A.P.-G. v. DEPT. OF SOCIAL AND HEALTH SERV., 149 Wn. App. 1032 (2009)

In the Matter of the Dependency of A.P.-G. E.F.G., Appellant, v. THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 37925-2-II.The Court of Appeals of Washington, Division Two.
March 24, 2009.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for Pacific County, No. 08-7-00017-6, Michael J. Sullivan, J., entered June 24, 2008.

Remanded by unpublished opinion per Armstrong, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.


E.F.G. (the father) appeals a Pacific County Superior Court order terminating his parental rights to A.P.-G. He contends that the record does not support the juvenile court’s findings pursuant to RCW 13.34.180(1)(f) and RCW 13.34.190(2). He also challenges the determination that A.P.-G. is not an Indian child as defined by 25 U.S.C. § 1903(4) and contends that the Department of Social and Health Services (Department) failed to satisfy the notice requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1912(a). We find no error with regard to the findings under RCW 13.34.180 and .190, but remand for compliance with ICWA.[1]

A.P.-G. became a dependent child in April 2005, when she was three years old.[2] The Department removed her from her mother’s care because of the mother’s drug use and neglect A.P.-G.’s father had never been involved in her life. He had lived with her mother before A.P.-G. was born, but had left when the mother told him she was pregnant. The mother called him to let him know about A.P.-G.’s birth, but he did not attempt to see the child. His whereabouts were unknown when the Department removed A.P.-G. from her mother’s custody. He learned about the dependency in April 2007 and moved from Oregon to Washington.

The dependency orders required the father to obtain a drug and alcohol evaluation and comply with recommendations, comply with urinalysis requests from the Department or treatment provider, obtain domestic violence and mental health evaluations and complete any accompanying recommendations, maintain weekly contact with the caseworker, and participate in regular visitation with A.P.-G.

The father completed alcohol/drug and mental health evaluations, but declined to follow recommendations that he undergo counseling and attend alcohol anonymous and narcotic anonymous meetings. He maintained that he did not have any substance abuse problems, and that he did not need mental health counseling because he had strong support from family and friends. He provided some samples for urinalyses, all of which were negative, but refused to provide others.

The father also declined to undergo a domestic violence assessment, asserting that he did not need treatment because he had completed a domestic violence program in Oregon, as a condition of his probation for a 2003 assault conviction. However, the Department requested the evaluation because of a domestic violence incident in 2007 when the father was living with A.P.-G.’s mother. He described that incident as a misunderstanding. He said that he and the mother got into an argument. He pushed her. A friend tried to intervene, and he “put [the friend] on the ground without throwing a punch.” Report of Proceedings (RP) at 147-48. No charges were filed.

The father initially visited regularly with A.P.-G., but his visits became sporadic after a few months. He visited only nine times in the 14 months during which he participated in the dependency, and he had no contact with the child in the six months before the termination trial. He asserted that a caseworker had told him that he could not visit until he completed the domestic violence assessment. The caseworkers denied this, testifying that visitation was scheduled for every Friday during the dependency, and the Department was always willing to assist the father with bus tickets, lodging, gas vouchers, and flexible visitation hours.

The father acknowledged that he was defensive toward case workers and did not maintain good contact. He explained that he felt they took advantage of him because they told him that if he came to Washington, he would probably get custody of his daughter, and then they required him to jump through “all these hoops.” RP at 125. Because of this attitude and his belief that he did not need services, his last caseworker and the guardian ad litem believed that he would not correct his parental deficiencies in A.P.-G.’s near future, and recommended termination. The juvenile court agreed, entering the termination order on June 24, 2008.

The father contends that the Department’s evidence was insufficient to support the finding under RCW 13.34.180(1)(f), that “continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home.” We will uphold that finding if it is supported by clear, cogent, and convincing evidence, i.e., evidence that makes the ultimate fact at issue highly probable In re Dependency of K.R., 128 Wn.2d 129, 140-41, 904 P.2d 1132 (1995). Because only the juvenile court has the opportunity to hear the testimony and observe the witnesses, its decision is entitled to deference, and this court will not judge the credibility of witnesses or reweigh the evidence. In re Dependency of A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277

We note first that the father does not challenge the finding under RCW 13.34.180(1)(e), that there is little likelihood that conditions will be remedied so that the child can be returned to him in the near future. That finding is, therefore, a verity on appeal. In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001). It is also well supported by the record. The father declined almost all services, insisting that he did not need them, despite his admission that his childhood in foster care had resulted in some problems, and despite the fact that his own description of the 2007 incident with A.P.-G.’s mother certainly suggested an anger management problem. More importantly, he demonstrated no real commitment to parenting A.P.-G. He did not attempt to have any contact with the child until she was five years old. Even then, he was not very diligent about visits, and he stopped visiting altogether six months before the termination trial. Under the circumstances, there was no good reason to believe that the father would correct parenting problems at any time meaningful to A.P.-G.

When the Department proves the allegation in RCW 13.34.180(1)(e), it “necessarily follows” that continuation of the parent and child relationship diminishes the child’s prospects for early integration into a permanent home. In re Dependency of J.C., 130 Wn.2d 418, 924 P.2d (1996); see also In re Dependency of T.R., 108 Wn. App. 149, 166, 29 P.3d 1275 (2001).

The father next challenges the finding under RCW 13.34.190(2), that termination of his parental rights is in A.P.-G.’s best interests. This finding must be supported by a preponderance of the evidence. See In re Welfare of A.J.R., 78 Wn. App. 222, 228, 896 P.2d 1298 (1995). We place “very strong
reliance” on the trial court’s determination. See In re Pawling, 101 Wn.2d 392, 401, 679 P.2d 916 (1984) (quotin In re Welfare of Todd, 68 Wn.2d 587, 591, 414 P.2d 605
(1966)). The juvenile court’s determination is amply supported by (1) the poor prognosis for improvement by the father, (2) the length of this dependency, and (3) the potential for adoption by the child’s foster parents. See Dependency of T.R., 108 Wn. App. at 167.

Finally, the father contends that the record does not support the juvenile court’s determination that A.P.-G. is not an Indian child as defined by 25 U.S.C. § 1903(4), and the Department failed to comply with the notice requirements of ICWA, 25 U.S.C. § 1912(a).

ICWA defines an “Indian Child” as a minor who is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). The Department asserts that A.P.-G. did not fit this definition because her mother was not a member of a tribe at the time of the termination trial. On the first day of trial, the mother told the court that “they”[3] were in the process of enrolling in the Chippewa Tribe, that she had not received “the document” from the tribe yet, “but once we are, then they will be enrolled.” RP at 26.

Enrollment is not necessarily determinative of Indian status, however. See In re Interest of Mahaney, 146 Wn.2d 878, 889 n. 4, 51 P.3d 776 (2002); In re Dependency of T.L.G., 126 Wn. App. 181, 191, 108 P.3d 156 (2005). It is solely the tribe’s prerogative to establish membership criteria and determine who meets those criteria. Bureau of Indian Affairs (BIA) Guideline B, 44 Fed. Reg. 67,586 (Nov. 26, 1979)[4] Dependency of T.L.G., 126 Wn. App. at 191. It cannot be said with certainty that the Chippewa Tribe did not consider the mother to be a member at the time of the termination trial.

ICWA requires the State to notify the Indian child’s tribe of pending proceedings and the tribe’s right to intervene. ICWA, 25 U.S.C. § 1912(a). The child’s status need not be certain In re Matter of Kahlen W., 233 Cal. App. 3rd 1414, 1422, 285 Cal. Rptr. 507 (Cal.Ct.App. 1991). Notice is required whenever a court has reason to believe a child is Indian. In re Matter of Kahlen W., 233 Cal. App. 3rd at 1422. A juvenile court has reason to believe a child is Indian if it is so informed by any party to the case, an Indian tribe, Indian organization, or public or private agency. BIA Guidelines, 44 Fed. Reg. 67,584-95; In re Dependency of Colnar, 52 Wn. App. 37, 40, 757 P.2d 534 (1988). When the juvenile court receives such information, no further proceedings can be held until at least 10 days after receipt by the tribe or Secretary of the Interior of the notice required by 25 U.S.C. § 1912(a).

Social worker Chris Wilkin testified that the Department had contacted the Choctaw, Cherokee, and, he “believed” the Chippewa Tribe in 2005. He said that none of the tribes expressed any interest in intervening. There are two problems with reliance on that testimony. First, Wilkin did not appear certain that the Chippewa were contacted, and there is no other indication that they were. The Individual Services and Safety Plans (ISSPs) stated that the Choctaw and Cherokee Tribes had been contacted, but did not mention the Chippewa Tribe. The State has the burden of proving notice. Dependency of E.S., 92 Wn. App. 762, 771, 964 P.2d 404 (1998). It has not satisfied that burden See Dependency of E.S, 92 Wn. App. at 773.[5]

Second, even if the Chippewa Tribe was contacted in 2005 and declined to intervene, the Tribe should have been contacted again before the court proceeded with the termination trial. For the purposes of notice and appearance requirements, a termination hearing is separate from the dependency proceedings Dependency of E.S., 92 Wn. App. at 772. A tribe can always change its mind about a child’s status and the desirability of intervention. That was a real possibility here. The Chippewa Tribe should have been notified of the pendency of termination proceedings. See Dependency of E.S., 92 Wn. App. at 772-73; In re the Welfare of M.S.S., 86 Wn. App. 127, 136, 936 P.2d 36 (1997).

We remand this case for notice to the Chippewa Tribe. If the Tribe declines to intervene, the termination order will stand. If the Tribe seeks to intervene, the order will be vacated and a new hearing required.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.


[1] A commissioner of this court considered this matter pursuant to RAP 18.13, and referred it to a panel of judges.
[2] A.P.-G. was born on January 6, 2002.
[3] The mother used the pronoun “we,” presumably referring to herself and the children.
[4] While these guidelines do not have “binding legislative effect,” this court has followed them. See In re Dependency of T.L.G., 126 Wn. App. 181, 108 P.3d 156 (2005).
[5] BIA guidelines require that originals or copies of each notice sent be filed with the court. 44 Fed. Reg. at 67,588. The State should have made those documents a part of the termination hearing record.

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