# In Re The Dependency Of G.m.w.

> Court of Appeals of Washington · October 31, 2022

URL: https://www.frixlaw.com/law-library/cases/11264789

## Case

- **Court:** Court of Appeals of Washington
- **Decided:** October 31, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11264789

## How later opinions describe it (automated extraction)

- recognizing that in dependency proceedings, “[e]ach parent is entitled to mount a separate defense against that allegation; one cannot necessarily speak for the other”
- recognizing that in dependency proceedings, “[e]ach parent is entitled to mount a separate defense against that allegation; one cannot necessarily speak for the other”

## Opinion text

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

In the Matter of the Dependency of: No. 82918-1-I

G.M.W.,
PUBLISHED OPINION
A Minor Child.

ANDRUS, C.J. — The father of G.M.W. appeals an order denying his CR 60

motion to vacate a default order of dependency. He contends the Department of

Children, Youth and Family (the Department) failed to serve him with the summons

and dependency petition as required by RCW 13.34.070, RCW 4.28.080, and CR

4(c). He separately argues the trial court violated the Indian Child Welfare Act

(ICWA)1 and the Washington Indian Child Welfare Act (WICWA)2 by failing to

appoint an attorney to represent him before he appeared to request one. Finally,

he contends the trial court failed to find that the Department engaged in active

efforts to prevent the breakup of G.M.W.’s family.

We conclude the father was properly served with the summons and petition

through substitute service under RCW 4.28.080(16) and that neither ICWA nor

1
25 U.S.C. § 1901 et seq.
2
RCW ch. 13.38.
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No. 82918-1-I/2

WICWA require the appointment of counsel until the parent appears, requests the

appointment of counsel, and demonstrates indigency. Finally, we conclude the

trial court made active effort findings at the dependency, disposition, and first

review hearings and that there is substantial evidence to support the court’s

findings. We therefore affirm.

FACTS

On January 7, 2021, C.A., an enrolled member of the Upper Skagit Tribe

(Tribe) gave birth to G.M.W. at Skagit Valley Hospital. The mother tested positive

for opiates at the hospital and reported exposing G.M.W. to heroin and

methamphetamine in utero. The mother reported using heroin up until three days

prior to delivery. G.M.W. was born preterm at 35 weeks gestation after exposure

to these substances throughout the mother’s pregnancy during which she received

no prenatal care.

The hospital notified the Department of G.M.W.’s birth on January 8, 2021.

They reported that G.M.W. was showing signs of withdrawal, had “jerking

movements” in his arms, and was having a difficult time latching onto a bottle

nipple. Department social worker Faber went to the hospital that day for an initial

face-to-face visit, to gather information about G.M.W. and to engage the child’s

parents in services. Neither the mother nor father were present. The hospital

informed Faber that the mother had visited the baby and assisted with a morning

feeding but then left and did not return. Faber met with the child’s pediatrician who

reported he may need to administer morphine to G.M.W. to combat withdrawal

symptoms.

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The Tribe’s social worker, Felice Keegahn, received an Intake Report

regarding G.M.W. the same day. This report indicated that the mother had

expressed an interest in parenting the child but had an appointment the following

day at a drug treatment facility. Faber called Keegahn after she visited the hospital

to provide a status report on the infant’s medical condition and treatment. Keegahn

informed Faber that both parents were enrolled members of the Tribe and that

G.M.W. was eligible for enrollment as well.

On January 9, 2021, the hospital diagnosed G.M.W. with neonatal

abstinence syndrome and oxygen desaturation. The baby’s umbilical cord tested

positive for both amphetamines and heroin.

The Department was aware that the mother had a lengthy history of heroin

use that affected her ability to parent. The Department and the Tribe had worked

with her for years to assist with her parenting of three other children, none of whom

resided with the mother. Dependency proceedings were then pending for two of

C.A.’s three children and the Department and Tribe’s child protection team had

attempted to engage the mother in drug treatment and mental health treatment

since at least 2016. 3 According to the Department, C.A. had demonstrated an

inability to adequately assess the medical and dental needs of her other children

and had been unable to maintain stable housing or provide food and clothing for

them. By December 2020, just months before G.M.W.’s birth, the Department

informed the court that the mother was not engaged in services, despite its efforts

3
G.W., the father here, is not the biological father of C.A.’s other children.
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No. 82918-1-I/4

and those of the Tribe. She had not visited two of her three older children since

the Department took them into care in 2016.

The Department had little information about G.M.W.’s father, G.W. It

reported that he had two other children who resided with their mother, but it does

not appear that these children were in dependency proceedings or that the father

had ever been involved in receiving services through the Department. It

determined that the father had past convictions for theft and pending criminal

charges in superior court for identity theft, theft, and driving under the influence.

The Tribe reported that the father was then facing additional charges in tribal court

for assaulting a tribal officer, reckless endangerment, and possession of drugs and

drug paraphernalia. The Department confirmed there were open arrest warrants

for the father from both the superior and tribal courts.

Department social worker Nicole Patterson began working on G.M.W.’s

case shortly after his birth. On January 11, 2021, she learned from the hospital

social worker that the mother had come to the hospital to provide overnight

feedings to G.M.W. and had an appointment that morning at Didgwàlic, a treatment

facility. Patterson also learned that the father had been present at the hospital but

was there much less frequently than the mother.

Also on January 11, 2021, Patterson attempted to reach both parents via

telephone, at phone numbers listed in the department intake report, without

success. She left a voice mail message for the father. She also searched

Facebook and found five accounts in the father’s name. She sent messages to

each account with her contact information requesting that he contact her.

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No. 82918-1-I/5

Patterson also attempted to reach the mother via her Facebook account. She

submitted a referral to the Department’s parent locator resource in an attempt to

find a way to contact the father. Finally, she contacted the hospital social worker

asking if the hospital could obtain updated contact information for the parents so

she could invite them to a Family Team Decision Meeting (FTDM). The hospital

social worker agreed to do so and also asked to have a nurse attend the FTDM.

Patterson called the hospital later that same day to check on G.M.W.’s

status. The hospital reported that it had provided a room for the parents to stay in

to facilitate bonding with the child, that neither parent was present, and that the

father had not visited the child that day. G.M.W., then on morphine, was being

weaned from the drug. Patterson asked the hospital staff to pass her contact

information on to the parents and sent the nurse an invitation to the FTDM.

The social worker then noticed that the mother had read her Facebook

message so she sent a second message notifying her of the Zoom FTDM that

afternoon for 4 p.m. The hospital social worker contacted Patterson to provide an

updated phone number for the mother but also reported that neither parent had

been to the hospital that day. Patterson immediately texted the mother, using this

updated phone number. The mother responded, indicating that she was at a

methadone clinic in Anacortes, but she promised to call Patterson back when

done. She did not do so. Patterson also sent invitations to the FTDM to both

parents via text and Facebook. Throughout the day, Patterson collaborated with

Keegahn via email and telephone in an attempt to locate the parents and

determine how to proceed.

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No. 82918-1-I/6

The Department conducted the FTDM via Zoom on the afternoon of January

11 as scheduled. The purpose of the meeting was to discuss safety concerns

regarding the child’s birth and his medical condition. Neither parent logged in for

the meeting. Patterson texted the mother to ask if she needed help joining the

meeting. The mother did not respond. At 6:45 p.m., the hospital notified Patterson

that the mother had shown up at the hospital to visit G.M.W. but did not stay to

feed the infant when asked by the nurse to do so. The mother also reportedly

returned that night and assisted with a 2:30 a.m. feeding.

The following day, Keegahn notified Patterson that the Tribe’s law

enforcement agency reported that the father had active warrants for his arrest, was

avoiding law enforcement, and was likely staying off the reservation at the home

of C.A.’s mother. Patterson also learned from a hospital social worker that the

father had indicated to her that he does not like to come into the nursery, does not

want to care for G.M.W. because he is so tiny, and will spend time in the boarding

room while C.A spends time with the infant. The hospital also informed Patterson

that the parents appeared to be using the room it had set aside for them but not

for the purpose of bonding with the child.

On January 13, 2021, the mother texted Patterson with a new phone

number, indicating she “[had run] out of minutes” and would call when she

completed her methadone appointment that morning. The following day, Patterson

obtained authorization to purchase a phone card for the mother. She attempted

to contact the mother throughout the day in order to load her phone with the

minutes, but she could not reach her.

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No. 82918-1-I/7

Patterson also continued to message the father via Facebook to no avail.

When she contacted the hospital on January 14, she discovered that both parents

had slept in the hospital room and that the mother had participated in a couple of

the daytime feedings. Neither parent was present during the overnight feedings.

On January 15, 2021, the hospital transferred G.M.W. to Providence

Neonatal Intensive Care Unit for a higher level of care for breathing and blood

oxygenation problems. The hospital notified the mother of this transfer.

That same day, the Department filed a dependency petition and sought an

order allowing it to take G.M.W. into custody. The trial court issued the pick-up

order that afternoon. The Department scheduled a shelter care hearing for

January 19, a case conference for February 4, and a fact-finding hearing for

February 16, 2021.

The court conducted the shelter care hearing as scheduled on January 15,

2021. Department social worker Patterson and Tribe social worker Keegahn

appeared, as did the court-appointed guardian ad litem, Monica Cole. The

Department informed the court of the efforts Patterson had undertaken to notify

the parents of the shelter care hearing, the hospital plans to discharge the infant

later that week, the fragility of the infant’s medical condition, and the lack of

parental engagement. The Tribe did not oppose shelter care and Keegahn

assured the court that she was working closely with Patterson to locate the

parents. With regard to placement, Keegahn stated that the Tribe was attempting

to locate the mother to determine if it was possible to put a safe parenting plan in

place, and would consider other relatives as an alternative placement option. She

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No. 82918-1-I/8

had also lined up a licensed foster home with a tribal member if the first two options

could not work.

The court found that the Department provided adequate notice of the shelter

care hearing to both parents as required under RCW 13.34.062. It further found

that the Department had made good faith efforts to determine if G.M.W. was an

“Indian child” under IWCA and WICWA, and that G.M.W. was an Indian child as

defined in RCW 13.38.040 and 25 U.S.C. § 1903(4). Keegahn notified the court

that the Tribe intended to intervene.

The court further found that the Department had made reasonable efforts

to prevent or eliminate the need for removal of the child from the child’s home,

finding that “the Department has held case planning meetings since the birth of

this child and coordinated efforts with the hospital and [the Tribe] in attempting to

engage the parents in services and making them aware of the resources available

to them.”

The court additionally found that G.M.W. had no parent available to provide

care for the child and that the release of G.M.W. to the parents would present a

serious threat of substantial harm to the child. It stated orally that it would not

make an imminent harm finding at that time but found that the parents had not

made themselves available, the child was born premature and remained in the

hospital, and the Department and the Tribe were working together to try to locate

the parents and get them into services.

The court indicated to the Department and the Tribe that it would order

placement in licensed foster care if the parties could not agree on an appropriate

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No. 82918-1-I/9

relative placement but, “[w]hen the parents surface and arrive we can have another

shelter care” to address placement, if necessary.

Later that same day, Patterson drove to the home of the maternal

grandmother, located on Hulbush Lane in Burlington, Washington, in an attempt

to find the parents. The mother was there and Patterson physically gave her a

copy of the dependency petition, a summons, and the motion and order to take

G.M.W. into Department custody. Patterson told the mother about the placement

options that the Tribe was exploring.

While talking with Patterson, the mother informed the social worker that the

father would be there that evening and she offered to give him his copy of the

dependency pleadings when he arrived. Because Patterson understood from the

Tribe that this address was the most current residence address for both parents,

she handed the father’s summons to the mother.

The summons included the dates and times for the scheduled case

conference, the date of the fact-finding hearings, and information regarding the

father’s legal rights, including his right to have a fact-finding hearing and his right

to counsel. The summons explained that if the parents could not afford counsel,

they had the right to ask the court to appoint a lawyer at public expense. It also

included contact information for the Office of Assigned Counsel.

The same day, Patterson mailed two copies of the same pleadings to the

father, one via first class mail, and one via certified mail, return receipt requested,

to four separate addresses: the Mount Vernon address listed in the petition, the

Hulbush Lane address in Burlington, a Sedro Woolley address obtained from the

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Department of Licensing, and “general delivery” in the Burlington post office. On

February 2, 2021, the Department received a return receipt from the post office

with a signature that appeared to consist of the initials “RS,” indicating that an

“agent” had accepted the certified mail on the father’s behalf at the Mount Vernon

mailing address.

Providence discharged G.M.W. on January 25, 2021, after the infant was

successfully weaned from morphine and completed breathing treatments. The

Department and Tribe released him to licensed foster parents who are members

of the Tribe.

On February 4, 2021, the Department conducted the previously scheduled

case conference. Both parents called in and participated in that conference. The

parents learned that the baby was still experiencing withdrawal symptoms, with

tremors, shaking, sweats, and stiffness in his limbs and neck, and that he may

need physical therapy. The mother reported that she had reengaged with her

substance abuse treatment provider at Didgwàlic and intended to undergo a mental

health assessment there. The father stated that he too was interested in services

recommended by the Department. The services included a substance abuse

evaluation and treatment, a mental health assessment, and age-appropriate

parenting instruction. While the father initially resisted the recommendation that

he undergo a mental health assessment, he ultimately did not argue with that

recommendation once the Department explained its purpose.

During this conference, the father told Patterson that the best way to contact

him was through the mother, who agreed that her phone number could be used

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No. 82918-1-I/11

for that purpose. Patterson explained to the parents that they had a right to an

attorney and how to access one. At the conclusion of the case conference, the

Department put in a service referral to obtain phone service for the father.

On February 16, 2021, the court held a dependency fact-finding hearing.

The parents did not appear for this hearing. Present at the hearing were

Department social worker Patterson, tribal representative Keegahn, and the

guardian ad litem Cole. Noting the parents’ absence, the Department requested

an order of default. Keegahn informed the court that the tribe did not oppose the

motion for default and said, “I’ll just add that I called and texted the phone number

for the parents today, and they haven’t responded.”

Patterson testified she had made multiple attempts to contact the father

through different Facebook accounts and had called and texted him, using contact

information provided by the Department’s parent locator program and the hospital.

She indicated she tried to meet with him in person and succeeded in talking with

him at the February 4 case conference. She sent service letters to every possible

address she had found for the parents. Patterson informed the court that she had

explained to the father that he had the right to an attorney and provided him

information on how to access counsel.

Finally, Patterson verified that the allegations in the dependency petition

were true and accurate. She identified the parents’ deficiencies as active

substance abuse, mental health, and a need for age-appropriate parenting

instruction. She testified that G.M.W. needed specialized care because of the

effects of being exposed to drugs while in utero and that it was not safe to return

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No. 82918-1-I/12

him to the parents’ care while they both were actively using substances. With

regard to the father, Patterson had documentation showing that he had visited the

baby only twice while in the hospital and no evidence he had ever provided care

to the infant. The Department contracted with a visitation supervisor but this

supervisor was also unable to reach either parent to set up a time to visit with

G.M.W. To Patterson’s knowledge, neither parent had seen G.M.W. since he was

discharged from the hospital on January 25.

The court found a sufficient factual basis to find G.M.W. dependent. The

Department indicated it would offer the testimony of its qualified ICWA expert

witness, Keegahn, on the date of the disposition hearing. Keegahn agreed to this

procedure. The court entered an order of default against both parents, and a

default order of dependency. The court found that

[t]he facts contained within the dependency petition are established
by a preponderance of the evidence. Specifically, the parents both
suffer from serious addiction to controlled substances and this
prevents them from safely parenting this child, who is a vulnerable
infant and has special medical needs related to exposure to
controlled substances while in utero. Additionally, there is a sufficient
factual and legal basis to support the service plan enclosed in this
order.

Based on these findings, it found that G.M.W. “has no parent, guardian or

custodian capable of adequately caring for the child, such that the child is in

circumstances which constitute a danger of substantial damage to the child’s

psychological or physical development.” The court concluded that dependency

had thus been established under RCW 13.34.030(c).

Because ICWA and WICWA applied, the court found that the Department

had made active efforts to prevent the breakup of the Indian family:

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No. 82918-1-I/13

[The Department] made active efforts by actively working with the
parent, parents, or Indian Custodian to engage them 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. . . . This finding is based on
the following: The Department has held case planning meetings and
attempted through all possible forms of communication to establish
and maintain contact with the parents including arranging visitation
and offering resources and services. Mother has also been offered
services through the dependencies established for her older
children.

The court found that the Department had offered specific services, that it had

explained the need for the services during the February 4 case conference, and

that it had recommended resources to them. With regard to the child’s placement,

the court reserved making any findings until the March 2, 2021 disposition hearing.

The parents did not appear at the disposition hearing. The Department

sought a court order requiring the parents to obtain substance abuse treatment, a

mental health assessment, and age-appropriate parent instruction, as laid out in

Patterson’s February 17 court report. The GAL and Tribe agreed with these

requirements. The court then entered a disposition order consistent with this

presentation. The court reserved any finding, as required by ICWA and WICWA,

that continued custody of the Indian child by his mother or father would be likely to

result in serious emotional or physical damage to the child. 4 Keegahn indicated

her intention to submit a declaration as the qualified ICWA expert witness on this

issue once she completed her review of the discovery.

4
ICWA and WICWA provide that no foster care placement may be ordered without
evidence from a qualified expert witness to prove by clear and convincing evidence that
the continued custody of an Indian child by their parent is likely to result in serious
emotional or physical damage to the child. 25 U.S.C. § 1912(e); RCW 13.38.130(2).
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No. 82918-1-I/14

The court did find, however, that “[the Department] made active efforts by

actively working with the parent, parents, or Indian Custodian to engage them 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.” The court also found that it was contrary to the child’s welfare

to return him home because there was no parent available to care for G.M.W. and

“a manifest danger exists that the child will suffer serious abuse or neglect if the

child is not removed from the home . . . .”

Ten days later, Keegahn submitted a declaration as the qualified expert

witness. She testified that G.M.W. was currently placed in a licensed home in

which one of the caregivers is enrolled in the Tribe. She stated that the placement

complies with the placement preferences under ICWA and WICWA because, in

the absence of an ability to place the child with a parent or an appropriate relative,

a licensed tribal home is the least restrictive placement possible. Keegahn opined

that continued custody by either of the parents is likely to result in serious

emotional or physical damage to G.M.W. because the parental deficiencies that

prompted the dependency petition have not yet been mitigated. As to the father,

Keegahn noted that he had rarely visited the child while G.M.W. was hospitalized

and did not participate in the infant’s care or feeding. Keegahn also stated that the

father lacked the ability to provide safe and stable housing to the infant as he

reported being homeless. Keegahn further indicated that the father had multiple

active warrants for his arrest.

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No. 82918-1-I/15

Keegahn opined that based on her “familiarity with this case, conversation

with the assigned social worker, and other information, it is my opinion that active

efforts have been made to provide remedial services and rehabilitative programs

designed to prevent the breakup of the Indian family and these efforts have proved

unsuccessful.” Keegahn identified the following efforts made by the Department:

1) immediate contact by the CPS social worker and [Patterson] in
order to consult about family history and how to best work with
and support [the mother] and [the father]. 2) frequent contact with
[the hospital] . . . in order to attempt to contact the parents,
provide them with information, to provide updates to the parents,
to arrange parent visits and to address any barriers to parental
engagement. 3) the usage of the [Department] parent locator for
[the father] and of Facebook for both parents in order to attempt
to contact them as well as the purchase of a cell phone and
minutes for [the mother]. 4) [the Department] collaborated with
Upper Skagit ICW to conduct an initial relative search in order to
attempt to identify relative resources for potential placement and
overall family support and 5) contact was made with Didgwàlic in
order to attempt to collaborate with [the mother’s] service
providers with the agency.

In an April 2021 court report, Patterson informed the court that she had been

in contact with the father when she located him at the maternal grandmother’s

home “during a collaborative effort with the [Tribe] to locate and engage the

parents.” At this meeting, she and Keegahn encouraged the father to contact the

Office of Assigned Counsel to screen for an attorney. Patterson provided the

father with a phone with minutes that the Department had “fully charged, activated,

and preprogrammed [with] contact information, including [the] assigned DCYF

[social] worker, Upper Skagit Indian Tribe worker, Office of Assigned Council [sic],

visit supervisor at the time, GAL, and chemical dependency providers.” She also

sent texts with pictures of the baby for both parents to enjoy.

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The court report also notes that Patterson notified both parents through

“text, call, monthly service letter, [and] Facebook of visitation changes during this

review period in addition to reminding them to contact their visit supervisor.”

Nevertheless, both parents struggled to make in-person visits and the visit

supervisor ended the contract after the parents missed three visits. The visit

supervisor subsequently set up a video visit, which the father attended on April 21,

2021.

With regard to the Department’s efforts to reunify the parents with G.M.W.,

the Department informed the court that “[a]ttempts have been made to engage the

parents in services through phone calls, texts, social media, mail, visits to known

locations, monthly service letters, and Parent Locator.” The Department continued

to staff the case monthly with the Tribe’s child protection team in an attempt to

locate the parents and to engage them in services.

At a scheduled dependency review hearing on May 18, 2021, the father,

who was at that point in custody, appeared without counsel. At the Department’s

request, the court continued the hearing to allow the father to review the April 2021

court report and to obtain counsel. Appointed counsel appeared for the father on

May 21, 2021. Both the father and his attorney attended a short hearing on June

1, 2021, and again requested a continuance of the scheduled initial dependency

review hearing so that counsel could consult with his client.

On June 15, 2021, the court held the initial dependency review hearing.

The father’s attorney appeared, but the father was not present as he had bailed

out of jail. At the conclusion of the hearing, the court found that the Department

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No. 82918-1-I/17

had made active efforts to prevent the breakup of the Indian family, finding that

“[t]he Department staffs this case monthly at the [Tribe’s] Child Protection Team

meetings, while also working closely in collaboration with the [Tribe] and makes

ongoing efforts to engage the parents and offer resources.” It further found that

placement with either parent was contrary to G.M.W.’s welfare and that the infant

should remain in Department custody. It also found that the father had not

participated in any services and had pending criminal charges in both superior and

tribal courts.

On June 22, 2021, the father filed a motion to set aside the default order of

dependency under CR 55 and 60(b)(5) based on insufficient service of process.

The father raised two arguments. First, he contended it was improper under CR 4

for the Department to rely on a party, the mother, to serve the father. Second, he

argued that there was no evidence the Hulbush residence was the father’s “usual

place of abode” as required for substitute service under RCW 4.28.080(16). At the

hearing on this motion, the father made it clear he was not asking that G.M.W. be

returned home and merely sought to vacate the order of default to give the father

“his day in court.” Keegan, the Tribe’s representative, informed the court that the

maternal grandmother’s address on Hulbush is “the only address that tribal

administration has ever had for [the father].”

The trial court found that the Hulbush address was one of the father’s usual

abodes. It based this finding on the fact that the residence was an address known

by the Department and the Tribe, and a home where the father was found in April

2021 when he talked to the Department social worker. The court further held that

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No. 82918-1-I/18

service on the father at that address was the most likely to ensure actual notice to

the father. The court denied the motion to vacate, and signed an order to that

effect on July 13, 2021.

The father appeals the July 13, 2021 order. 5

ANALYSIS

CR 60 Motion to Vacate

The father assigns error to the trial court’s refusal to vacate the default order

of dependency. He contends that delivering the summons and petition to the

Hulbush residence was invalid service of process. Initially, the father agreed that

substitute service is acceptable under RCW 4.28.080(16). But he claimed there

was insufficient evidence to establish that the Hulbush address was his usual place

of abode. He argued, in the alternative, that substitute service was improper here

because CR 4(c) prohibits service on the father by the mother because she is a

party to this action. In supplemental briefing, the father raised a completely

different argument—that the dependency service of process statute, RCW

13.34.070(8) and (9), does not permit substitute service at all.

We review the sufficiency of service of process de novo. Northwick v. Long,

192 Wn. App. 256, 260, 364 P.3d 1067 (2015). Personal service of the summons

is required to establish the court's personal jurisdiction over a respondent. CR

4(d)(2); Sutey v. T26 Corp., 13 Wn. App. 2d 737, 748-49, 466 P.3d 1096 (2020).

5
His notice of appeal listed only the order denying the motion to vacate the default. He
did not seek review of the January 2021 pick-up order or shelter care order, or any of the
factual findings the court made in the February 2021 order of dependency or the March
2021 disposition order.
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No. 82918-1-I/19

1. Is substitute service permitted in dependency cases?

The father argues that substitute service under RCW 4.28.080(16) is never

permissible in a dependency case because RCW 13.34.070(8) does not explicitly

allow it. 6 We disagree.

RCW 13.34.070(8) provides:

If a party to be served with a summons can be found within the state,
the summons shall be served upon the party personally as soon as
possible following the filing of the petition, but in no case later than
fifteen court days before the fact-finding hearing, or such time as set
by the court. If the party is within the state and cannot be personally
served, but the party's address is known or can with reasonable
diligence be ascertained, the summons may be served upon the
party by mailing a copy by certified mail as soon as possible following
the filing of the petition, but in no case later than fifteen court days
before the hearing, or such time as set by the court. . .

(Emphasis added.) RCW 4.28.080(16) describes what constitutes personal

service:

Service made in the modes provided in this section is personal
service. The summons shall be served by delivering a copy thereof,
as follows:

....

(16) In all other cases, to the defendant personally, or by leaving a
copy of the summons at the house of his or her usual abode with
some person of suitable age and discretion then resident therein.

6
We note that the father did not make this argument in the trial court or in his opening
brief. Under RAP 2.5(a), a party’s failure to raise an issue with the trial court generally
constitutes a waiver of that argument on appeal. State v. Robinson, 171 Wn.2d 292, 304,
253 P.3d 84 (2011). We usually also will not consider arguments raised for the first time
in a reply brief. In re Marriage of Bernard, 165 Wn.2d 895, 908, 204 P.3d 907 (2009). In
this appeal, however, the panel specifically asked the parties to submit a supplemental
brief on whether RCW 13.34.070(8) provides different service requirements than RCW
4.28.080(16). See Notation Ruling, April 27, 2022. We will therefore address this
argument here.
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No. 82918-1-I/20

(Emphasis added.) We conclude that RCW 13.34.070(8)’s mandate that a

summons “shall be served . . . personally” means service by one of the two

methods of personal service described in RCW 4.28.080(16): personal, direct

hand-to-hand delivery to the parent or delivery to the parent’s usual abode.

We reach this conclusion based on basic rules of statutory construction.

First, we give statutory words their plain and ordinary meaning unless a different

meaning is specified. Erection Co. v. Dep’t of Labor and Indus., 121 Wn.2d 513,

518, 852 P.2d 288 (1993). Here, the legislature said in RCW 13.34.070(8) that the

summons in a dependency proceeding “shall be served . . . personally.” We must

assign familiar legal terms in a statute their familiar legal meaning. Floeting v.

Group Health Cooperative, 200 Wn. App. 758, 764, 403 P.3d 559 (2017). To

“serve” means to “make legal delivery of (a notice or process).” BLACK’S LAW

DICTIONARY 1643 (11th ed. 2019). The noun “service,” in turn means “the formal

delivery of a writ, summons, or other legal process, pleading, or notice to a litigant

or other party interested in litigation; the legal communication of a judicial process.”

Id. The phrase “shall be served personally” has a clear and familiar legal

meaning—it means using one of the legally permitted and formal methods of

delivering a summons to a litigant.

Second, each provision of a statute must be read together with related

provisions to determine the legislative intent underlying the entire statutory

scheme. In re Estate of Kerr, 134 Wn.2d 328, 343, 949 P.2d 810 (1998). “Reading

the provisions as a unified whole maintains the integrity of the respective statutes.”

Id. Under our dependency statute, the Department has to act, often quickly, to

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No. 82918-1-I/21

protect the health and safety of children. When the Department takes a child into

protective custody, it must notify the parents within 24 hours of its action and

schedule a shelter care hearing within 72 hours. RCW 13.34.062. And unlike

standard civil lawsuits, the dependency fact-finding hearing must occur within 75

days after the Department files the petition “unless exceptional reasons for a

continuance are found.” RCW 13.34.070(1). The court is required to schedule

and hear these cases on an expedited basis. Id.

Interpreting RCW 13.34.070(8)’s service of process requirement to

mandate actual hand-delivery of a summons to a parent in a dependency case

would make service more difficult and time-consuming, not less, and would

undermine the clearly articulated legislative goal of resolving these cases quickly.

Third, a more specific statute supersedes a general statute only if the two

statutes pertain to the same subject matter and conflict to the extent they cannot

be harmonized. Estate of Kerr, 134 Wn.2d at 343. RCW 13.34.070(8), the more

specific statute, does not supersede RCW 4.28.080(16), the more general one,

because the two can be easily harmonized. Under RCW 4.28.080(16), which

explicitly applies to all “cases” other than those listed in RCW 4.28.080(1) through

(15), the Department may serve a parent either by direct, hand-to-hand delivery or

by substitute service. Both are a permissible method of serving a parent

personally.

We conclude personal service through substitute service is permitted under

RCW 13.34.070(8).

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No. 82918-1-I/22

2. Did the Department serve the father at his usual abode?

The father next contends that the Department failed to prove that the

Hulbush residence in Burlington was his “usual abode” for purposes of substitute

service under RCW 4.28.080(16).

When a defendant challenges service of process, the plaintiff has the initial

burden of proof to establish a prima facie case of proper service. Northwick, 192

Wn. App. at 261. A plaintiff establishes a prima facie case by providing a

declaration from the person who served process, regular in form and substance.

Id. The burden then shifts to the challenging party to show by clear and convincing

evidence that service was improper. In re Dependency of A.G., 93 Wn. App. 268,

277, 968 P.2d 424 (1998). Clear and convincing evidence exists when the ultimate

facts are shown to be “highly probable.” In re Parental Rights to K.M.M., 186

Wn.2d 466, 478, 379 P.3d 75 (2016) (internal quotation marks omitted).

The Department provided an affidavit of service from the social worker to

establish its prima facie case of proper substitute service. The father has not

identified anything improper in form or substance with this affidavit of service.

Thus, the burden of proof shifted to the father to prove it “highly probable” that the

Hulbush residence was not “the house of his usual abode.”

The term “usual place of abode” means a center of one's domestic activity

such that service left with a family member is reasonably calculated to come to

one’s attention within the statutory period for a defendant to appear. Northwick,

192 Wn. App. at 262. The term is to be liberally construed to effectuate service

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No. 82918-1-I/23

and uphold jurisdiction. Sheldon v. Fettig, 129 Wn.2d 601, 609, 919 P.2d 1209

(1996).

In this case, the record indicates three separate addresses as possible

residences for the father. The petition alleged his last known home address was

on Stanford Drive in Mount Vernon. In the father’s motion to set aside the default,

counsel informed the court that the Department of Licensing had an address for

the father on Sigwigwilse Lane in Sedro Woolley, dating from 2009. But the Tribe

notified the Department that it believed the father was living with the mother in the

home of the maternal grandmother on Hulbush Lane in Burlington and that this

address was the only one that its administrative office had for the father.

As the trial court noted, it is possible to have more than one house of abode

under RCW 4.28.080(16). Sheldon, 129 Wn.2d at 611. Our Supreme Court has

indeed accepted the notion that “ ‘[i]n a highly mobile society it is unrealistic to

interpret [the substitute service statute] as mandating service at only one location

where, in fact, a defendant maintains several dwelling places.’ ” Id. (quoting Karlin

v. Avis, 326 F. Supp. 1325, 1329 (E.D.N.Y. 1971)).

Here, the trial court found that while it was possible the father had multiple

houses of usual abode, the maternal grandmother’s residence was the one most

likely to ensure the father received actual notice of the dependency proceedings.

This finding is supported by substantial evidence. First, the father submitted no

declaration testimony to identify where he actually lived or to confirm he was in fact

homeless. Second, the residence was the address the Tribe identified as the

father’s home and the only one the Tribe provided to the Department. Third, the

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No. 82918-1-I/24

mother confirmed the father could be found at that address when the social worker

met her there. Finally, it was the address where the social worker later found the

father and spoke to him face-to-face about the pendency of the case and the

services the Department sought to arrange for him. The trial court did not err in

concluding that the father failed to establish by clear and convincing evidence that

the Hulbush residence was not his usual place of abode.

3. Did the Department serve the father through “second-hand service” by
handing the father’s summons to the mother?

The father next contends that under CR 4(c) and RCW 13.34.070(9), he

was improperly served by the mother because she is a party in this dependency

proceeding. The father is conflating substitute service, permitted by RCW

4.28.080(16), with second-hand service. Substitute service requires (1) leaving a

copy of the summons at the house of the defendant's usual abode (2) with a person

of suitable age and discretion (3) who is a resident of the same house. Wichert v.

Cardwell, 117 Wn.2d 148, 150, 812 P.2d 858 (1991).

Service occurs upon delivery to the person of suitable age, whether or not

she then actually hand delivers the summons to the defendant. See A.G., 93 Wn.

App. at 277 (substitute service on mother occurred when pleadings were left with

and accepted by co-resident of house, even though mother’s whereabouts were

unknown).

Second-hand service is a different concept. In Scanlan v. Townsend, 181

Wn.2d 838, 854-56, 336 P.3d 1155 (2014), the Supreme Court held that personal

service can be accomplished by multiple people. In that case, a process server,

attempting to serve Townsend, delivered the summons to her father at the father’s

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No. 82918-1-I/25

home. Townsend, however, no longer resided there. The father, who was not

named in the lawsuit, then delivered the summons to Townsend. 181 Wn.2d at

840-41. The court held that the father had served Townsend. “[D]irect, hand-to-

hand—but ‘secondhand’—service” may be sufficient so long as the service is

made by an allowable person. Scanlan, 181 Wn.2d at 848.

The court said that even if substitute service could not occur at the father’s

address, the plaintiff had personally served Townsend through the father. 181

Wn.2d at 848. But, it noted, Scanlan was not relying on substitute service but was

instead arguing that the father accomplished personal service by handing the

summons to his daughter. Id. The court concluded that the father could, even

unwittingly, serve process on his daughter through second-hand delivery because

he was not a party to the lawsuit. Id. at 853.

In this case, the Department did not rely on second-hand service. It relied,

instead, on substitute service. RCW 4.28.080(16) merely requires that the person

accepting the summons be a resident of the home. 7 It does not state that the

recipient cannot be a party to the same lawsuit. While RCW 13.34.070(9) and CR

4(c) restrict who may perform the act of delivering the summons, neither the statute

nor court rule address who may perform the act of accepting the summons on

another resident’s behalf.

7
The father did not challenge the mother’s status as a “resident” in the home where service
occurred. See Wichert v. Cardwell, 117 Wn.2d 148, 150, 812 P.2d 858 (1991) (adult
daughter who stayed the night at her mother’s home but did not live there could accept
service on behalf of her mother and stepfather); c.f. Salts v. Estes, 133 Wn.2d 160, 162,
943 P.2d 275 (1997)(“[A] person who was a fleeting presence in the defendant's home
was not ‘resident’ therein for purposes” of accepting service).
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No. 82918-1-I/26

Because the Department did not serve the father through second-hand

service, the trial court did not err in concluding that the Department properly served

the father by delivering it to the mother at their house of usual abode.

ICWA and WICWA—Appointment of Counsel

The father next argues that the trial court violated his right to counsel under

25 U.S.C. § 1912(b) and RCW 13.38.110 by not appointing an attorney to

represent him at the commencement of the dependency. Although the father did

not raise this argument below, we nevertheless conclude the trial court had no

obligation to appoint counsel to represent the father until he appeared, requested

an attorney, and established indigency.

25 U.S.C. § 1912(b) provides:

In any case in which the court determines indigency, the
parent or Indian custodian shall have the right to court-appointed
counsel in any removal, placement, or termination proceeding. The
court may, in its discretion, appoint counsel for the child upon a
finding that such appointment is in the best interest of the child.

RCW 13.38.110 is almost identical:

In any child custody proceeding under this chapter in which
the court determines the Indian child’s parent or Indian custodian is
indigent, the parent or Indian custodian shall have the right to court-
appointed counsel. The court may, in its discretion, appoint counsel
for the Indian child upon a finding that the appointment is in the best
interests of the Indian child. 8

8
RCW 13.34.090(2) provides that any parent in a dependency proceeding has the right
to have counsel appointed at public expense when: (a) the parent has appeared or
requested appointment of counsel, and (b) the parent is financially unable to obtain
counsel because of indigency. Thus, in non-ICWA and non-WICWA cases, the statutory
right to counsel is not triggered until a parent appears and demonstrates indigency. Our
court rules follow RCW 13.34.090(2). JuCR 9.2(c)(2) provides that in dependency and
termination proceedings, “[u]pon request of the parent or parents, the court shall appoint
a lawyer for a parent who is unable to obtain a lawyer without causing substantial hardship
to himself or herself or the juvenile’s family. The ability to pay part of the cost of a lawyer
shall not preclude assignment.”
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No. 82918-1-I/27

The father acknowledges that no court in Washington has concluded that

either statutory provision requires the automatic appointment of counsel to a parent

of an Indian child when the parent has neither demonstrated his indigency nor

requested legal representation.

Statutory interpretation of ICWA and WICWA is a question of law we review

de novo. In re Dependency of Z.J.G., 196 Wn.2d 152, 163, 471 P.3d 853 (2020).

The purpose of our inquiry is to determine legislative intent and interpret the

statutory provisions in a way that carries out that intent. Id. If the plain language

is subject to only one interpretation, our inquiry ends. Id. Plain meaning is derived

from the context of the entire statute as well as any related statutes which disclose

legislative intent about the provision in question. Id. ICWA and WICWA are

interpreted coextensively, barring specific differences in their statutory language.

Id.

We conclude that the statutory right to appointed counsel in an ICWA or

WICWA dependency proceeding does not attach until the parent appears in the

proceeding, seeks the appointment of counsel, and establishes indigency. First,

the plain language of 25 U.S.C. § 1912(b) and RCW 13.38.110 both condition the

appointment of counsel on a court finding that a parent is indigent. 9 See State ex

rel. Juvenile Dept. of Multnomah County v. Charles, 70 Or. App. 10, 688 P.2d 1354,

9
ICWA regulations require the court to ensure that notice of the dependency proceeding
is sent to each Tribe where the Indian child may be a member and to the child’s parents.
25 C.F.R. § 23.111(b). This notice must inform the parents that “if the child’s parent or
Indian custodian is unable to afford counsel based on a determination of indigency by the
court, the parent or Indian custodian has the right to court-appointed counsel.” 25 C.F.R.
§ 23.111(d)(6)(iv). If a parent or Indian custodian of an Indian child appears in court
without an attorney, “the court must inform him or her of his or her rights, including any
applicable right to appointed counsel ….” 25 C.F.R.§ 23.111(g).
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No. 82918-1-I/28

1358 (1984) (trial court complied with ICWA by appointing counsel to the Indian

child’s parents on the day they filed their affidavit of indigency with the court).

Second, other statutes addressing the appointment of counsel indicate the

party seeking such services at public expense must come forward to demonstrate

indigency. Although neither ICWA nor WICWA defines the term “indigent” or

“indigency,” or addresses when or how this factual determination is made, RCW

10.101.010(3), the statute governing indigent defense services, and the

dependency statute itself, RCW 13.34.030(16), both define “indigent” identically to

mean:

a person who, at any stage of a court proceeding, is:

(a) Receiving one of the following types of public assistance:
Temporary assistance for needy families, aged, blind, or disabled
assistance benefits, medical care services under RCW 74.09.035,
pregnant women assistance benefits, poverty-related veterans'
benefits, food stamps or food stamp benefits transferred
electronically, refugee resettlement benefits, medicaid, or
supplemental security income; or
(b) Involuntarily committed to a public mental health facility; or
(c) Receiving an annual income, after taxes, of one hundred
twenty-five percent or less of the federally established poverty level;
or
(d) Unable to pay the anticipated cost of counsel for the matter
before the court because his or her available funds are insufficient to
pay any amount for the retention of counsel.

RCW 10.101.020(3) provides that “[t]he determination of indigency shall be

made upon the defendant’s initial contact with the court or at the earliest time

circumstances permit.” Any person receiving the appointment of counsel “shall

also sign an affidavit swearing under penalty of perjury that all income and assets

reported are complete and accurate. In addition, the person must swear in the

affidavit to immediately report any change in financial status to the court.” RCW

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No. 82918-1-I/29

10.101.020(5). The office charged by the court to make the determination of

indigency must maintain a written record of the information obtained from the

defendant that provides the basis for eligibility. RCW 10.101.020(6). These

provisions strongly suggest that the trial court cannot find a parent indigent without

a factual basis for doing so and the source of information about the parents’ ability

to pay must come from the parents themselves.

Third, while RCW 10.101.020(4) permits a court to appoint an attorney on

a provisional basis if the court cannot determine the parent’s eligibility before the

first legal services are rendered, in this case, there was no client from whom an

attorney could have taken instruction. No attorney could ethically or effectively

represent a client when they have no reachable client to consult and do not know

the client's position on the relevant issues. In re Dependency of E.P., 136 Wn.

App. 401, 406, 149 P.3d 440 (2006); A.G., 93 Wn. App. at 278. RPC 1.2(a)

provides that “a lawyer shall abide by a client's decisions concerning the objectives

of representation and . . . shall consult with the client as to the means by which

they are to be pursued.” Had the trial court appointed an attorney to represent the

father’s interests here, that attorney would not have known if the father wanted to

waive any purported defects in personal service, to contest shelter care, to

challenge the infant’s status as dependent, to have any say in placement, or to

visit the infant. 10

10
None of the out-of-state cases on which the father relies are sufficiently legally or
factually analogous. See In re Matter of J.W., 742 P.2d 1171 (Okla. Civ. App. 1987)
(mother found indigent and appointed counsel in dependency proceeding had right under
25 U.S.C. § 1912(b) to appointed attorney after entry of dispositional order and before
termination petition filed; mother could not knowingly or intelligently waive right to counsel
before being advised of right to attorney); In re Matter of I.T.S., 490 P.3d 127, 134 (Okla.
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No. 82918-1-I/30

Because the father did not appear until after the court had entered the

default dependency order and there was no opportunity for the court to make an

indigency determination or for counsel to consult as to the father’s wishes until that

time, the trial court did not violate ICWA or WICWA in failing to sua sponte appoint

counsel to represent the father at the commencement of the dependency.

WICWA—Active Efforts

Finally, the father contends that “at no point did the court find the

Department exerted ‘active efforts’ to prevent the breakup of [the father’s] native

family.” This argument is not supported by the trial court’s default orders, in which

explicit active efforts findings were made.

Both ICWA and WICWA require the Department to make “active efforts” to

prevent the breakup of the Indian family. 25 U.S.C. § 1912(d); RCW 13.38.130(1).

Trial courts presiding over hearings involving children protected by WICWA are

required to evaluate whether active efforts have been taken “at every hearing when

the Indian child is placed out of the home.” In re Dependency of G.J.A., 197 Wn.2d

868, 875, 459 P.3d 631 (2021) (quoting RCW 13.38.040(1)(a)(ii)).

The father argues that the trial court failed to make any “active efforts”

findings at any hearing, including the shelter care hearing. The father, however,

did not challenge shelter care below and did not seek to have G.M.W. returned

2021) (parent of Indian child who had court-appointed attorney through dependency
proceeding had right to uninterrupted court-appointed counsel upon a finding parent was
indigent); Matter of Bluebird, 411 S.E. 2d 820, 824-25 (N.C. App. 1992) (due process not
violated where mother found not indigent at time of dependency but deemed indigent at
time of termination proceeding, where termination based in part on finding of neglect from
dependency proceeding); Matter of M.E.M., 635 P.2d 1313, 1316-17 (Mont. 1981) (trial
court violated 25 U.S.C. § 1912(b) by not appointing counsel to undisputedly indigent,
developmentally disabled mother, even though she did not specifically request one).
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No. 82918-1-I/31

home. (“Again, . . . I’m not asking for return home of the children.”) Additionally,

the father did not list the shelter care order in his notice of appeal or assign error

to the shelter care order itself. The shelter care order is thus not properly before

us. 11

With regard to the subsequent orders, the trial court did make explicit active

efforts findings. In its February 2021 dependency order, the trial court found:

[The Department] made active efforts by actively working with the
parent, parents, or Indian Custodian to engage them 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. . . . This finding is based on
the following: The Department has held case planning meetings and
attempted through all possible forms of communication to establish
and maintain contact with the parents including arranging visitation
and offering resources and services. Mother has also been offered
services through the dependencies established for her older
children.

In its March 2, 2021 dispositional order, the court found that “[the Department]

made active efforts by actively working with the parent, parents, or Indian

Custodian to engage them in remedial services and rehabilitative programs to

11
At the time of that hearing in January 2021, the trial court followed existing precedent,
In re the Dependency of Z.J.G., 10 Wn. App. 2d 446, 450, 448 P.3d 175 (2019), reversed
on other grounds, 196 Wn.2d 152, 471 P.3d 853 (2020), which held that the “active efforts”
requirement did not apply at an imminent harm 72-hour shelter care hearing. The
Washington Supreme Court recently overruled Z.J.G. and held that under WICWA, “[t]he
department [is] presumptively obligated to establish it had provided active efforts to [the
child’s] family before removing him from his home and initiating a dependency,” before
shelter care, unless an emergency arises requiring the removal of a child to prevent
imminent physical harm to that child. In re Dependency of J.M.W., __ Wn.2d __, 514 P.3d
186, 193 (2022). It also held that even if the duty is not triggered at an initial shelter care
hearing, when the Department has had prior contact with a family and has reason to
believe the child is at risk of physical harm, it has an obligation to “at least begin active
efforts to avoid breaking up the family” and the trial court must consider whether active
efforts have been taken at any subsequent hearings. Id.
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No. 82918-1-I/32

prevent the breakup of the Indian family beyond simply providing referrals to such

services, but those efforts have been unsuccessful.”

And again, at the June 15, 2021 first dependency review hearing, the trial

court found that the Department had met its active efforts obligation. The court

found that “[t]he Department staffs this case monthly at the Upper Skagit Indian

Tribe Child Protection Team meetings, while also working closely in collaboration

with the Upper Skagit Indian Tribe and makes ongoing efforts to engage the

parents and offer resources.” The father has not challenged these findings on

appeal.

Whether the Department satisfied the active efforts requirement is a mixed

question of law and fact. In re G.J.A., 197 Wn.2d at 887. We review the trial

court’s findings of fact for substantial evidence and review the legal question of

whether the Department made active efforts in compliance with ICWA and WICWA

de novo. Id.

There is substantial evidence in the record to support the trial court’s active

efforts findings here. Department social worker Faber went to the hospital to meet

with the parents as soon as the Department learned of G.M.W.’s birth and

exposure to drugs in utero. She immediately engaged the Tribe’s social worker to

learn about the family’s background, to locate the parents, to engage them in

services, and to discuss the medical needs of their newborn. She conducted a

FTDM within days of G.M.W.’s birth to try to plan for the child’s safe return home,

but the parents did not participate in this planning session. It does not appear that

either the Department or the Tribe considered the father as a placement possibility,

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No. 82918-1-I/33

and for good reason: he had pending felony charges and several outstanding

arrest warrants, and he had indicated he did not want to care for the infant.

Department social worker Patterson testified that she conducted a case

conference with both parents to establish a working relationship with them and to

help them obtain substance abuse treatment, a mental health assessment, and

parenting instruction. She made multiple attempts to engage both parents in

services, via text, e-mail, Facebook, and telephone. But neither parent was

attending to G.M.W.’s special needs, and the hospital sought a plan for G.M.W.’s

discharge.

The Department engaged the Tribe in every decision made regarding

G.M.W.’s placement after discharge. Both Patterson and the Tribe investigated

the possibility of placing the baby with the mother while she obtained inpatient

treatment, or placing him with relatives, and if neither could occur, then with a foster

home managed by a tribal member.

Patterson also testified about setting up an in-person visitation supervisor

and a video visitation service provider to make sure the parents had the opportunity

to develop a relationship with their newborn infant. Finally, the Department’s court

reports document how it staffed this child’s case on a monthly basis with the Tribe’s

child protection team in an attempt to locate the parents and to engage them in

services.

The Tribe’s social worker supported these efforts, submitting a declaration

in which she laid out everything the Department had done to prevent the breakup

of this Indian family, including its extensive consultation with the Tribe to learn

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No. 82918-1-I/34

about the family’s history, to attempt to contact the parents and provide information

to them, to arrange parent visits, to eliminate barriers to parental engagement, to

conduct a relative search to find relative resources for potential placement and

family support, and to attempt to connect and collaborate with the mother’s

treatment providers. 12

The father argues that he lacked a telephone and that the Department

should have assisted him in obtaining one. But in fact, the social worker’s court

report documented that immediately after the February 4 case conference, at

which the Department learned that the father lacked his own telephone, the social

worker made a service referral to obtain phone service for the father. In an April

2021 entry in this report, Patterson stated that when she met with the father at the

maternal grandmother’s home that month, she “gave [the father] a phone with

minutes that the Department had fully charged, activated, and preprogrammed

[with] contact information including assigned DCYF worker, Upper Skagit Indian

Tribe worker, Office of Assigned Council [sic], visit supervisor at the time, GAL,

and chemical dependency providers.”

The father also argues the Department did not assist him in finding housing.

But the father did not make this argument below. In fact, neither he nor his attorney

contested the Tribe’s testimony that the Department was engaged in trying to

eliminate whatever barriers this father had to reunification with G.M.W.

12
The father does not argue that the Keegahn declaration, filed with the court after the
two orders were entered, cannot be considered when evaluating the sufficiency of the
evidence to support the trial court’s active efforts findings. Moreover, neither ICWA nor
WICWA require expert testimony on the issue of active efforts. The trial court could base
its finding on the social worker’s testimony and court reports.
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No. 82918-1-I/35

Because the trial court made active effort findings at the dependency

hearing, the disposition hearing, and the first dependency review hearing, the trial

court complied with its duty to consider this issue as required by ICWA and

WICWA.

We therefore affirm.

CONCUR:

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No. 82918-1-I/1

COBURN, J. (dissenting) — I respectfully dissent for three reasons. First, the

Department did not personally serve the father as mandated by RCW 13.34.070(8)

despite knowing his probable location three days prior to filing the dependency petition.

Second, the Department relied on the mother, another party in the proceedings, to

provide service to the father in violation of RCW 13.34.070(9). Third, the Department, in

violation of WICWA and ICWA, failed to provide active efforts prior to entering a default

order of dependency.

Proper Service

The personal service statutes that are in tension with each other are in different

titles enacted decades apart with no reference to each other. See Hardel Mut. Plywood

Corp. v. Lewis County, __ Wn.2d __, 515 P.3d 973 (2022) (applying statutory

interpretation to specific and general venue statutes in different titles, adopted at

different times without reference to each other).

It is well established that RCW 4.28.080, under Title 4 RCW addressing civil

procedure, provides for different modes of personal service. The statute explicitly

provides that “[s]ervice made in the modes provided in this section is personal service.”

RCW 4.28.080. After listing numerous requirements of how service must be delivered

in a variety of circumstances not relevant here, subsection 16 in the statute provides

that the summons shall be served “[i]n all other cases, to the defendant personally, or

by leaving a copy of the summons at the house of his or her usual abode with some

person of suitable age and discretion then resident therein.” RCW 4.28.080(16)

(emphasis added). This language was adopted by the legislature in 1893. Laws of

1893, ch. 127, § 7. This is a general statute applicable to standard civil cases.

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No. 82918-1-I/2

Eighty-four years later, the legislature adopted statutes related to dependency of

a child and the termination of a parent and child relationship. RCW 13.34.010. In 1977,

the legislature passed the Juvenile Court Act and adopted provisions now codified in

RCW 13.34.070 that provide personal service procedures specifically in cases that

relate to dependency and termination proceedings. 1 Laws of 1977, 1st Ex. Sess., ch.

291 § 35.

Thus, the legislature established the following mandatory procedures to

effectuate service when the case involves dependency:

If a party to be served with a summons can be found within the
state, the summons shall be served upon the party personally as soon as
possible following the filing of the petition, but in no case later than fifteen
court days before the fact-finding hearing, or such time as set by the court.
If the party is within the state and cannot be personally served, but the
party’s address is known or can with reasonable diligence be ascertained,
the summons may be served upon the party by mailing a copy by certified
mail as soon as possible following the filing of the petition, but in no case
later than fifteen court days before the hearing, or such time as set by the
court. If a party other than the child is without the state but can be found or
the address is known, or can with reasonable diligence be ascertained,
service of the summons may be made either by delivering a copy to the
party personally or by mailing a copy thereof to the party by certified mail
at least ten court days before the fact-finding hearing, or such time as set
by the court.

RCW 13.34.070(8) (emphasis added).

A. Serving Personally

The majority reads the term “personally” in RCW 13.34.070(8) to mean

“personal” service that can be satisfied by serving a parent either personally, by hand-

to-hand delivery, or substitute service at the parent’s usual abode as provided in RCW

4.28.080(16). This ignores the plain language of the statutes.

1Former RCW 4.28.080(15) is the same language now codified under subsection 16.
LAWS OF 1997, ch. 380, § 1.
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No. 82918-1-I/3

“Within our statutory interpretation process, we first consider the statute’s plain

language.” Matter of Adoption of T.A.W., 186 Wn.2d 828, 840, 383 P.3d 492 (2016)

(citing State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007)). “‘If the plain

language is subject to only one interpretation, our inquiry ends because plain language

does not require construction.’” Id. (quoting HomeStreet, Inc. v. Dep’t of Revenue, 166

Wn.2d 444, 451, 210 P.3d 297 (2009)). “If the statutory language is both plain and

unambiguous, the meaning we give the statute must be derived from the statutory

language itself.” Id. “To ascertain the statute’s plain meaning, we may examine (1) the

entirety of the statute in which the disputed provision is found, (2) related statutes, or (3)

other provisions within the same act.” Id. (citing Dept. of Ecology v. Campbell & Gwinn,

LLC, 146 Wn.2d 1, 10, 43 P.3d 4 (2002)).

The term “personally” is not defined in either statutory scheme. However, as the

majority observes, it is well established that to serve “personally” means hand-to-hand

delivery. Majority at 25; See Scanlan v. Townsend, 181 Wn.2d 838, 854-56, 336 P.3d

1155 (2014) (recognizing second-hand service sufficient to satisfy serving “personally”

under RCW 4.28.080(16) when father personally delivered summons to daughter). “‘[I]t

is a fundamental rule of statutory construction that once a statute has been construed

by the highest court of the state, that construction operates as if it were originally written

into it.’” State v. Roggenkamp, 153 Wn.2d 614, 629, 106 P.3d 196 (2005) (quoting

Johnson v. Morris, 87 Wn.2d 922, 927, 557 P.2d 1299 (1976)).

Furthermore, this is consistent with the principle of noscitur a sociis, which

provides that a single word in a statute should not be read in isolation, and that the

meaning of words may be indicated or controlled by those with which they are

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No. 82918-1-I/4

associated. Roggenkamp, 153 Wn.2d at 623. All the different forms of service listed in

RCW 4.28.080 are, by its own language, “modes” of “personal service.” Thus, serving

“personally” is one mode of personal service.

Also, “when amending a statute, the legislature is presumed to know how the

courts have construed and applied the statute.” Roggenkamp, 153 Wn.2d at 629 (citing

In re Pers. Restraint of Quackenbush, 142 Wn.2d 928, 936, 16 P.3d 638 (2001)).

Although RCW 13.34.070(8) was not an amendment of RCW 4.28.080, both statutes

address personal service, and the legislature was aware that for 84 years, under RCW

4.28.080(16), the term “personally” meant hand-to-hand delivery at the time it adopted

RCW 13.34.070(8). The legislature could have simply referenced RCW 4.28.080(16) if

it wished to allow for the same form of service, which expressly allowed for substitute

service at the party’s usual abode, or it could have expressly allowed for substitute

service in RCW 13.34.070(8). It did neither. Instead, the legislature elected to

expressly require parents to be served “personally” within the parameters of RCW

13.34.070(8).

When interpreting a statute, “‘this court is required to assume the Legislature

meant exactly what it said and apply the statute as written.’” Roggenkamp, 153 Wn.2d

at 625 (internal quotation marks omitted) (quoting In re Recall of Pearsall-Stipek, 141

Wn.2d 756, 767, 10 P.3d 1034 (2000)).

The majority turns to the expediency of the need to protect the health and safety

of children and the court’s requirement to schedule timely hearings as a reason why the

legislature must not have meant mandating hand-delivery of a summons. Majority at

21. The majority concludes that doing so “would make service more difficult and time-

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No. 82918-1-I/5

consuming” and “undermine the clearly articulated legislative goal of resolving these

cases quickly.” The majority ignores the parameters built into the statute that allows

the Department to act quickly while also recognizing that dependency proceedings are

different than civil disputes over money or property.

“A parent’s right to the care, custody, and control of his child ‘is perhaps the

oldest of the fundamental liberty interests recognized.’” T.A.W., 186 Wn.2d at 841

(quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49

(2000) (plurality opinion)); see also In re Welfare of Sumey, 94 Wn.2d 757, 762, 621

P.2d 108 (1980). The Washington Supreme Court has repeatedly recognized that

“‘courts undertake a grave responsibility when they deprive parents of the care, custody

and control of their natural children.’” T.A.W., 186 Wn.2d at 840-41 (internal quotation

marks omitted) (quoting In re Pawling, 101 Wn.2d 392, 399, 679 P.2d 916 (1984)).

Moreover, “in assessing the constitutionality of a procedure which infringes upon

parents’ rights to the care, custody, and companionship of their children, it is necessary

to ascertain the proper balance between the parents’ constitutional rights and the

State’s constitutionally protected parens patriae interest in protecting the best interests

of the child.” Sumey, 94 Wn.2d at 762-63.

The legislature did just that in RCW 13.34.070(8) by requiring the Department to

personally serve a parent when the parent “can be found within the state,” but allowing

for service upon the parent “by mailing a copy by certified mail as soon as possible

following the filing of the petition, but in no case later than fifteen court days before the

hearing, or such time as set by the court” when the parent “cannot be personally

served.” When the parent or guardian is a nonresident or the person’s place of

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No. 82918-1-I/6

residence, or whereabouts is unknown, the Department may deposit a copy of the

notice in the post office, postage prepaid, directed to such persons at their last known

place of residence if the Department, “[a]fter due diligence,” has attempted service of

the summons or notice provided for in RCW 13.34.070 but has been unsuccessful.

RCW 13.34.080(1)(b). In such a scenario, “the court shall direct the clerk to publish

notice in a legal newspaper,” but the publication “may proceed simultaneously with

efforts to provide service in person or by mail, when the court determines there is

reason to believe that service in person or by mail will not be successful.” RCW

13.34.080(1), (2).

Thus, the legislature allowed for non-burdensome timely alternative service when

the Department is unable to personally serve the parent so that mandating personal

service would not frustrate the goal of resolving these types of cases quickly.

Additionally, the majority cites to A.G. to support its assertion that “[s]ervice

occurs upon delivery to the person of suitable age, whether or not she then actually

hand delivers the summons to the defendant.” Majority at 24 (citing In re Dependency

of A.G., 93 Wn. App. 268, 277, 968 P.2d 424 (1998) (applying former RCW

4.28.080(15) (1997). However, the A.G. court did not analyze RCW 13.34.070.

In A.G., the mother, whose parental rights were being terminated, claimed she

was not personally served. A.G., 93 Wn. App. at 274. The mother could not be located,

so the Department gave notice by publication. Id. The Department also served her by

leaving a copy of the notice and summons at her last known address. Id. Return of

service noted that a co-resident of the house accepted the documents at that address.

Id.

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No. 82918-1-I/7

The A.G. court found service was proper under former RCW 4.28.080(15) and

RCW 13.34.080. A.G., 93 Wn. App. at 277-78. RCW 13.34.080 allows for notice by

publication simultaneously with efforts to provide service in person or by mail when the

court determines there is reason to believe that service in person or by mail will not be

successful. RCW 13.34.080(2). The A.G. court noted that the mother did not dispute

that she was served properly by publication. A.G., 93 Wn. App. at 278. The A.G. court

made no mention of RCW 13.34.070. Thus, A.G. is not instructive in this analysis.

In the instant case, three days before filing the petition, the Department learned

that tribal law enforcement believed that the father might be staying off the reservation

at C.A.’s mother’s home. The petition was filed on January 15, 2021. The first time the

Department attempted to reach the father at C.A.’s mother’s home on Hulbush Lane in

Burlington, Washington, was after the shelter care hearing on January 19. Patterson,

the Department’s social worker, arrived at the home and spoke with C.A. who said she

would be seeing the father that evening and would give him his copy of the documents.

The Department hand delivered the documents to C.A. and depended on her, the

mother and party in the proceedings, to deliver the father’s documents to him instead of

returning to the home that evening or another day. The Department confirmed at oral

argument that this was the only time the Department physically attempted to serve the

father at Hulbush Lane. Wash. Court of Appeals oral argument, In re the Dependency

of G.M.W., No. 82918-1-I (July 26, 2022), at 9 min., 55 sec. through 10 min., 01 sec.,

video recording by TVW, Washington State’s Public Affairs Network,

https://www.tvw.org/watch/?clientID=9375922947&eventID=2022071065. Both the

mother and father did not appear at the fact-finding hearing on February 16.

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No. 82918-1-I/8

The Department did not comply with RCW 13.34.070(8). The father could be

found within the state and the Department did not serve the father personally as soon

as possible following the filing of the petition and made no attempts to serve the father

personally no later than 15 court dates before the fact-finding hearing.

The majority contends that because “personally” in RCW 13.34.070(8) means

“personal” service as articulated in RCW 4.28.080(16), the Department effectuated

service to the father through substitute service by leaving the documents with C.A. at

the usual abode of the father. Majority at 26. However, as discussed, the legislature

did not elect to allow for such substitute service in dependency cases.

B. Service by Party Prohibited

The legislature also elected to go further than Civil Rule 4(c) by statutorily limiting

who can serve a party. CR 4(c) provides that service of summons and process shall be

performed by any person over 18 years of age who is competent to be a witness in the

action other than a party. CR 4(c). RCW 13.34.070 provides:

Service of summons may be made under the direction of the court by any
person eighteen years of age or older who is not a party to the
proceedings or by any law enforcement officer, probation counselor, or
department employee.

RCW 13.34.070(9) (emphasis added).

Considering that dependency proceedings often deal with allegations of

dysfunctional or challenging home settings, and the proposed action involves interfering

with fundamental parental rights, requiring the Department to at least attempt to serve

the party personally and not just leave the critical summons and petition with someone

at the abode comports with public policy. In the instant case, C.A. was a party to the

proceeding. The Department was aware that she had a lengthy history of heroin that

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No. 82918-1-I/9

affected her ability to parent, that she had pending dependency proceedings involving

two of her three children, and that the Department had attempted to engage her in drug

treatment and mental health treatment since at least 2016. Because G.M.W.’s umbilical

cord tested positive for both amphetamines and heroin, it suggested C.A. was currently

using drugs. It is understandable why the legislature would not allow the Department to

depend on a party in a dependency proceeding to serve another party.

The majority does not dispute that RCW 13.34.070(9) prohibits a party from

serving another party and that C.A. is a party in this proceeding. Nevertheless, the

majority holds that RCW 13.34.070(9) was not violated because C.A. was not the server

and merely accepted service under the substitute service provision under RCW

4.28.080(16). 2 Majority at 25-26. Under this logic, the Department could not have given

the father’s summons and notice to C.A. a block away from the home at Hulbush Lane,

but could do so at the home. It is doubtful the legislature adopted RCW 13.34.070(9)

with the intent to allow for such an absurd scenario.

Further, the Department cannot assume that the mother and father are equally

motivated or share the same defenses. In re Dependency of K.N.J., 151 Wn. App. 306,

311, 211 P.3d 483 (2009) (recognizing that in dependency proceedings, “[e]ach parent

is entitled to mount a separate defense against that allegation; one cannot necessarily

speak for the other”).

The Department violated RCW 13.34.070(9) by depending on the mother, a party

to the proceedings, to serve the father.

2
Though not argued by the father, even under the substitute service alternative in RCW
4.28.080(16) it is questionable whether C.A. would meet the requirement that she is someone of
suitable discretion who is a resident therein as required.
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No. 82918-1-I/10

When there are apparent conflicts between statutes, courts generally resolve

such conflicts by “giving ‘preference to the more specific and more recently enacted

statute.’” Lenander v. Washington State Dep’t of Ret. Sys., 186 Wn.2d 393, 412, 377

P.3d 199 (2016) (internal quotation marks omitted) (quoting Gorman v. Garlock, Inc.,

155 Wn.2d 198, 210, 118 P.3d 311 (2005))). When both a general and specific statute

potentially apply, we give effect to the specific statute unless there is some indication

the legislature intended the general to govern. Hardel Mut. Plywood Corp., 515 P.3d at

976.

RCW 13.34.070 is the more recently enacted statute. RCW 13.34.070(8) and (9)

are more specific than RCW 4.28.080(16). Nothing indicates that the legislature

intended the general standard civil procedure personal service statute to govern in

dependency proceedings when the legislature expressly adopted a personal service

statute specifically for dependency proceedings.

“[A] judgment entered without valid service is void and may be vacated when the

want of jurisdiction is established by evidence.” Rodriguez v. James-Jackson, 127 Wn.

App. 139, 146, 111 P.3d 271 (2005). I respectfully disagree with the majority and would

conclude that because the Department failed to validly serve the father, the court lacked

jurisdiction over him. Accordingly, I would reverse the trial court’s denial of the motion

to vacate the default and dependency orders and remand for further proceedings,

observing that the father did not appeal the shelter care order.

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No. 82918-1-I/11

C. Active Efforts

The majority also concludes that the Department made adequate “active efforts”

under ICWA and WICWA to prevent the breakup of the Indian family. 25 U.S.C. §

1912(d); RCW 13.38.130(1). I disagree.

On appeal, the issue of whether the Department has satisfied the “active efforts”

requirement 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). “This court reviews the trial court’s findings of fact

for substantial evidence, but it reviews the legal question of whether the Department

made active efforts in compliance with ICWA and WICWA de novo.” G.J.A., 197 Wn.2d

at 887.

The ICWA statute, 25 U.S.C. § 1912(d), provides the following regarding active

efforts:

Any party seeking to effect 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.

Similarly, the WICWA statute, RCW 13.38.130(1), provides,

A party seeking to effect 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.

ICWA requires the court “to evaluate the Department’s provision of active efforts”

throughout the dependency, from “foster care placement hearings and termination

hearings.” Matter of Dependency of G.J.A., 197 Wn.2d 868, 907, 489 P.3d 631 (2021)

(citing 25 U.S.C. § 1912(d)). Further, the Bureau of Indian Affairs (BIA) recommends

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No. 82918-1-I/12

the court “‘inquire about active efforts at every court hearing and actively monitor

compliance with the active efforts requirement.’” Id. (citing BUREAU OF INDIAN AFFS.,U.S.

DEP’T OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT 43

(2016), https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf.

WICWA requires the court to make findings of active efforts when the child is first

placed out of the home, at termination, and in any dependency proceeding where the

Department is seeking continued out-of-home placement of an Indian child. RCW

13.38.040(1)(a)(i)-(iii). Further, “the Department bears the burden to demonstrate active

efforts” and the court must “evaluate those efforts at every dependency proceeding

where the child is placed out of the home.” G.J.A., 197 Wn.2d at 907 (citing RCW

13.38.040(1)(a)(ii)); 25 U.S.C. § 1912(d).

In order to comply with ICWA and WICWA, the Department has the
burden to provide “active efforts” that are—at a minimum—thorough,
timely, consistent, and culturally appropriate. 25 U.S.C. § 1912(d); 25
C.F.R. § 23.2; RCW 13.38.040(1)(a). The Department’s actions must be
thorough to “help[ ] the parents to overcome barriers, including actively
assisting the parents in obtaining such services,” and the Department
must “monitor [the parents’] progress and participation in services.” 25
C.F.R. § 23.2(2), (9). The Department cannot simply provide a referral and
leave the parent to engage with providers and complete services on their
own.

G.J.A., 197 Wn.2d at 891-92 (alteration in original). “‘Active efforts’ must be specifically

‘tailored to the facts and circumstances of the case,’ and the Department must act

diligently to address a parent’s particular needs.” Id. at 892 (quoting 25 C.F.R. § 23.2)).

The majority relies on the trial court’s findings of active efforts in the February

dependency order and the March dispositional order. Majority at 31-32. It also points to

the Department’s efforts in April of 2021 when Patterson met with the father at the

Hulbush Lane home and “gave [the father] a phone with minutes that the Department

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No. 82918-1-I/13

had fully charged, activated, and preprogrammed [with] contact information including

assigned DCYF worker, Upper Skagit Indian Tribe worker, Office of Assigned Council

[sic], visit supervisor at the time, GAL, and chemical dependency providers.” Majority at

34 (alteration in original). First, we do not defer to a trial court’s conclusory findings of

active efforts as that is a question of law we review de novo. Second, despite a trial

court’s finding that the Department engaged in active efforts, we do not accept such a

finding when the evidence does not support it.

Relevant is the timing of the Department’s efforts. The question before us is

whether the Department engaged in active efforts prior to the court entering a default

order of dependency and default judgment in February. The fact that the Department

reached the father in April at Hulbush Lane and provided a phone with minutes, fully

charged, activated, and preprogrammed with relevant contact information begs the

question of why the Department did not make such efforts prior to the entry of the

default dependency order.

The majority relies on a court report filed with the court after the February 16 fact-

finding hearing. Majority at 33. This report includes several alleged facts that were not

testified to on the record (i.e. Department put in referral for phone bundle for father after

case conference; attempts have been made to engage parents by “visits to last known

addresses” and “visits to known locations.”). It is not clear when the visits were made,

who made the visits, or if the visits only are in reference to the Patterson’s January 19

service of process attempt or visits to the hospital. The court report was submitted by

Patterson but was not under declaration. The only reference the court made to the

court report was at the disposition hearing when it asked the parties present if there was

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No. 82918-1-I/14

any objection to using the outlined services in the court report as the outline of the

services in the dispositional order. The dependency court based its dependency ruling

on “heard testimony.” 3 At the fact-finding hearing, the Department called one witness,

Patterson, and inquired about her contact with the parents.

Q. What contact have you had with the mother and alleged father at
this point?
A. I have made multiple attempts to contact the father through the
different Facebook accounts I was able to find for him.
I’ve tried calling him and texting him through the information
that came up through the parent locator, as well as what the
hospital records had for him when the child was born.
I have tried to meet with him in person. I was able to talk
with him during the case conference that we had.
And then for the mother, the same efforts with the same
parameters. For both parents, I have also sent out letters to all the
different possible addresses that have come up for them.
And I have talked with her on the phone. I met with her in
person, and I’ve talked with her on Facebook, well, typed with her.
Q. Okay. Thank you.
And [Keeghan] also mentioned that she’s reached out to
them as recently as today to remind them or to ask if they were
planning to appear for court. Have you had similar efforts to
communicate with them and let them know when court was
scheduled?
A. Yes. At the case conference that we had, the father indicated that
the best way to contact him would be through [the mother], and she
had agreed that her phone would be able to be used for that
purpose. So I texted [the mother’s] phone with the information on
how to get into court as well as messaged on Facebook.

3 Notably, the court entered the disposition order without hearing any testimony from a
qualified expert witness. The order noted that “the facts establish by clear, cogent and
convincing evidence, including the testimony of a qualified expert witness, that continued
custody of the child by the” mother and father “is likely to result in serious emotional or physical
damage to the child. RESERVED FOR QEW TESTIMONY OR FILING OF DECLARATION.”
Ten days later, Keeghan, the tribal representative, filed a declaration as the qualified expert
witness stating that G.M.W.’s placement in a foster home was approved by the tribe. Nothing in
the record indicates that the court reviewed the declaration after the order was entered or
amended the disposition order.
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No. 82918-1-I/15

Despite the trial court finding that the Department “attempted through all possible

forms of communication to establish and maintain contact with the parents,” the record

does not support that finding.

The mother and father were called into the case conference meeting together.

While the father indicated the best way to reach him was through the mother, there is no

indication that the Department explained to the father the Department could arrange for

him to have his own cell phone, which the Department did not do until April—after the

default order was entered.

Aside from the case conference where the parents appeared by telephone, the

Department never established contact with the father prior to the entry of the default

order and its attempts at doing so were limited to mailings, messaging via Facebook,

and hoping to reach the father through the mother. Nothing in the record established

that any of the Facebook profiles the Department found with the father’s name actually

belonged to the father. Also, the Department acknowledged that it appeared on

Facebook that its posted messages had not been read.

The record does not establish that Patterson, during the case conference,

attempted to arrange to meet the father or offer to provide rides to the father to help

facilitate obtaining services. During the fact-finding hearing, Patterson testified that she

“tried to meet with him in person,” but did not elaborate on the circumstances, the

frequency, or if it was in reference to the single attempt at service of process in person.

Again, the Department conceded at oral argument that nothing in the record established

that the Department went to Hulbush Lane before the entry of the default order other

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No. 82918-1-I/16

than the initial service attempt on January 19. Wash. Court of Appeals oral argument,

supra, at 9 min., 55 sec. through 10 min., 01 sec.

It is the Department’s burden to demonstrate active efforts, and the court must

evaluate those efforts at each proceeding the child is “out of the home.” G.J.A., 197

Wn.2d at 907 (citing RCW 13.38.040(1)(a)(ii); 25 U.S.C. § 1912(d). Substantial

evidence did not support the court’s finding that the Department engaged in active

efforts as to the father prior to the entry of the default orders. The Department cannot

presume that the mother and the father will maintain the same defenses in a proceeding

and consider it sufficient to depend on one parent to pass along information to the other

parent. It is not beyond reason that parents may disagree whether to contest

dependency. K.N.J., 151 Wn. App. at 311.

CONCLUSION

Because the Department did not properly serve the father in violation of RCW

13.34.070(8), (9), I would reverse the trial court’s denial of the motion to vacate the

default dependency and default disposition orders and remand for further proceedings.

Even if service was proper, I would reverse because the Department failed to engage in

active efforts in violation of WICWA and ICWA and remand for further proceedings. For

these reasons, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11264789. Public record. Not legal advice.