In The Matter Of The Parental Rights To S.a.m-s.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of: No. 85959-5-I

S.A.M-S. DIVISION ONE

ORDER DENYING MOTION

FOR RECONSIDERATION,

WITHDRAWING OPINION,

AND SUBSTITUTING

OPINION

Appellant, J.M., has moved for reconsideration of the unpublished opinion

filed on February 10, 2025. The panel has considered the motion pursuant to

RAP 12.4 and has determined that the motion should be denied, the opinion

should be withdrawn, and a substitute opinion be filed.

Now, therefore, it is hereby

ORDERED that the appellant’s motion for reconsideration is denied; and it

is further

ORDERED that the unpublished opinion filed on February 10, 2025 is

withdrawn; and it is further

ORDERED that a substitute unpublished opinion be filed.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 85959-5-I

In the Matter of the Dependency of:

DIVISION ONE

S.A.M-S.

UNPUBLISHED OPINION

DÍAZ, J. — After a six day trial, the superior court terminated J.M.’s parental

rights to her daughter, S.A.M-S. 1 J.M. and S.A.M-S. are members of a federally

recognized tribe. J.M. argues the Department of Children, Youth, and Families

(DCYF) violated the Washington Indian Child Welfare Act (WICWA), chapter 13.38

RCW, and its federal counterpart the Indian Child Welfare Act (ICWA), 25 U.S.C.,

chapter 21, by failing to engage in “active efforts” to prevent the breakup of their

family in four ways. J.M. claims DCYF wrongfully transferred her case to DCYF’s

“permanency unit,” failed to investigate the qualifications of her preferred mental

health provider, failed to adequately respond to her requests for family therapy,

and failed to conduct a complete mental health assessment. J.M. further avers the

1 We use the initials of the mother and daughter to protect their identities.

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court’s finding that J.M.’s parental deficiencies would not be remedied in the “near

future” was unsupported or inappropriately backwards looking, and that the court

failed to properly consider a guardianship, rather than termination. While holding

the State to the exacting standard demanded by ICWA, WICWA, and our case law

interpreting those laws, we disagree with each argument, and affirm the order

terminating J.M.’s parental rights to S.A.M-S.

I. BACKGROUND

J.M. is the mother of S.A.M-S. 2 Both J.M. and S.A.M-S. are members of

the Aleut Community of Saint Paul Island in Alaska, a federally recognized tribe.

In April 2020, the Lummi Nation Police Department arrested J.M. after a

domestic violence incident. The police report states S.A.M-S. was “exposed to this

act of domestic violence,” but “looked to be uninjured physically.” Immediately

after this incident, S.A.M-S. moved in with her grandmother. In August 2020, the

court entered an order that placed S.A.M-S. in foster care. In tribal court, J.M. later

pleaded guilty to various charges related to the incident, including assault and

battery in the third degree with a domestic violence designation and child abuse or

neglect.

Contemporaneously, in April 2020, DCYF filed a dependency petition in the

Whatcom County Superior Court. In March 2021, J.M. agreed with DCYF to jointly

file a stipulated dependency order, which the court later accepted. Pursuant to the

stipulation, the court ordered that DCYF provide and J.M. complete various

2 While no father was joined in the dependency case, DCYF obtained an order

allowing for notice and termination of the parental rights of any putative father.

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services, including:

• Substance abuse treatment, including random urinalysis and hair follicle

testing; 3

• A mental health assessment and any recommended treatment, including “a

neuro-psychological evaluation with a parenting component;”

• A domestic violence batterer’s assessment and any recommended treatment; 4

• Age appropriate parenting instruction, including a demonstration of parenting

skills during visitation. 5

Over 18 months later, in November 2022, DCYF filed a petition to terminate J.M.’s

parental rights to S.A.M-S. DCYF alleged the parental deficiencies arose from

J.M.’s untreated “long-standing mental health issues,” and that there were “no

indications she has engaged in domestic violence services.” DCYF also

emphasized that S.A.M-S. had been “dependent for more than 30 months.” The

following month, the Aleut Community intervened under WICWA and ICWA.

The court held a six-day bench trial in September 2023. The court heard

testimony from 12 witnesses. As will be elaborated later, the court heard testimony

that S.A.M-S. had already lost one caregiver due to J.M.’s threats and behavior.

The court also heard testimony that S.A.M-S. was bonding well with her second

caregiver, a tribal family affiliated with the Tlingit Haida tribe, a sister tribe of the

Aleut community.

3 J.M. commendably completed a substance use assessment as well as intensive

outpatient and relapse prevention treatment. This requirement is not an issue on

appeal.

4 The court found J.M. noncompliant with her domestic violence treatment

requirements, and J.M. assigns no error to that finding. But DCYF does not argue

and, thus, we do not reach whether J.M.’s failure to comply with this important

treatment may be an independent ground to affirm the order of termination. Wash.

Prof’l Real Estate, LLC v. Young, 163 Wn. App. 800, 818 fn.3, 260 P.3d 991 (2011);

RAP 12.1.

5 J.M. also completed an age-appropriate parenting instruction. This requirement

is not an issue on appeal.

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Later that same month, the court entered an order terminating J.M.’s

parental rights. J.M. now appeals.

II. ANALYSIS

A. Overview of the Principles Governing Termination, WICWA, and ICWA

Courts must be cognizant of a parent’s “‘fundamental liberty interest in the

care custody, and management of their children.’” In re Parental Rights to

M.A.S.C., 197 Wn.2d 685, 698, 486 P.3d 886 (2021) (quoting In re Welfare of D.E.,

196 Wn.2d 92, 102, 469 P.3d 1163 (2020)). “Likewise, children have ‘a vital

interest in preventing erroneous termination of their natural relationship’ with their

parents.’” Id. (internal quotation marks omitted) (quoting D.E., 196 Wn.2d at 103).

To effectuate these principles, “[c]hapter 13.34 RCW creates a two-step

framework” generally for all termination proceedings. In re Parental Rights to

K.M.M., 186 Wn.2d 466, 478, 379 P.3d 75 (2016). The “first step focuses on the

adequacy of the parents, while the second step looks at the child’s best interests.”

Id. Further, “[t]o protect the vital interests at stake, ‘the burden of proof in a

termination trial is on [DCYF] and should never be shifted to the parent.’” M.A.S.C.,

197 Wn.2d at 698 (quoting D.E., 196 Wn.2d at 103).

Courts are also bound to apply ICWA and WICWA during termination

proceedings involving Indian 6 children. In re Dependency of G.J.A., 197 Wn.2d

868, 887, 489 P.3d 631 (2021). ICWA “did not emerge from a vacuum.” Haaland

6 We follow our Supreme Court guidance and “use the term ‘Indian’ when referring

to the statutory language contained in the Indian Child Welfare Act and

Washington State Indian Child Welfare Act . . . In all other areas, we use the term

‘Native.’” In re Dependency of G.J.A., 197 Wn.2d 868, 873 n.1, 489 P.3d 631

(2021).

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v. Brackeen, 599 U.S. 255, 297, 143 S. Ct. 1609, 216 L. Ed. 2d 254 (2023)

(Gorsuch, J., concurring). Congress passed ICWA in “direct response to the mass

removal of Indian children from their families during the 1950s, 1960s, and 1970s

by state officials and private parties” which “was only the latest iteration of a much

older policy of removing Indian children from their families—one initially

spearheaded by federal officials with the aid of their state counterparts nearly 150

years ago.” Id.; G.J.A., 197 Wn.2d at 875 (“[t]hrough the passage of ICWA and

[WICWA], Congress and the Washington State Legislature intended to redress our

nation's long-standing and widespread abusive practice of removing Native

children from their families and destroying Native communities.”).

ICWA, and subsequently WICWA, aims to address how “‘States . . . have

often failed to recognize the essential tribal relations of Indian people and the

cultural and social standards prevailing in Indian communities and families’” and

to “preserve tribal sovereignty and Native families.” G.J.A., 197 Wn.2d at 873

(alteration in original) (quoting 25 U.S.C. § 1901(5)), 886. “Where ICWA and

WICWA differ, the court applies the provision that offers greater protections to

Indian families.” Id. at 886.

B. WICWA and ICWA’s Active Efforts Requirement

Of the obligations ICWA and WICWA impose, most relevant to this appeal

is the requirement that “[t]hroughout the dependency, the state agency is required

to engage in active efforts to reunite the family.” Id. at 887. This requirement

means DCYF must “engage the parent in a thorough, timely, consistent, and

culturally appropriate manner to help reunify the Indian family if the conclusion of

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the dependency court is that the children must be removed from the care of their

parent(s).” Id. at 888.

Active efforts also “‘should be conducted in partnership with the Indian child

and the Indian child’s parents, extended family members, Indian custodians, and

Tribe.’” Id. at 889 (quoting 25 C.F.R. § 23.2). Further, active efforts must reflect

“deference to the tribe at each step of the dependency, including determination of

Indian status, placement, and services.” Id. at 887; see also RCW 13.38.040(1)(a)

(adding that the services offered “shall include those services offered by tribes and

Indian organizations whenever possible.”).

The overall “purpose of the active efforts standard is to ‘prevent the breakup

of the Indian family.’” Id. at 890 (quoting 25 U.S.C. § 1912(d); RCW 13.38.130(1)).

“[A]ny delay in adequately engaging the parent or failure to do so in a culturally

appropriate manner only accelerates the destruction of the Native family’s cultural

identity and ties to their community.” Id. at 888. Further, our Supreme Court has

described active efforts as the “‘gold standard’” of child welfare and “one of the

most important protections under ICWA and WICWA.” Id. at 888 (quoting BUREAU

OF INDIAN AFFAIRS, US DEP’T OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN

CHILD W ELFARE ACT 39 (2016)).

When courts assess DCYF’s fidelity to engage in active efforts, “ICWA and

WICWA do not permit the application of the futility doctrine.” Id. at 875. As our

Supreme Court explained, native parent’s “distrust continues to permeate today,

and Native families often do not trust child welfare workers,” meaning “[a]pplication

of the futility doctrine would only perpetuate trauma and distrust.” Id. at 906. As

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such, DCYF “is not excused from providing active efforts unless it can demonstrate

to the court it has made sufficient efforts and those efforts ‘have proved

unsuccessful.’” Id. at 875 (quoting 25 U.S.C. § 1912(d); RCW 13.38.130(1)). In

other words, a “parent’s action, inconsistency, or inaction does not excuse [DCYF]

from providing active efforts.” Id. at 876.

Whether DCYF engaged in active efforts is a mixed question of law and

fact. In re Dependency of A.L.K., 196 Wn.2d 686, 697, 478 P.3d 63 (2020). We

review the underlying findings for substantial evidence, but review de novo whether

those findings satisfy ICWA and WICWA. Id.

“Substantial evidence is evidence sufficient to persuade a fair-minded

rational person of the truth of the declared premise.” In re Welfare of A.B., 181

Wn. App. 45, 59, 323 P.3d 1062 (2014). In gauging whether there is substantial

evidence for a court’s findings, “[w]e do not make credibility determinations or

weigh evidence.” Id. at 60. We “defer to the trial court’s weighing of the evidence

and witness credibility determinations.” In re Parental Rights to D.H., 195 Wn.2d

710, 718, 464 P.3d 215 (2020).

Here, the court generally found that “DCYF made active efforts” and “has

worked in close collaboration with the Aleut Community of St. Paul Island Tribe

since the inception of the underlying dependency” and the tribe “supports the

finding of active efforts.” J.M. argues the court erred in so finding, making four

overarching arguments. All four are unavailing.

1. Permanency Unit Transfer 7

7 DCYF argues that J.M.’s argument on the permanency unit transfer is

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J.M. first argues that DCYF displayed an “obvious intention to break up [her]

Indian family . . . when it moved her case into [the permanency] unit designed to

have cases end in adoption or guardianship,” which essentially “fast track[ed]” the

matter and “put a thumb on the scale” towards termination. As such, J.M. argues

the decision to move her case to the permanency unit “undercuts any active efforts

finding.” We disagree for three reasons.

First, J.M. fails to cite any legal authorities beyond a generalized invocation

of the principles of WICWA and ICWA discussed in G.J.A. and Haaland. J.M. cites

no authority holding that any type of purely administrative decision can violate

WICWA or ICWA, nor does she point to any specific “statutory duty” in ICWA or

WICWA which the decision violated. DeHeer v. Seattle Post-Intelligencer, 60

Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in support

of a proposition, the court is not required to search out authorities, but may assume

that counsel, after diligent search, has found none.”).

Second, DCYF’s “decisions about how to manage internal resources,

including decisions about what staff is to be assigned to what cases, fall squarely

within the purview of the executive branch.” In re Dependency of W.W.S., 14 Wn.

App. 2d 342, 367, 469 P.3d 1190 (2020). This discretion is codified at RCW

43.216.025(3), which states that “[u]nless specifically limited by law, the secretary

“unpreserved” as it was not raised below. J.M. acknowledges that there was “no

contemporaneous request to dismiss the termination” on this basis. But J.M. asks

us to exercise our discretion because the “implications regarding ICWA and

WICWA justify this Court’s review.” Given the stakes at issue in this case, we

choose to exercise our discretion to consider this issue. RAP 2.5(a) (this “court

may refuse to review any claim of error which was not raised in the trial court.”)

(emphasis added).

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has the complete charge and supervisory powers over” DCYF. Here, J.M. fails to

identify any limit in the law, specific or otherwise, which curtails DCYF discretion.

J.M. responds that courts may “intercede to protect the rights of individuals

when the state agency acts . . . ‘are . . . predicated upon a fundamentally wrong

basis.’” (Quoting Coal. for the Homeless v. Dep’t of Soc. & Health Servs., 133

Wn.2d 894, 913-14, 949 P.2d 1291 (1997)). And J.M. simply asserts the transfer

was “fundamentally wrong.”

J.M., however, provides no citation to the record explaining why it was

fundamentally wrongly or what effect it had on DCYF’s engagement with J.M. On

the contrary, J.M.’s counsel conceded at oral argument that they “don’t have . . .

anything in the documentation in the record” as to how the transfer affected

DCYF’s active efforts, other than possibly reflecting implicit bias. Wash. Ct. of

Appeals oral argument, Dependency of: S.A.M-S., No. 85959-5-I (November 6,

2024), at 3 min., 31 sec. through 3 min., 53 sec., video recording by TVW,

Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-

of-appeals-2024111126/?eventID=2024111126. We decline to comb the record

to find support for appellant’s argument that the decision was “fundamentally

wrong” where J.M. points to no discernable effect from the action, or to any

evidence that the decision arose from implicit bias. Fishburn v. Pierce County

Planning & Land Servs. Dep’t, 161 Wn. App. 452, 468, 250 P.3d 146 (2011). 8

8 To be clear, we are not saying that the failure to explain why the State’s

placement of J.M.’s case in that unit precludes review all together. We agree with

our sister division that “courts have been specially charged with monitoring

compliance with ICWA and WICWA regardless of the parties’ compliance with

expectations regarding error preservation” and that, as we next do, “we will

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Third, the testimony of DCYF’s Katherine Graff—uncontested at trial and

unchallenged on appeal—provides substantial evidence that the decision to

transfer J.M.’s case rather than undercut the court’s active efforts finding, actually

supports it.

Graff, a supervising social worker with over 19 years of experience, testified

that that “specific unit was becoming known as a permanency unit, so . . . I was

going to be supervising both adoption-focused cases as well as [Child and Family

Welfare Services] cases.” The name “permanency unit” was “an internal change

by [DCYF], but it was certainly related to a lot of recent legislation in the last few

years that has appropriately decreased the number of adoptions, and focused

more on guardianship cases, and so we recognized that the unit was going to be

handling both.” This testimony contradicts J.M.’s argument that the unit itself

“creates a perverse incentive to err on the side of removal.”

As for DCYF’s decision to transfer J.M.’s case, Graff testified that the case

“came to our unit in February of 2023,” was transferred to her when the previous

social worker ended their employment in May, and that it was “not typical[]” for a

supervisor like her to take a case like J.M.’s. She took on J.M.’s case because it

had “been a very difficult case for social workers to hold” due to the “number of

independently review the record to discern whether [DCYF] complied with the

active efforts requirement.” In re Dependency of R.D., 27 Wn. App. 2d 219, 233,

532 P.3d 201 (2023). However, where a party clearly identifies the alleged failure

to engage in active efforts (here, e.g., placing J.M.’s case in the permanency unit),

the party must still provide “reference[s] to the record” or “citation [to] authority.”

Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549

(1992). Otherwise, we need not consider the claim more than it was argued by the

interested party. Id.

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threats that have occurred,” causing previous social workers and other DCYF staff

to leave the case. Graff testified that she “had to make a decision as to whether I

would reassign this case to someone else, and possibly risk losing other staff” or

“continue to carry the case, myself, rather than put another person in that position.”

This testimony undermines J.M.’s claim that DCYF transferred the case to fast

track it towards termination. Rather, there is substantial evidence that the transfer

balanced J.M.’s behavioral health issues and DCYF’s staffing challenges.

In short, we hold the above evidence was “sufficient to persuade a fair-

minded rational person” that DCYF’s decision to transfer J.M.’s case to the

permanency unit was not inherently in conflict with its duty to engage in active

efforts to unite J.M.’s family, as she claims. A.B., 181 Wn. App. at 59.

2. Family Therapy

J.M. next argues DCYF failed to adequately respond to her requests for

family therapy with S.A.M-S. in contravention of WICWA and ICWA. J.M. cites to

our Supreme Court’s holding that active efforts “are not limited to court-ordered

services . . . but ‘must necessarily encompass all barriers to reunification.’”

(Quoting G.J.A., 197 Wn.2d at 897). She argues that, although “[DCYF] should

have been aware of the weakening bond between [J.M.] and S.A.M-S,” DCYF

“unilaterally determined” family therapy was not appropriate and “did not make a

referral or any effort to provide this service” or otherwise “work with [J.M.] on her

request.” We disagree.

The court found that J.M. indeed “requested the additional service of family

therapy but given the context of when these requests were made – during

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escalated email communications which also contained numerous threats against

multiple individuals – this is not a service that is or would have been capable of

correcting [J.M.’s] parental deficiencies” as “[h]er underlying trauma must be

adequately treated before family therapy involving her daughter would be

constructive or even safe.” There is substantial evidence for this finding.

At trial, DCYF explained their decision to not proceed with family therapy,

citing safety concerns arising during past visitations between J.M. and S.A.M-S.

For example, the court heard testimony that towards the end of one visit, J.M.

became extremely agitated when S.A.M-S. indicated she wished to leave. J.M.’s

behavior escalated to the point that DCYF staff no longer felt safe and contacted

the police. The court also received evidence that J.M. sent emails to DCYF staff

that included threats of self-harm and death threats. DCYF staff further testified at

trial, J.M. has “great difficulty holding space for her daughter’s opinions and needs

and feelings of safety” and, “for therapy to be successful, a child has to be safe

being there.”

The court also heard ample testimony that J.M.’s behavior at visitations and

elsewhere had a direct negative effect on S.A.M-S. For example, the court heard

testimony that allowing S.A.M-S. to refuse visits with J.M. resulted in “a marked

decrease in [S.A.M-S.]’s anxiety” as she “was having several days of buildup of

anxiety before knowing a visit was coming.” As further example, S.A.M-S.’s

behavior was also “very evident after visits” with J.M. as her “meltdowns and

emotions were just out of control usually a day or two after visits.” In sum, the

court heard testimony detailing repeated and specific examples of the issues

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arising from visitations between J.M. and S.A.M-S. and how that informed DCYF’s

decision to forgo family therapy.

The court also heard testimony from an Aleut Community representative.

The representative testified that the tribe “had the opportunity to meet regularly

with . . . third-party providers, mental health providers” and thus was “aware of

services and education” offered. From this, the tribe believed “active efforts have

been offered to this family through and through.” This included their opinion that

DCYF “attempted to support [J.M.] in having those visits [with S.A.M-S.] at their

least restrictive and most meaningful” and “support[ed] a change in visitation to

become more strict for the safety and wellbeing of [S.A.M-S.]; additionally, for other

people that . . . were around [J.M.].” The representative also testified they were

aware that J.M. had requested family therapy. In sum, the tribe supported DCYF’s

response while aware of J.M.’s requests and visitation issues. As such, the tribe’s

position counsels in favor of upholding the court’s active efforts finding. G.J.A.,

197 Wn.2d at 887 (“active efforts” must include “deference to the tribe at each step

of the dependency.”).

Together, this testimony contradicts J.M.’s claim that DCYF’s decision on

family therapy was unilateral or bereft of any effort to provide this service.

At oral argument, J.M.’s counsel argued for the first time that the real failure

was that “there’s no documentation that [DCYF] reached out to a single [family

therapy] provider to see whether it could be successful in any way shape or form.”

Wash. Ct. of Appeals oral argument, supra at 6 min., 54 sec. through 7 min., 23

sec. (citing G.J.A., 197 Wn.2d at 889-90). Indeed, our Supreme Court has held

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that DCYF “must document its provisions of active efforts in the record . . . to

enable the court to reach an informed conclusion about [DCYF’s] provision of

active efforts.” G.J.A., 197 Wn.2d at 893-94 (emphasis added). This argument

fails because DCYF in fact explained their reasoning at length for not pursuing

family therapy, providing a sufficient record for review. Id.

J.M. also cites to In re Dependency of A.T. for the proposition that DCYF

“cannot give up merely because they were initially unsuccessful, but must

‘brainstorm new strategies’ to meet a parent’s needs.” (Quoting In re Dependency

of A.T., 29 Wn. App. 2d 687, 707, 541 P.3d 1079 (2024)).

This argument ignores that A.T. also held that “[a]ctive efforts must be . . .

‘tailored to the facts and circumstances of the case.’” 29 Wn. App. 2d at 704

(quoting 25 C.F.R. § 23.2). We do not understand ICWA and WICWA to require

courts to demand a certain type of service, despite the clear unfortunate realities

of a given case, such as here, where there is unrebutted testimony that J.M.’s

behavioral health challenges negatively impacted S.A.M-S.’s own well-being and

the safety of DCYF staff.

In short, the underlying findings are supported by substantial evidence, and,

on our de novo review, those findings satisfy ICWA and WICWA. DCYF has

demonstrated to us that it “made sufficient efforts” to repair the child-parent

relationship, “and that those efforts ‘proved unsuccessful.’” G.J.A., 197 Wn.2d at

875 (quoting 25 U.S.C. § 1912(d); RCW 13.38.130(1)).

3. Doctoral Level Clinician

Third, J.M. argues DCYF failed to engage in active efforts related to her

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preferred mental health provider.

By way of additional background, pursuant to and shortly after the court’s

entry of the stipulated dispositional order, Dr. Marnee Milner conducted J.M.’s

neuro-psychological evaluation. 9 Afterwards, Dr. Milner recommended additional

treatment:

(a) Trauma-Focused Cognitive Behavioral Treatment [CBT] with a

therapist trained to employ such an empirically based program to

address her underlying trauma and subsequent symptoms and

effects of her interpersonal functions; (b) Long Term Psychotherapy

with a doctoral level clinician skilled in working with personality

disorders to incorporate . . . CBT techniques to address the

personality traits and subsequent behavioral, emotional, and social

dysfunction.

(Emphasis added.)

J.M. shortly thereafter initiated services with Shawna Gallagher, who is

affiliated with the Seattle Indian Health Board. While DCYF supported J.M.’s

continued visits with Gallagher, it quickly and repeatedly informed her that

Gallagher was not a “doctoral level clinician” and, thus, she was not receiving the

services recommended by Dr. Milner and as required by the court’s order.

After trial, the court found that J.M. “failed to comply” with the requirement

that she receive treatment from a “doctoral level clinician” as “she was unwilling to

see an alternate provider to the mental health therapist who[m] she chose on her

own, Shawna Gallagher.” The court further found J.M. “agreed that [DCYF] had

explained to her that Ms. Gallagher did not meet the qualifications . . . because

9 At trial, Dr. Milner testified that “a neuropsychological evaluation looks at brain

and behavior, so brain functioning, looking at different domains of functioning . . .

that correspond to different areas of the brain and to see strengths and

weaknesses in a person’s performance.”

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she practices as a licensed independent clinical social worker and not as a doctoral

level clinician.”

J.M. does not challenge the above findings and, instead, argues DCYF

failed to sufficiently investigate Gallagher’s qualifications to confirm she was a

“doctoral level clinician.” J.M. appears to refer to testimony by DCYF staff that they

had a “repetitive conversation” with J.M. that they were not “able to verify that

[Gallagher] had a Ph.D.” and that they “could not reach her by phone, but we could

see department of health records online, and could see that she was practicing as

a licensed clinical social worker.” J.M., in turn, avers that active efforts are not met

when they call the provider “an unspecified number of times” and check a website,

rather than do a thorough search of her qualifications and “brainstorm” new

strategies. We disagree for four reasons.

First, J.M. ignores that Gallagher provided a “Therapist Disclosure

Statement,” which J.M. herself signed in March 2022. While this statement lists

Gallagher’s Doctorate of Psychology, it also states in the first sentence of its first

paragraph that “Gallagher is currently practicing as a Master Level – Licensed

Independent Clinical Social Worker.” (Emphasis added.) In other words,

Gallagher’s own documents concede the point that she is not licensed or practicing

as a doctoral level clinician. There is substantial evidence that no further

investigation was needed.

Second, and more substantively, J.M.’s argument is also undermined by

other testimony. Dr. Milner reviewed Gallagher’s visit notes and testified her

treatment did not fully satisfy the recommendations. Specifically, Dr. Milner’s

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testified that, while Gallagher and J.M. were “trying to . . . work on some of the

trauma,” Gallagher’s treatment would not “go towards the [second] part of [her]

recommendation,” namely, long term psychotherapy incorporating CBT

techniques. Regardless of Gallagher’s title or credentials, or how they were

determined, there was substantial evidence that Gallagher was not trained to

perform an essential part of the therapy Dr. Milner recommended.

Third, at trial, J.M. acknowledged DCYF put her on notice of the potential

issues with Gallagher. Report of Proceedings (RP) at 149 (“They wanted me to

see someone else, and I wanted to see this lady because she’s culturally

competent.”). These “repetitive conversations” are unchallenged and part of

DCYF’s efforts to discuss and, thus, resolve any issues with Gallagher’s treatment,

including her qualifications. 10

Fourth, at trial, DCYF asked an Aleut Community representative whether

“the tribe consider[s] providing [J.M.] with different providers for counseling an

active effort?” The representative answered, “[y]es, the tribe does consider that

an active effort.” Further, the representative answered affirmatively when asked if

there were both “efforts made to connect [J.M.] with resources in services” and

“ongoing efforts throughout the life of this case to check in with [J.M.] on her mental

health state and what she might need in order to better process the case and work

through it?” Again, WICWA and ICWA require that we defer to the tribe’s position.

G.J.A., 197 Wn.2d at 887 (requiring “deference to the tribe at each step of the

10 The superior court also held service review hearings seven times between April

2021 and August 2023.

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dependency, including . . . services.”).

The court also heard testimony from a qualified expert witness with 15 years

of experience with Native termination proceedings that DCYF “located a high level

of services, and actually offered, and offered assistance with that, which also

provides system and navigational support to be able to access those services.”

G.J.A. is instructive by way of contrast. There, “[n]othing in the record

suggest[ed] [the] professionals had experience working with Native families or that

[DCYF] made any efforts to procure such services.” G.J.A., 197 Wn.2d at 894.

Further, DCYF’s failure there was to such a degree that “one would think that the

children were not Native and that ICWA and WICWA did not apply.” Id. at 900.

Here, DCYF did more than merely “provide referrals.” Id. at 894. Again, DCYF

clearly understood the limits of Gallagher’s qualifications, actively engaged with

J.M.’s concerns, and collaborated with tribal authorities to diligently search for

qualified and culturally competent providers in a timely manner. In re Welfare of

A.L.C., 8 Wn. App. 2d 864, 875, 439 P.3d 694 (2019) (“WICWA requires timely

and diligent efforts to provide or procure services.”).

In short, we hold the above evidence was “sufficient to persuade a fair-

minded rational person” that DCYF engaged in active efforts to investigate, where

needed, Gallagher’s qualifications and otherwise substantively help J.M. meet Dr.

Milner’s recommendations. A.B., 181 Wn. App. at 59.

4. Parenting Component

Finally, the court’s order required J.M. complete a “neuro-psychological

evaluation with a parenting component.” The court’s order did not further define

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“parenting component.” J.M. argues Dr. Milner failed to conduct a parenting

component as part of her neuro-psychological evaluation. She argues, in turn, that

this failure amounts to failure to monitor her progress, contrary to WICWA’s active

efforts requirement.

We hold that there is substantial evidence, as the court found, that J.M., in

fact, completed a “neuropsychological evaluation with parenting component with

Dr. Milner in 2021.”

At trial, Dr. Milner explained that she conducted an “Adult-Adolescent

Parenting Inventory,” which assessed J.M. for various factors like her beliefs on

“corporal punishment” as well as her “levels of empathy” and “valuing

independence or problem solving in children.” In short, Dr. Milner testified that she

conducted an evaluation with a parenting component. We do not “make credibility

determinations or weigh evidence.” A.B., 181 Wn. App. at 60.

In response, J.M. cites to G.J.A. for the proposition that DCYF must

“consider alternative ways to address [her] needs if the optimum services are not

available.” (Citing G.J.A., 197 Wn.2d at 889-90.) She then argues that the “usual

process” of observing a parent-child interaction did not happen, which makes the

process incomplete.

In G.J.A., our Supreme Court held that “[n]othing in the record indicate[d] if

or when the parenting assessment ever occurred or whether it was performed by

a qualified professional.” 197 Wn.2d at 881. Here, Dr. Milner testified she

conducted the inventory (and thus a parenting assessment), but not through a

direct parent-child observation because of the COVID-19 pandemic. DCYF

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confirmed “children weren’t able to come to the office” because of the pandemic.

While an observation may have been the usual or even the optimum process, there

is still substantial evidence that Dr. Milner conducted an alternative type of

parenting assessment. Again, we do not “make credibility determinations or weigh

evidence.” A.B., 181 Wn. App. at 60. And the court’s ordered treatment did not

specifically require actual parent-child observation, nor does J.M. cite to any

authority holding that such an evaluation requires such an observation.

In short, we hold the above evidence was “sufficient to persuade a fair-

minded rational person” that DCYF conducted the required evaluation with

parenting component, or an alternative, thus, satisfying the active efforts

requirement. Id. at 59.

In summary, each of J.M.’s four overarching arguments failed to establish

either that the court’s findings were unsupported by substantial evidence or that

DCYF otherwise did not satisfy WICWA or ICWA’s active efforts requirement.

A.L.K., 196 Wn.2d at 697.

C. Non-WICWA or ICWA Based Assignments of Error

1. Standard of Review for any Termination

Again, in general, all termination proceedings require the State to establish

two sets of facts. K.M.M., 186 Wn.2d at 478. First, DCYF must establish the six

elements of RCW 13.34.180(1). Id.; In re Dependency of K.D.S., 176 Wn.2d 644,

652, 294 P.3d 695 (2013). Second, DCYF must show that termination is in the

best interest of the child. K.M.M., 186 Wn.2d at 478.

We assess whether DCYF has proven all six elements of RCW

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13.34.180(1) by “clear, cogent, and convincing evidence.” In re Welfare of Hall,

99 Wn.2d 842, 849, 664 P.2d 1245 (1983). This heightened standard requires

evidence showing the superior court’s findings are “‘highly probable.’” In re

Dependency of A.M.F., 23 Wn. App. 2d 135, 141, 514 P.3d 755 (2022) (internal

quotation marks omitted) (quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513

P.2d 831 (1973)). In other words, this evidentiary standard requires “more than a

preponderance of the evidence, but less than what is needed to establish proof

beyond a reasonable doubt.” In re Estate of Barnes, 185 Wn.2d 1, 10 n.5, 367

P.3d 580 (2016).

Further, “terminations are fact specific and must be decided on a case by

case basis.” In re Welfare of N.M., 184 Wn. App. 665, 672, 346 P.3d 762 (2014).

This is because “parent-child relationship necessarily involves both the parent and

the child; thus, it is necessary to consider whether a parent is capable of parenting

the particular child given the child’s specific, individual needs.” K.M.M., 186 Wn.2d

at 490 (emphasis omitted).

2. Discussion

J.M. contests only the first step and specifically only elements (e) and (f) of

RCW 13.34.180(1). 11 We address each in turn.

11 The four unchallenged elements of RCW 13.34.180(1) are:

(a) The child is dependent.

(b) The court has entered a dispositional order.

(c) The child has or will (at the time of hearing) have been removed from the

parent’s custody for at least six months.

(d) The “services ordered . . . have been expressly and understandably offered or

provided and all necessary services, reasonably available, capable of

correcting the parental deficiencies within the foreseeable future have been

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a. RCW 13.34.180(1)(e)

RCW 13.34.180(1)(e) requires DCYF establish there “is little likelihood that

conditions will be remedied so that the child can be returned to the parent in the

near future.” Further, a “parent’s failure to substantially improve parental

deficiencies within 12 months” after a dispositional order shall give rise to a

rebuttable presumption this factor is satisfied as long as 13.34.180(1)(d) is

satisfied. Id.

Here, the court found that “[g]iven the more than 38 months of services

offered or provided during this dependency there is little likelihood that the

conditions will be remedied so that the child could be returned to the mother in the

near future. The near future for this child has passed.”

J.M. argues that this finding is flawed in two ways. J.M. first argues the

finding was not supported by substantial evidence. J.M. refers to testimony offered

by Graff, the supervising DCYF social worker, in which she stated “‘I would almost

say that the foreseeable future has passed.’” J.M argues that this testimony, which

merely stated the foreseeable future had “almost” passed, is insufficient to support

the court’s finding that DCYF satisfied RCW 13.34.180(1)(e). We disagree as

ample evidence supports the court’s finding beyond this possible misstatement.

Again, appellate review of findings of fact is limited to determining if they

are supported by substantial evidence in the record. State v. Pratt, 11 Wn. App.

2d 450, 457, 454 P.3d 875 (2019). “Substantial evidence is evidence sufficient to

expressly and understandably offered or provided.”

RCW 13.34.180(1)(a)-(d).

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persuade a fair-minded, rational person of the finding’s truth.” Id. More specifically

to the issue at hand, “[w]hat constitutes ‘near future’” is context specific and

“depends on the age of the child and the circumstances of the child’s placement.”

In re Welfare of C.B., 134 Wn. App. 942, 954, 143 P.3d 846 (2006).

It is undisputed that S.A.M-S. has lived out-of-home and outside of J.M.’s

custody since the April 2020 domestic violence incident. S.A.M-S., who was five

years old at the time of trial, had been in out-of-home care for three years. In other

words, S.A.M-S. had been in out-of-home care for the majority of her life.

Further, S.A.M-S.’s guardian ad litem (GAL) testified that S.A.M-S. was

“desperate for permanency” and that it was “in [S.A.M-S.’s] best interest to be

adopted at the earliest time available.” (Emphasis added). The GAL also testified

that S.A.M-S. indicated “she wants the court to know that she wants no more visits,

and that she wants to be adopted, and she wants to live in her current home

forever.”

Moreover, S.A.M-S.’s therapist testified that “[c]hildren do very well with

predictability and being able to know what’s going to happen next, especially when

they have experienced trauma in their life” and, specifically “for [S.A.M-S.], it is

helpful for her to know what’s coming up, to help with any possible feelings of

anxiety or worry.” The therapist testified that S.A.M-S. had greater difficulties

regulating or verbalizing emotions than a typical child of her age. For example,

S.A.M-S. engaged in explosive, sometimes violent, outbursts or tantrums at

daycare. RP at 86 (S.A.M-S. would “destroy the classroom, which would be like

throwing chairs down and that sort of thing”). However, in S.A.M-S.’s current foster

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home arrangement, “she has really done a great job of being able to identify what

she is needing in the moment to help her calm down, and that, you know, and be

able to label the feeling that she’s having, which is huge progress from where we’ve

started.”

Additionally, the court heard testimony that S.A.M-S.’s current “foster

parents have done incredible work about learning about the Aleut Community.”

S.A.M-S.’s current caretakers are connected to the Tlingit Haida tribe which is a

sister tribe of the Aleut Community. As such, S.A.M-S. is still “connected to her

culture,” including “making cultural food . . . drumming and singing with them” with

“plans to do bead work in the future.” Both the Aleut Community representative

and a qualified expert witnesses also supported S.A.M-S. current placement. In

short, as in C.B., there is substantial evidence that “the children lived with [their

caretaker] and were bonded in that placement.” 134 Wn. App. at 954.

As to the timing of remediating J.M.’s parental deficiencies, Dr. Milner

testified it would take “four to ten years” to treat J.M.’s behavioral health concerns.

Dr. Milner explained that “long-term” treatment was required, not only because of

J.M.’s numerous mental health challenges, but because J.M. has “a history of this

rigid belief system,” in which she had “no acknowledgment about any of her

behaviors” and instead “externalized” issues “to others, not her own behavior.”

Thus, there is substantial evidence for both S.A.M-S.’s imminent need and

desire for permanency with the culturally competent family she is currently bonded

and progressing with, and of the protracted period of time it will take for J.M. to

cure her parental deficiencies. We hold that this evidence is sufficient to “persuade

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a fair-minded, rational person” of the truth of the finding that the time for J.M. to

cure her deficiencies was quite short. Pratt, 11 Wn. App. 2d at 457. Further, we

hold the court’s finding on RCW 13.34.180(1)(e) was supported by clear, cogent,

and convincing evidence as the above evidence shows it was “‘highly probable’”

there was little likelihood conditions would be remedied in the near future. A.M.F.,

23 Wn. App. 2d at 141 (internal quotation marks omitted) (quoting Sego, 82 Wn.2d

at 739).

While there may be a minor, semantic discrepancy between Graff’s

testimony and the court’s finding, that difference disregards the substantial

evidence, and the court’s substantive finding on RCW 13.34.180(1)(e), that the

near future for permanency was short indeed, particularly when viewed from

perspective of “age of the child and the circumstances of the child’s placement.”

C.B., 134 Wn. App. at 954.

J.M.’s second argument is that the court finding the “near future has passed”

was “inconsistent” with the legislative intent behind RCW 13.34.180(1)(e).

Specifically, she avers that the statute’s usage of “will” and “likelihood” indicates it

is forward looking while the court’s finding (i.e. “has passed”) is backwards looking.

While the court’s holding may have been inartful, and in other circumstances quite

concerning, we ultimately disagree.

First, J.M. offers five sentences of argument in support of her claim that it

“is simply inconsistent with the legislature’s purpose,” to view the near future as

the past, with no citation to authorities other than RCW 13.34.180(1)(e) itself.

DeHeer, 60 Wn.2d at 126.

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No. 85959-5-I/26

Second, J.M.’s focus on the court’s usage of the phrase “has passed” is

overly literal. Viewing the entirety of the evidence before the court (reviewed

above), and court’s termination order as a whole, the court was clearly concerned

with the time it would still take for J.M. to complete her treatment—which is of

course in the future—and the effect on S.A.M-S.’s desire for permanency—which

is by definition forward looking. Again, had the court focused only on what had

occurred, and not on what would occur, then error may have been present. But

those are not the facts before us. On the record before us, it is “‘highly probable’”

that J.M.’s deficiencies were not going to resolve in the near future. A.M.F., 23

Wn. App. 2d at 141 (quoting Sego, 82 Wn.2d at 739).

b. RCW 13.34.180(1)(f)

RCW 13.34.180(1)(f) states “the court must consider the efforts taken by

[DCYF] to support a guardianship and whether a guardianship is available as a

permanent option for the child.” (Emphasis added.) J.M. argues the court failed

both to consider “what efforts [DCYF] made to support a guardianship” and to

conduct the analysis “on the record.” We disagree.

Taking the latter argument first, we hold the court was not required to

conduct an on-record analysis. RCW 13.34.180(1)(f) states the court need only

“consider” DCYF’s efforts on guardianship and its viability. RCW 13.34.180(1)(f)

says nothing about required findings or any on-record analysis. J.M. also fails to

cite any authorities that require an on-record analysis for guardianships under

RCW 13.34.180(1)(f). DeHeer, 60 Wn.2d at 126.

Regardless, the court here both considered and explained its reasons for

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rejecting the viability of guardianship on the record. The court’s written order found

that DCYF “has shown that guardianship here is not a viable alternative to

termination.” The court further explained that S.A.M-S.’s current caregivers were

not interested in guardianship because it would “not be appropriately protective for

them or for this child.” At the end of trial, the court expressly stated that it

“considered the viability of guardianship in this case” and that it was unavailable in

light of S.A.M-S.’s need for “stability” and J.M.’s past “threatening” behaviors

towards previous caretakers who withdrew their plans to adopt S.A.M-S.

The court appears to reference the trial testimony of S.A.M-S.’s former

caregiver which discussed threats made by J.M. The former caregiver explained

that J.M. accused her and her husband of child abuse multiple times. Further, J.M.

livestreamed threats on Facebook that referenced the caregiver and her husband

“by name saying what city we may live in, and that we’re – so my husband’s a

molester, and I’m a child beater, and had threatened to send bikers after us.”

Ultimately, the caregiver requested DCYF change S.A.M-S.’s placement and cited

J.M.’s threats.

After the former caregiver’s testimony, the State asked J.M. if she “ma[d]e

threats against [the former caregiver] and her family?” J.M. twice repeated she

had the right to “stand [her] ground.” Further, J.M. later admitted she made

numerous Facebook posts about the former caregiver during trial.

In re Dependency of G.C.B. is instructive. 28 Wn. App. 2d 157, 535 P.3d

451 (2023). There, “the current caregiver to both children testified that her family

‘discussed the potential for guardianship or adoption with [DCYF]’” and “said that

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her family preferred adoption and that their home had already ‘been approved for

adoption.’” Id. at 175. There was further testimony that “‘the children were thriving

in their current placement, and a guardianship would keep them ‘in limbo’ with

negative ‘consequences.’” Id. at 174 Thus, this court upheld the court’s finding

that guardianship was inviable. Id. at 175.

Similarly, here, the court heard testimony that DCYF discussed

guardianship with S.A.M-S.’s current foster home on an “ongoing basis.” As part

of these discussions, S.A.M-S.’s current foster home expressed concerns that

guardianship would harm S.A.M-S.’s need for permanency, finality, and security.

We hold that this evidence is sufficient for a reasonable person to conclude

that it was “‘highly probable’” that a guardianship was considered and found to

inappropriate. In re Dependency of A.N.C., 24 Wn. App. 2d 408, 414-15, 520 P.3d

500 (2022) (internal quotation marks omitted) (quoting In re Dependency of K.R.,

128 Wn.2d 129, 141, 904 P.2d 1132 (1995)). And, the court’s findings on the

viability of guardianship were supported by clear, cogent, and convincing evidence.

Id.

III. CONCLUSION

We affirm the court’s order terminating J.M.’s parental rights to S.A.M-S.

WE CONCUR:

28