency proceeding.
The trial court shall, within ten days of the issuance of our mandate, again address
whether DCYF has engaged in active efforts. If DCYF has not, the court should either
return the children to their home or enter a finding of a substantial and immediate danger
or risk of danger to the children if returned home.
Fearing, J.
WE CONCUR:
Pennell, J. Staab, A.C.J.
39
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
APPENDIX A
24. On May 18, 2022, DCYF received another intake, submitted by
Greenacres Middle School. This report was made the day after one of the
boys had “run off.” [The mother] blamed [C.V.I.] and tried to “fist fight”
her. After the fight, [C.V.I.]’s hips, back, arm, and leg hurt. [C.V.I.] also
relayed that she constantly cooks, cleans, and takes care of her younger
brothers while [the mother] is with her boyfriend. [C.V.I.] was fearful of
her mother’s boyfriend, who she reported carries a firearm. (See Exhibit
P6).
25. Social Worker Rose spoke with [C.V.I.] after this intake and
confirmed [C.V.I.]’s statements to Greenacres. In addition, she learned of
[the mother]’ physical discipline of and a resulting bruise to [R.R.].
Another intake was generated based on [C.V.I.]’s report. There was no
credible evidence that the intake was based on a vendetta against Ms.
Mother.
....
27. DCYF received several more intakes regarding [the mother]
within the span of a month. There was no credible evidence that any of
these intakes were based on a vendetta against [the mother].
a. On May 24, 2022, Greenacres Elementary School reported
[C.J.J.I.] walked to Walmart alone with another child. The report also
detailed that [C.J.J.I.] reported he consumed alcohol to go to sleep (See
Exhibit P3).
b. On May 26, 2022, school was released in the afternoon at 3:15
p.m. [C.J.J.I.] was not able to ride the bus home from school due to his
inappropriate behavior. The school called [the mother] several times to
pick him up but was unable to reach her. [C.V.I.] came to attempt to pick
[C.J.J.I.] up from school but was unable due to her being a minor. Another
adult Esther Miller, came to pick up [C.J.J.I.], but was not previously
approved for pick-up. Ms. Miller later returned with [the mother] to pick
[C.J.J.I.] up, around 5:30 p.m. School staff observed [the mother] had
marks on her arm and was hard to follow in conversation.
c. On June 2, 2022, Greenacres Elementary School reported [C.J.J.I.]
was not staying in his home at night, that his mother had not been home,
that he was not being fed dinner, that he was not being adequately
supervised, and was not given his medicine (See Exhibit P4).
40
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
d. On June 3, 2022, Greenacres Elementary School reported
[C.J.J.I.] arrived home and the doors were locked, that he found another
family to stay with, had no dinner, and could not recall the last time he had
seen his mother (See Exhibit P5).
....
40. [The mother] sometimes left the children alone at night after they
went to sleep and would spend the night with her boyfriend at another
location. During some of these nights, [C.V.I.] would also leave, leaving
[C.J.J.I.] and [R.R.] alone and unsure of who was in charge of them. The
children would occasionally come to their neighbors’ homes in the early
morning, unsure of where their mother had gone. [The mother] prioritized
her relationship with her boyfriend above her responsibilities to her
children.
....
42. During the spring and summer of 2022, Social Worker Rose
continued her efforts to contact [the mother] by phone and text message,
visit the home, and try to locate her in other locations, offer her community
resources, request that she provide a UA test, offer her a ride to UA testing,
and work to ensure the children had appropriate supervision. [The mother]
was not receptive to these efforts and stated none of the Department’s
concerns were valid and that she did not want any assistance from the
Department.
43. During this time, the Department scheduled several Family Team
Decision Meetings (FTDMs) and also reached out to coordinate with the
Cheyenne River Sioux Tribe. The Tribe indicated they would not be
involved unless court process began. [The mother] participated in two
FTDMs and did not appear at or participate in the others.
44. Social Worker Rose also continued to investigate intakes,
including speaking to the children and other collaterals. . . .
45. The children were enrolled in childcare at the MLK Community
Center, but only attended five days between July and August 2022. The
State paid for the childcare. [The mother] was provided the opportunity for
safe, supervised care of her children, and chose not to continue it.
....
67. On September 16, 2022, the court granted the Department’s
requested pick-up order for [R.R.] and [C.J.J.I.]. The order was executed
after the school day. The elementary school principal, Ms. Kent, testified
that [C.J.J.I.] was very upset and clearly understood the implications of
41
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
what was happening. [The mother] came to the boys’ school that afternoon
to assist in getting [C.J.J.I.] into the transport vehicle. [The mother] told
[C.J.J.I.], “You good bro? You good? We talked about this.” [The
mother’s] comments to [C.J.J.I.] indicate she has contemplated and spoken
to her children about the possibility of their removal from her care. Ms.
Mother’ comments to [C.J.J.I.] also display a lack of sensitivity to his
emotional response to that stressful situation
....
71 Mattie Keller was assigned as the ongoing DCYF social worker
and began working with the family after the initial shelter care hearing. . . .
....
77. DCYF referred [the mother] for Intensive Family Preservation
Services (IFPS) after the children were returned to [the mother] at the
shelter care hearing. Angela Van Grimbergen received the referral and
began working with [the mother] on September 28, 2022. [The mother]
told Ms. Van Grimbergen she believed the Department’s requests of her
were ridiculous and that her use of cocaine was one-time and not a cause
for concern. [The mother] refused to allow social worker Keller to take an
oral swab sample to test for substance use. . . .
....
79. [C.V.I.] disclosed to Ms. Rose that since being home, she had
observed [the mother] hitting [C.J.J.I.] and stating to him, “If you don’t
shut the fuck up, I’ll beat the shit out of you.” This report generated
another intake. (Hearsay evidence admitted for basis for intake not for the
truth of the matter asserted.)
....
84. [The mother] spoke to Ms. Van Grimbergen after the hearing and
over the weekend. Ms. Van Grimbergen encouraged [the mother] to stay
sober. With encouragement from DCYF, Ms. Van Grimbergen kept
working with [the mother] through October 6, 2022, despite the children
having been removed from the home.
....
95. SPARC [Spokane Addiction Recovery Center] had availability
for [the mother] to begin outpatient treatment within two days and would
have been able to have a mental health assessment within a week. SPARC
also offers EMDR (eye movement desensitization and reprocessing)
treatment, which [the mother] testified was something she wanted to
pursue.
42
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
....
97. [The mother] did not follow the SPARC recommendations and
instead pursued an intake with New Horizons. [The mother] testified that
she did not feel comfortable working with SPARC and wanted to go
somewhere closer to her home and which offered EMDR.
98. DCYF scheduled a mental health assessment for [the mother]
with Phoenix Counseling Services. [The mother] attended this assessment,
but the appointment ended abruptly when [the mother] declined to sign
releases of information.
....
101. Since the children have been out of home, DCYF has had
challenges in establishing regular visitation for [the mother], due to her
prior history with various agencies, agencies declining visits due to safety
concerns they have experienced with the family, and the chaotic nature of
the visits, which require two visitation supervisors.
102. DCYF supervised several visits to ensure continued contact
between [the mother] and her children while it sought a regular visitation
provider. Social worker Keller observed [the mother] to have difficulty
meeting the children’s physical and emotional needs during these visits.
....
109. [The mother] is seeking other opinions to avoid engaging in
recommended chemical dependency treatment as she lacks insight into her
need for this treatment.
....
116. Ms. Keller attempted to safety plan with [the mother] regarding
her relationship with Mr. Nason. [The mother] dismissed the attempts
because Mr. Nason is incarcerated and she reports they are no longer in a
relationship. Despite [the mother’s] report that she is no longer in a
relationship with Mr. Nason, for much of the trial, Mr. Nason’s mother,
Cheryl Harty, was present in the court room as a support for [the mother].
[The mother] reported physical violence to the Department, but because the
children were not present, that was not a problem.
....
137. The children currently do not have a parent, guardian, or
custodian capable of adequately caring for them, such that they are in
circumstances which constitute a danger of substantial damage to their
psychological or physical development.
43
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
CP at 975-88 (emphasis added).
44
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
APPENDIX B
[Finding of fact V]
a. The Department previously offered services to [the mother]
through a four year dependency case. [The mother] completed mental
health assessments, chemical dependency assessments, and parenting
assessments. [The mother] was offered therapy and treatment, as well as in
home parenting support. [The mother] participated in the WISE program
for [C.J.J.I.]. [The mother] participated in triple P parenting, intensive
family preservation services, and family therapy.
b. During the recent investigation, the Department researched a
number of collateral sources and interviewed those sources to have the best
information possible on how to assist the family and the barriers faced.
Social worker reviewed Famlink records, as well as other collateral records
available to SW—WHALES, LE reports, Barcode/ACES, court viewer—in
attempts to gather additional information as to parents to adequately assess.
The Department met with the children and [the mother] on a number of
occasions to assess needs, barriers, and attempt to successfully engage [the
mother]. Social worker was unable to complete a fully comprehensive
assessment due to [the mother]’ repeated unwillingness to engage. Social
worker made ongoing efforts to interview and assess needs of the children.
[C.V.I.], [C.J.J.I.] and [R.R.] were interviewed at school on multiple
occasions. Social Worker pursued collaterals (school/medical/dental) in an
attempt to further assess the children’s needs. Social worker contacted
collaterals identified, including housing case manager, school counselor
and staff, identified social supports, neighbors, and other collaterals
identified from Famlink history. Social worker completed additional
searches in Barcode, ACES, court viewer, and Facebook for parents and
possible relatives/supports. The Department conducted a relative search
and made relative contacts in attempts to identify additional family
information supports and possible placement options. Family contacted
either were not willing or not safe or appropriate for placement. Messaged
relatives identified in Facebook. The Tribe has also assisted in identifying
relatives. The Department also attempted contact with the fathers of the
children, [R.R], Sr. and [B.I.], who are not involved in their children’s lives
and were not responsive to Department efforts to locate and engage them.
Social worker requested parent locator in attempts to locate [R.R.] and
[B.I.] and followed leads by going to possible homes in attempt to contact
45
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
parents and locate family. The Department discussed community-based
services including culturally competent services and provided [the mother]
with written information on services, to include Safe Families, WISE, the
Vanessa Behan Nursery, Native Project, and American Indian Culture
Center. Social worker provided CD treatment resources provided for YFA
connections, American Indian Community Center, American Behavioral
Health Systems, New Horizon Outpatient, and Compassionate Addiction
Treatment. Housing resources provided including: Eviction Resolution
Pilot Program, NW Mediation, Volunteer Lawyers Program, Safe Families,
Vanessa Behan. The family had been involved with the Native Project,
however, [the mother] refused the request to sign a release of information
so the Department could assess. The Department also offered hard copy
information on services to [the mother’s] apartment manager to provide to
[the mother] at a time when she may be more receptive. [The mother]
consistently denied the need for Department support and resources. Social
worker discussed chemical dependency and domestic violence services
with [the mother]. [The mother] denied a problem and reported no need for
services. Social worker completed a comprehensive domestic violence
assessment based on collateral information gathered, police reports, and
child interviews. Domestic violence resources were offered to [the mother]
due to the significant concerns in the home. [The mother] initially denied
the domestic violence in the home and refused services. Nevertheless, the
Department persisted in attempting to engage [the mother], by attempting
to contact her through announced and unannounced visits to the home,
phone calls, text messages, emails, social media contacts, and letters in the
mail. The Department continued to offer UAs and offered to drive [the
mother] to the UA testing. The Department discussed the importance of
storing substances out of reach of children and offered a lockbox to [the
mother], which she declined. Social worker also continued to address the
children’s wellbeing with [the mother], requesting she update her children’s
medical and engage in a WISE referral made by school staff. This social
worker tailored her approach to working with [the mother], communicating
in a calm, respectful manner, attempting to understand [the mother’s]
perspective and needs, and attempting to deescalate [the mother] when
necessary. The Department organized and held four FTDMs, to attempt to
problem solve with the family and identify solutions. The Department
worked with [C.V.I.] on a CHINS petition prior to her testimony that she
was in the home. The Department was aware of the tribal affiliation on
46
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
these matters and reached out to update and engage the Cheyenne River
Sioux Tribe during its investigation. The Tribe indicated it would only
become involved if there was court involvement. The Department
respected that guidance and informed the Tribe when it was moving toward
filing dependency petitions and has consistently worked with the Tribe
since.
[Finding of Fact W]
a. The Department has worked diligently and actively, devoting
significant time and resources and maintaining frequent communication
with [the mother]. DCYF attempted to support and sustain [the mother’s]
care of the children when they were returned to her care on 9/20/22 through
providing intensive family preservation services, and extending that service
beyond when it is designed to close after the children were removed on
9/30/22. DCYF has made timely referrals for all court ordered and
recommended services, including providing resources for culturally
competent services and attempted to problem solve with [the mother] as she
identifies barriers or resistance to those services, including offering oral
swab when [the mother] would not UA and supporting participation in
virtual services to address transportation concerns. DCYF has consistently
engaged [the mother] in person, including at [the mother’s] home, by
phone, by text message, and provided hard copy information about services
and resources as well. DCYF has provided [the mother] with a lockbox,
gas cards, grocery card, and worked to reinstate financial supports for [the
mother]. DCYF scheduled appointments for [the mother] until she
expressed disagreement and her preference that the Dept not assist in that
way. DCYF has provided appointment reminders to [the mother], provided
transportation for the children to maintain educational stability, and
provided professional lice services for [C.V.I.]. DCYF has continued to
pursue completed releases of information and follow up with providers [the
mother] has indicated she would prefer to obtain information and
availability. DCYF has continued to spend significant time with the
children to best address their needs, has made referrals for clothing
vouchers, and is in regular contact with educators and other collateral
sources to ensure their needs are being met.
b. SW has continued to contact and try to engage [the mother]
despite her stated and demonstrated resistance. SW has encouraged [the
mother] to become engaged in services and tried to offer solutions to the
barriers [the mother] identifies. To reduce transportation barriers to engage
47
No. 39593-6-III (Anchor Case)
Consolidated: 39594-4-III, 39595-2-III
In re the Welfare of: C.J.J.I.
in her services due to [the mother’s] reports of her vehicle not being
drivable, SW has offered bus passes and routes and provided monthly gas
cards to [the mother]. SW also offered [the mother] a ride to a job
interview to allow her to attend an FTDM regarding placement of [C.V.I.]
([the mother] declined). On 12/23/2022, the Department paid [the
mother’s] past due phone bill through the month of January in order for her
to maintain communication for visitation, services, and with this SW. SW
has called UGM Motors to ask about car repair and tires for [the mother’s]
vehicle as she has indicated the condition of her vehicle to be a barrier at
times. SW has called chemical dependency agencies including Sequoia
Detox Center, Royal Life Centers, Spokane Falls Recovery, and Riverside
Recovery, to check on virtual treatment availability so [the mother] could
start engaging in services. SW has maintained consistent contact with the
children’s schools, drove to pick up [C.V.I.]’s backpack from placement to
bring to her at school, and called Lutheran Community Services to get
[C.V.I.], [C.J.J.I.], and [R.R.] screened for WISE services at a trauma-
informed agency. All three children have screened-in for WISE services.
SW has also continued to keep [the mother] informed of any upcoming
appointments for the children so she may attend. The Department has
worked to ensure consistent visitation making multiple referrals including
emergent referrals and providing supervised visits itself as a gap measure.
The Department also continues to keep the Tribe informed of the status of
the case and invites and involves the Tribe in case planning to actively
collaborate.
X. It is contrary to the children’s best welfare to return home. The
children should be placed or remain in the custody, control, and care of
DCYF because:
[X] There is no parent or guardian available to care for such child; or
[ ] The parent or guardian is not willing to take custody of the
child; or
[X] A manifest danger exists that the child will suffer serious abuse
or neglect if the child is not removed from the home and an order under
RCW 26.44.063 would not protect the child from danger.
CP at 1315-18.
48