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In re Dependency of Z.J.G.

Court of Appeals of Washington, Division 1

September 3, 2019

In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children,
v.
SCOTT JAMES GREER, Appellant. WASHINGTON STATE DEPARTMENT OF SOCIAL & HEALTH SERVICES, Respondent,

          VERELLEN, J.

         Consistent with the standards of the federal Indian Child Welfare Act of 1978 (ICWA)[1] and the Washington State Indian Child Welfare Act (WICWA), [2] at the commencement of a 72-hour shelter care hearing, the court is obligated to inquire whether the child is or may be an Indian child. But if the Department of Social and Health Services[3] (Department) engages in a good faith investigation into the child's Indian status, the parties elicit the relevant evidence at the hearing, and the court considers that evidence before ruling on shelter care, then the court substantially complies with the inquiry requirement.

         The application of ICWA and WICWA turns on the definition of an "Indian child." The court has "reason to know" a child is or "may be" an Indian child when the court receives evidence that the child is a tribal member or the child is eligible for tribal membership and a biological parent is a tribal member.[4] If there is a reason to know, ICWA and WICWA require the court to treat the child as an Indian child pending a conclusive membership determination by the tribe.[5] But a parent's assertion of Indian heritage, absent other evidence, is not enough to establish a reason to know a child is an Indian child. Either a child or a parent must have a political relationship to a tribe through membership.

         Here, at the time of the shelter care hearing, good faith investigation had not yet revealed evidence a parent or a child was a tribal member. As a result, the court did not err in concluding there was no reason to know the children were Indian children. Of course, the Department was obligated to continue its investigation.

         Even if there is reason to know a child is an Indian child, ICWA's and WICWA's heightened requirements of a 10-day notice to the tribe and active efforts to provide services have no application to an imminent harm 72-hour shelter care hearing because it is an emergency proceeding.

         Therefore, we affirm.

         FACTS

         On June 27, 2018, Z.G., age 21 months, and M.G., age 2 months, were placed in law enforcement protective custody by the Kent Police Department due to concerns of neglect and unsanitary living conditions.[6] Officers noted "[n]o food in the home, a fridge that won't open, items in disarray, rats coming in and out of the [recreational vehicle]."[7]

         On June 29, 2018, the Department filed dependency petitions for Z.G. and M.G.[8] The dependency petitions recite:

Based upon the following, the petitioner knows or has reason to know the child is an Indian child as defined in RCW 13.38.040 and 25 U.S.C. § 1903(4), and the Federal and Washington State Indian Child Welfare Acts do apply to this proceeding:
Mother has Tlingit-Haida heritage and is eligible for membership with Klawock Cooperative Association. She is also identified as having Cherokee heritage on her paternal side. Father states he may have native heritage with Confederated Tribes of the Umatilla in Oregon.
The petitioner has made the following preliminary efforts to provide notice of this proceeding to all tribes to which the petitioner knows or has reason to know the child may be a member or eligible for membership if the biological parent is also a member:
Inquiry to tribes has been initiated. Worker has called Central Council Tlingit Haida regarding this family and petition. Further inquiry and notification to tribes ongoing.[9]

         The shelter care hearing took place on July 2 and 3, 2018. The father, the mother, and the social worker who signed the dependency petitions testified at the hearing. During direct examination, the State asked the social worker whether the children "qualify" under WICWA.[10] The social worker responded, "To my knowledge, not at this time."[11] The State asked, "And what investigation have you done?" The social worker responded,

I called the Tlingit and Haida Indian tribes of Alaska, and they gave me information that the maternal grandmother is an enrolled member, but the mother is not enrolled, and the children are not enrolled. And to my knowledge, the father is not enrolled in a federally recognized tribe either.[12]

         During cross-examination, father's counsel asked the social worker whether "it's possible that the children are eligible for tribal membership?" The social worker replied, "Yes, it is."[13]

         The father testified he had "native heritage with the confederated tribes of the Umatilla in Oregon."[14] The father also indicated that it was his "understanding that [Z.G. and M.G.] are eligible for tribal membership."[15] The mother testified she and the children were "eligible for American Indian tribal membership" with the Tlingit and Haida tribes.[16] She also testified that she was not an enrolled member of a federally recognized tribe.[17]

         In the written shelter care order, the court determined:

Based upon the following, there is not a reason to know the child is an Indian child .... [M]other and father are not enrolled members in a federally recognized tribe. Maternal grandmother is enrolled member, Department continuing to investigate. Mother believes she's eligible for tribal membership.[18]

         The court placed Z.G. and M.G. in licensed foster care.[19]

         On July 30, 2018, the court granted the Tlingit-Haida tribe's motion to intervene. On September 18, 2018, the court entered a dependency order as to the father's parental rights.[20] Consistent with the tribe's intervention, the court determined there was "reason to know" Z.G. and M.G. were Indian children and applied ICWA and WICWA.[21]

         On January 9, 2019, a commissioner of this court granted the father's motion for discretionary review of the shelter care order. Although the father's appeal is technically moot, the commissioner determined the issues were of continuing and substantial public importance.[22]

         ANALYSIS

         A law enforcement officer may take a child into custody without a court order if there is probable cause to believe that the child is abused or neglected and if the child might be injured if it was necessary to first obtain a court order.[23]Within 72 hours of removal either by a law enforcement officer or court order, the court must conduct a shelter care hearing.[24] The father's appeal concerns the application of ICWA and WICWA at the 72-hour shelter care hearing.

         Congress enacted ICWA in 1978 to address, the "'alarmingly high percentage of Indian families [that] are broken up by [ ] removal'" by setting minimum procedural and substantive standards.[25] Shortly after, the Bureau of Indian Affairs (BIA), an agency within the United States Department of the Interior, issued related regulations.[26] The BIA also published guidelines "for State courts to use in interpreting many of ICWA's requirements in Indian child custody proceedings."[27]

         In 2015, the Department of the Interior engaged in a notice-and-comment process to promulgate formal ICWA requirements after "recognizing the need for [binding] regulations."[28] In 2016, the BIA issued those binding regulations and updated the guidelines "to promote the consistent application of ICWA across the United States."[29]

         In 2011, our legislature enacted WICWA with the express intent to clarify "existing laws" and to promote "practices designed to prevent out-of-home placement of Indian children that is inconsistent with the rights of the parents, the health, safety, or welfare of the children, or the interests of their tribe."[30]

         ICWA applies "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved."[31] Similarly, WICWA applies to "any involuntary child custody proceeding seeking the foster care placement of... a child in which the petitioning party or the court knows, or has reason to know, that the child is or may be an Indian child as defined in this chapter."[32] At various times, the parties appear to suggest there is a tension between the best interests of the child and the interests of the tribe, but the federal guidelines recognize "ICWA was specifically designed by Congress to protect the best interests of Indian children."[33] The federal guidelines further explain:

One of the most important ways that ICWA protects the best interests of Indian children is by ensuring that, if possible, children remain with their parents and that, if they are separated, that support for reunification is provided. This is entirely consistent with the "best interests" standard applied in state courts ....
. . . Congress found that the unfettered subjective application of the "best interests" standard often failed to consider [t]ribal cultural practices or recognize the long-term advantages to children of remaining with their families and [t]ribes.[34]

         The federal guidelines acknowledge the best interests of the child and the interests of the tribe are usually aligned, rather than in conflict. Application of ICWA and WICWA does not sacrifice an Indian child's safety or well-being to satisfy the interests of the tribe. "ICWA and the regulations provide objective standards that are designed to promote the welfare and short- and long-term interests of Indian children" and "provide flexibility for courts to appropriately consider the particular circumstances of the individual children and to protect those children."[35]

         I. Threshold Inquiry at Shelter Care Hearing

         The father contends the juvenile court failed to conduct an adequate inquiry at the shelter care hearing concerning the applicability of ICWA and WICWA.

         With regard to the court's duty at the shelter care hearing, RCW 13.34.065(4) of the Juvenile Court Act provides, "The paramount consideration for the court shall be the health, welfare, and safety of the child" and sets minimum inquiries the court must conduct, including "[w]hether the child is or may be an Indian child."[36]

         WICWA requires the court to determine the applicability of WICWA "as soon as practicable."[37] Federal regulations require the court to conduct the threshold inquiry "in an emergency or voluntary or involuntary child-custody proceeding."[38] Regardless of whether a shelter care hearing is an involuntary or emergency proceeding, the court must inquire into the child's Indian status and ask each participant "whether the participant knows or has reason to know that the child is an Indian child."[39] This "inquiry is made at the commencement of the proceeding and all responses should be on the record."[40]

         Here, at the shelter care hearing, the State asked the social worker whether the children "qualified" under WICWA. The social worker summarized his telephone call with the Tlingit and Haida tribes, who confirmed only the maternal grandmother is an enrolled member. The social worker's investigation did not reveal either of the parents or children were members of a tribe. The social worker acknowledged it is possible the children are eligible for tribal membership.

         The father testified he had "native heritage with the confederated tribes of the Umatilla in Oregon."[41] The father also indicated that it was his "understanding that [Z.G. and M.G.] are eligible for tribal membership."[42]

         The mother testified she and the children were "eligible for American Indian tribal membership" with the Tlingit and Haida Tribes.[43] She also testified that she was not an enrolled member of a federally recognized tribe.[44] In the written shelter care order, the court found, "[T]there is not a reason to know the child is an Indian child."[45]

         The father argues the court did not comply with 25 C.F.R. § 23.107(a) because it did not conduct the threshold reason-to-know inquiry itself. The State argues that although the court did not conduct the inquiry, the hearing substantially complied with the federal regulation because the parties elicited the relevant information concerning Z.G.'s and M.G.'s Indian status.

         The father also contends the court did not comply with the federal regulation because it did not conduct the inquiry at the commencement of the shelter care hearing.[46] In response, the State argues the hearing substantially complied with the federal regulation because the court addressed Z.G.'s and M.G.'s Indian status before ruling on shelter care.

         Our courts have applied the doctrine of substantial compliance to ICWA and WICWA requirements. In In re the Welfare of M.S.S., Division Two of this court applied the doctrine of substantial compliance to ICWA's notice requirement.[47] In M.S.S., the father appealed the court's termination of his parental rights, arguing the court lacked jurisdiction because the Department failed to strictly comply with the notice provisions of ICWA.

         In M.S.S., the termination hearing occurred on June 30, 1995. Before the hearing, on June 22, 1995, the father's attorney informed the social worker that the Cook Inlet Indian tribe had identified the children's maternal grandmother as an enrolled member.[48] The next day, the social worker sent an inquiry to the Cook Inlet tribe by overnight mail.[49] On June 26, 1995, the Cook Inlet tribe informed the social worker that the tribe did not want to intervene or otherwise be involved in the proceedings.[50] The social worker did not comply with the ICWA notice requirements because he did not send the inquiry by registered mail with return receipt requested, and the tribe did not receive notice at least 10 days before the termination hearing.

         In analyzing whether the notice substantially complied with ICWA, Division Two focused on the purpose behind the notice requirement:

Notice is a key component of the congressional goal to protect and preserve Native American families. It ensures that the tribe will be afforded the opportunity to assert its rights under the act. Without such notice, the rights guaranteed by the ICWA are meaningless.[51]

         The court reasoned that "technical compliance with the act is not required if there has been substantial compliance with the notice provisions of the ICWA."[52] The court determined the tribe had actual notice, "and because we find no prejudice to either the tribe or the children by the failure to send the notice by registered mail, we hold that the overnight mailing substantially complied with the mailing requirements of the act."[53] But the court ultimately decided to remand because the social worker mailed the information only seven days before the termination hearing.[54]

         Here, the court received and considered evidence regarding the children's status. The father argues the court made no attempt at compliance because the court did not conduct the inquiry "outside the constraints of the adversarial process."[55] The father contends the court's determination that ICWA and WICWA did not apply was "limited only to the evidence that the parties chose to present."[56]But he fails to point to any evidence he was unable to present. The father elicited testimony from all the participants and presented argument to the court concerning the applicability of ICWA and WICWA.

         Similarly, although the inquiry did not occur at the commencement of the hearing, the court addressed ICWA and WICWA before issuing its ruling on shelter care. The federal guidelines emphasize the importance of determining "at the outset of a State court child custody proceeding whether ICWA applies" because "[d]oing so promotes stability for Indian children and families and conserves resources by reducing the need for delays, duplication, appeals, and attendant disruptions."[57]

If this inquiry is not timely, a child-custody proceeding may not comply with ICWA and thus may deny ICWA protections to Indian children and their families or, at the very least, cause inefficiencies. The failure to timely determine if ICWA applies also can generate unnecessary delays, as the court and the parties may need to redo certain processes or findings under the correct standard. This is inefficient for courts and parties, and can create delays and instability in placements for the Indian child.[58]

         Here, consistent with RCW 13.34.065 of the Juvenile Court Act, the shelter care hearing occurred at the beginning of the dependency. There was no increased risk of delay across the course of the entire dependency proceeding just because the court did not conduct the inquiry precisely at the start of the shelter care hearing. The purpose of the initial inquiry at shelter care was accomplished here. The court received the available information about the children's Indian child status before making a shelter care decision.

         We conclude the shelter care hearing in this case substantially complied with 25 C.F.R. § 23.107(a) and RCW 13.34.065(4)(h).

         II. "Reason to Know" an Indian Child is Involved

         The father argues the court erred at the shelter care hearing when it determined ICWA and WICWA did not apply.

         Whether ICWA and WICWA apply is a question of law we review de novo.[59]ICWA applies "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved."[60] Similarly, WICWA applies to "any involuntary child custody proceeding seeking the foster care placement of... a child in which the petitioning party or the court knows, or has reason to know, that the child is or may be an Indian child as defined in this chapter."[61]

         Generally, with regard to harmonizing ICWA and WICWA, our Supreme Court has determined the two "should be read as coextensive barring specific differences in their statutory language. In this way, ... the acts will be interpreted as analogous and conterminous unless one provides greater protection, in which case the more protective act will supplant the less protective act."[62] Although WICWA and ICWA are not identical, WICWA's express intent was to clarify rather than expand ICWA.[63]

         Under both ICWA and WICWA, an "Indian child" is defined as an "unmarried and unemancipated Indian person who is under eighteen years of age and is either: (a) A member of an Indian tribe; or (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."[64] Both acts provide that only the tribe can make the ultimate determination as to whether an individual is a member of the tribe.

         The federal regulations provide, "The determination by a [t]ribe of whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member, is solely within the jurisdiction and authority of the [t]ribe."[65] Similarly, WICWA provides, "A written determination by an Indian tribe that a child is a member of or eligible for membership in that tribe, or testimony by the tribe attesting to such status shall be conclusive that the child is an Indian child."[66]

         To safeguard against the situation where a state court lacks a tribe's conclusive determination whether a child is an Indian child, the state court must analyze whether there is reason to know a child is an Indian child. This safeguard honors the tribe's authority to conclusively determine tribal membership.[67]

         The father argues our legislature's inclusion of "may be" "casts an even wider net" than the mere reason-to-know standard from ICWA.[68] We disagree. The language of WICWA mirrors 25 C.F.R. § 23.107(b), which provides:

If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an "Indian child," the court must:
(1) Confirm, byway of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the [t]ribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership); and
(2) Treat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an "Indian child" in this part.[69]

         Our legislature's inclusion of "may be" in WICWA and the above federal regulation address the situation where there is evidence that satisfies the definition of "Indian child" but that evidence has not been confirmed or rejected by the tribe. As here, where no one asserts the child is a tribal member, ICWA and WICWA apply only if the child is eligible for tribal membership and one of the child's biological parents is a tribal member. A parent's belief that the child is eligible for tribal membership without evidence that one of the parents is a tribal member is insufficient to establish ICWA and WICWA apply to the child.

         It is also important to note that the statutory definition of "Indian child" turns on membership rather than enrollment. "'Member' and 'membership' means a determination by an Indian tribe that a person is a member or eligible for membership in that Indian tribe."[70] Depending on the practices of the specific tribe, enrollment and membership may be but are not necessarily synonymous.

[M]any tribes require a person to register or enroll in order to be considered a member of the tribe, but some do not and automatically include a person as a member if the person is descended from a tribal member who was listed on the tribal rolls as of a specific date. Accordingly, the absence of enrollment alone may not necessarily be determinative of whether a person is a member of a tribe.[71]

         Here, at the shelter care hearing, the State asked the social worker, "And what investigation have you done?"; the social worker responded,

I called the Tlingit and Haida Indian tribes of Alaska, and they gave me information that the maternal grandmother is an enrolled member, but the mother is not enrolled, and the children are not enrolled. And to my knowledge, the father is not enrolled in a federally-recognized tribe either.[72]

         The social worker and the father testified it was possible the children were eligible for tribal membership.[73] The mother testified she and the children were "eligible for American Indian tribal membership" with the Tlingit and Haida Tribes.[74] But she also testified that she was not an enrolled member of a federally recognized tribe.[75]

         In the written shelter care order, the court found, "[T]here is not a reason to know the child is an Indian child."[76] "Mother and father are not enrolled members in a federally recognized tribe. Maternal grandmother is enrolled member, Department continuing to investigate. Mother believes she's eligible for tribal membership."[77]

         The father relies on In re Dependency of T.L.G. to argue the parents' assertion of Indian heritage is enough to establish a reason to know.[78] In T.L.G., before the Department filed dependency petitions for the two children, the mother disclosed possible Indian heritage.[79] The mother was adopted as an infant but had been told her biological father was "full-blooded Cherokee."[80] In the dependency petitions and the agreed dependency orders, the Department asserted the children were not Indian children.[81] The mother did not challenge these assertions.[82]

         When the children's potential Indian status came up at a permanency planning hearing, the court ordered the Department to investigate.[83] The caseworker told the mother the Department needed her adoption records to investigate, but the mother was unable to get the records.[84] Ultimately, neither the Department nor the court provided notice to the children's potential tribes. At the termination trial, the court concluded ICWA did not apply because the mother was not an enrolled member of a tribe and she did not assist the Department's investigation.[85] The mother appealed.

         On appeal, this court discussed the importance of the notice requirements under ICWA: "One reason notice is a key component of ICWA is to ensure that tribes will have the opportunity to assert their rights independent of the parents or state agency."[86] This court emphasized, "[N]o formal notice was given to the tribe or the [BIA], even after the court ordered [the Department] to investigate the children's Indian ...


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