# R.B. v. C.W.

> Washington Supreme Court · October 27, 2016 · 186 Wash. 2d 828

URL: https://www.frixlaw.com/law-library/cases/4716575

## Case

- **Full name:** In the Matter of the Adoption of T.A.W. R.B. v. C.W.
- **Court:** Washington Supreme Court
- **Decided:** October 27, 2016
- **Citations:** 186 Wash. 2d 828; 383 P.3d 492
- **Precedential status:** Published
- **Opinion:** Dissent by Madsen
- **Judges:** Fairhurst, González, Johnson, Madsen, McCloud, Owens, Stephens, Wiggins
- **Cited by:** 61 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/4716575

## How later opinions describe it (automated extraction)

- holding that ICWA’s “active efforts provision . . . appl[ies] to privately initiated terminations” and remanding for trial court to determine whether “active efforts ha[d] been” made to prevent the breakup of the Indian family
- concluding that ICWA applies to the non-Indian parent's parental rights, and thus, active efforts must be taken to reunify the child with the non-Indian parent
- noting that while ICWA does not provide a definition of “active efforts,” WICWA does
- noting, for purposes of ICWA and WICWA, an “Indian family” is an Indian child’s family, regardless of the parent’s Indian status

## Opinion text

Madsen, C.J.
¶72 (dissenting) — The majority holds that RCW 13.38.130(1) of the Washington State Indian Child Welfare Act (WICWA) applies to privately initiated proceedings to terminate parental rights, that the termination proceeding here falls within RCW 13.38.040(1)(b)’s definition of “active efforts,” and that therefore the termination petitioners, who are the Indian child’s (T.A.W.’s) biological mother (C.B.) and the mother’s husband (R.B.), were “required to show” that T.A.W.’s biological father (C.W.) had “received active efforts” before his parental rights were terminated. Majority at 854. While I agree that these statutes apply here, in my view, the majority’s reading of *863 these provisions gives insufficient deference to the discretion vested in the trial court by the WICWA to assess such efforts in the context of the facts of the case presented. In my view, under the particular circumstances of this case, the trial court’s findings are adequate and its termination order should be affirmed. Accordingly, I dissent.
Analysis
¶73 When construing a statute, our goal is to carry out the intent of the legislature. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 6 , 721 P.2d 1 (1986). We recently explained the appropriate analysis in BAC Home Loans Servicing, LP v. Fulbright, as follows:
“[W]e strive to ascertain the intention of the legislature by first examining a statute’s plain meaning.” G-P Gypsum Corp. v. Dep’t of Revenue, 169 Wn.2d 304, 309 , 237 P.3d 256 (2010) (citing Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10 , 43 P.3d 4 (2002)). To glean the meaning of words in a statute, we do not look at those words alone, but “ ‘ “all [of] the terms and provisions of the act in relation to the subject of the legislation, the nature of the act, [and] the general object to be accomplished and consequences that would, result from construing the particular statute in one way or another.” ’ ” Burns v. City of Seattle, 161 Wn.2d 129, 146 , 164 P.3d 475 (2007) (quoting State v. Krall, 125 Wn.2d 146, 148 , 881 P.2d 1040 (1994) (quoting State v. Huntzinger, 92 Wn.2d 128, 133 , 594 P.2d 917 (1979))).
180 Wn.2d 754, 766 , 328 P.3d 895 (2014) (emphasis added) (alterations in original).
¶74 RCW 13.38.130(1) provides, “A party seeking ... 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 *864 and that these efforts have proved unsuccessful.” 21 (Emphasis added.) The WICWA defines “active efforts” in RCW 13.38.040(1) and states in relevant part:
In any . . . termination of parental rights proceeding in which the petitioner does not otherwise have a statutory or contractual duty to directly provide services to, or procure services for, the parent..., “active efforts” means a documented, concerted, and good faith effort to facilitate the parent’s ... receipt of and engagement in services capable of meeting the criteria set out in (a) of this subsection.
RCW 13.38.040(1)(b). 22
¶75 In my view, the trial court’s findings adequately encompass these inquiries. Relevant here, the trial court found that within less than six months after T.A.W.’s December 23, 2007 birth, C.W. was addicted to methamphetamine. In the spring of 2009, C.W. engaged in domestic violence against C.B., and C.B. obtained a temporary protection order and filed for dissolution. During the year preceding these events, “[C.W.] had extremely limited contact with [T.A.W.]. Any contact between the father and the child was initiated by [C.B.] or [C.W.’s] mother, not by any effort of [C.W.].” Clerk’s Papers at 91. The trial court found that “[t]he father has not had face-to-face contact with the child since August 2009, and this failure is the sole responsibility of the father.” Id. The trial court found that “[C.B.] made a good faith effort to establish and maintain a relationship between [C.W.] and the child, and this effort was rejected by [C.W.].”M. Noting that C.W. has been in and *865 out of prison since 2010, the court found that during that time period, C.W. made little or no effort to contact T.A.W. while he was incarcerated and when he was not incarcerated. The court found that from the summer of 2010, C.W. did not communicate with T.A.W. in any way that demonstrated love or affection for the child, that C.W. was “currently unfit to parent [T.A.W.],” that C.W. was “currently incapable of providing a safe environment for [T.A.W.],” that it is in T.A.W.’s best interest that C.W.’s parental rights be terminated, and that T.A.W. is presently in a “stable home” with C.B. and his stepfather and has bonded with the stepfather. Id. at 92. All of these findings find support in the trial transcript. Yet the majority chooses to discount these findings because the trial court did not expressly label them as addressing C.B.’s “active efforts” prior to seeking termination of C.W.’s parental rights. Majority at 854 n.16. In my view, the “active efforts” inquiry is not a talismanic incantation—instead, as discussed below, the judge’s findings fully support the requirements intended by the legislature. That is enough.
¶76 I find persuasive an Iowa appellate court decision addressing a comparable state statute. 23 In In re Interest of C.A.V., the Iowa court held, “The ‘active efforts’ requirement must be construed in the context of the existing circumstances.” 787 N.W.2d 96 , 104 (Iowa Ct. App. 2010). In C.A.V., like the present case, the mother of an Indian child “encouraged [the father] to participate in his daughter’s life by facilitating visits before his incarceration and by inviting continued contact during his prison stay.” Id. at 103. The mother’s “efforts to preserve the parent-child relationship *866 were not successful because [the father] decided not to communicate with [the child].” Id. When the mother sought termination of the Indian child’s biological father’s parental rights, the Iowa court held that because resources enumerated in the state Indian child welfare statute were not available to the mother, “her duty under the statute was satisfied.” Id. In other words, the mother did all that she could do to facilitate the father’s relationship with the Indian child; those efforts did not include the provision of agency or institutional resources and services that she did not have access to or that were otherwise unavailable. That is the circumstance and the appropriate result here also. Like C.A.V., the mother here facilitated the development of the father’s relationship with the Indian child, but those efforts were unsuccessful. The mother testified concerning her efforts and other efforts to assist C.W., but she could not personally provide institutional resources. 24
¶77 Further, when the Pacific County Superior Court entered its September 21, 2014 findings of fact, conclusions of law, and order of termination, a domestic violence protection order that prohibited C.W. from having any contact with C.B. or T.A.W. was still in place. 25 Once the no contact order was in place, the existence of that order made any *867 efforts by C.B. to facilitate C.W.’s participation in rehabilitative services (drug treatment) or visitation impracticable. Thus, in my view, considering the “active efforts” inquiry in the context of the existing circumstances, under the facts of this case any obligation C.B. had to provide “active efforts” under the federal Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 , or WICWA was satisfied.
¶78 This approach is in accord with the legislative purpose behind the ICWA and the WICWA. See 25 U.S.C. § 1902 (noting the national policy to protect best interests of Indian children and the stability of Indian tribes); RCW 13.38.030 (noting State’s commitment to protecting tribal relations and best interests of Indian children). As the Iowa decision discussed above opined, “While the [state] ICWA focuses on preserving Indian culture, it does not do so at the expense of a child’s right to security and stability.” C.A.V., 787 N.W.2d at 104. Again, I agree. The best interests of the child remains the touchstone even in this termination proceeding. 26
¶79 In applying the statutes here, we are to keep in mind the “ ‘object to be accomplished’ ” by the legislation and the “ ‘consequences that would result’ ” from construing the statute one way or another. 27 BAC Home Loans, 180 Wn.2d at 766 (internal quotation marks omitted) (quoting Burns, 161 Wn.2d at 146 ). Here, the trial court’s orders terminating C.W.’s parental rights and entering an adoption decree serve the legislative dual purposes of protecting tribal *868 relations and the best interests of the Indian child. As a result of the orders, Indian child T.A.W. is in an Indian home with his Indian natural mother and with an Indian stepfather with whom T.A.W. has bonded. As discussed above, in my view, the trial court’s findings sufficiently cover any “active efforts” inquiry and the majority’s remand for further findings concerning “active efforts” is not necessary.
¶80 Implicit in the majority’s decision is that more is required of the mother than was performed here. As discussed above, I disagree with that premise particularly in this case, where a protection order forbade contact of any type between the father and the mother and child. The correct approach is to leave the assessment of active efforts to the sound discretion of the trial judge, as both the ICWA and the WICWA direct, in light of the circumstances of the case.
Conclusion
¶81 Both the ICWA and the WICWA vest discretion in the trial court to assess active efforts. In doing so, in my view, the trial court will take into account the particular circumstances of each case and will remain cognizant of the best interests of the Indian child. In my view, the trial court here did so. Remand for reconsideration of the trial court’s termination decision is not warranted on this basis. Accordingly, I dissent.
Similarly, the federal Indian Child Welfare Act provides, “Any party seeking . . . 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.’’ 25 U.S.C. § 1912 (d) (emphasis added).
Subsection (1)(a) of the noted statute addresses the Department of Social and Health Services’ provision, pursuant to statute or contract, of “reasonably available and culturally appropriate preventive, remedial, or rehabilitative services’’ to the parent of an Indian child in a proceeding concerning placement, dependency, or termination of parental rights. RCW 13.38.040(1)(a).
The Iowa statute at issue provides in relevant part:
A party seeking . . . termination of parental rights over an Indian child shall provide evidence to 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.
Iowa Code § 232B.5(19); In re Interest of C.A.V., 787 N.W.2d 96, 103 (Iowa Ct. App. 2010). The Iowa statute further requires that “active efforts’’ be “vigorous and concerted.’’ Iowa Code § 232B.5(19).
C.B. testified that her tribe helped C.W. get into drug treatment, and that when she and C.W. first separated she took T.A.W. to C.W.’s mother’s house to visit with C.W. C.B. also later made a book containing photographs of T.A.W. from 2007 to 2011 and sent it to C.W. C.B. testified that she did so “[b]ecause at the time I thought he wanted to be a dad.” Verbatim Report of Proceedings (Mar. 31, 2014) at 60.
The protection order was issued by the Shoalwater Bay Tribal Court on September 12, 2012 and expressly ran through September 12, 2015. It prohibited “any contact whatsoever, in person or though others, by phone, mail, e-mail, answering machine, or any means whatsoever, directly or indirectly,” thereby ensuring that C.W. had no contact with C.B. and T.A.W. Ex. 10, at 2. In October 2012, C.W. moved the tribal court to modify the no contact order, but the resulting order directed that “defendant shall attend DV [domestic violence] prevention classes” and that “upon at least 6 months of DV classes/program defendant may petition [the tribal] court for rehearing on this matter.” Ex. 12 (emphasis added). The October 2012 order did not alter the effect of the tribal court’s September 2012 no contact order, and there is no evidence that C.W. met the prerequisite for revisiting the no contact order.
See In re Interest of D.S., 806 N.W.2d 458, 465 (Iowa Ct. App. 2011) (paramount concern in termination proceedings is the best interests of the child, and remains so even where ICWA applies); see also id. at 474 (in determining best interests, primary considerations are the child’s safety, the best placement for furthering the long-term nurturing and growth of the child, and the physical, mental, and emotional condition and needs of the child); see also In re Interest of Pawling, 101 Wn.2d 392, 399 , 679 P.2d 916 (1984) (in termination proceeding where rights of the parent and welfare of the child conflict, the best interests of the child must prevail).
Notably, the problem that the ICWA was intended to address—“abusive child welfare practices’’ that removed Indian children from their homes and placed them in non-Indian homes—is not present here. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 , 109 S. Ct. 1597 , 104 L. Ed. 2d 29 (1989).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4716575. Public record. Not legal advice.