          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Guardianship of      )
                                          )      DIVISION ONE
S.H.-R.,                                  )
DOB: 11/06/09,                            )      No. 75025-9-1
                                          )
ANJULI J. HAMMOND,                        )      UNPUBLISHED OPINION
                                          )
                         Appellant,       )
                                          )
                    v.                    )
                                          )
DEPARTMENT OF SOCIAL AND                  )
HEALTH SERVICES,                          )
                                          )
                         Respondent.      )      FILED: March 27, 2017
                                          )

          DWYER, J. — Anjuli Hammond appeals from a trial court's order granting

the Department of Social and Health Services' petition to establish a

guardianship for Hammond's six-year-old son, S.H.-R. Hammond contends that

the trial court erred by finding that the Department had made active but

unsuccessful efforts to provide remedial services aimed at preventing the

breakup of the family. Hammond also contends that the trial court's other

findings of fact are not supported by substantial evidence. Finding no error, we

affirm.
No.75025-9-1/2




       Hammond was between four- and six-years-old, homeless, and

malnourished when her two mothers adopted her from India. Since her adoption,

Hammond has suffered with emotional and behavioral difficulties, developmental

delays, hearing and vision problems, and substance abuse. S.H.-R.'s father,

Brenton Rosario, was only fleetingly involved in S.H.-R.'s life, has a history of

homelessness, sexual abuse, drug and alcohol abuse, and has an adult and

juvenile criminal record. Rosario is not a party to this litigation.

       S.H.-R. was born prematurely in 2009 and the Department received an at-

risk referral from the hospital following his birth. The Department contacted

Hammond, who agreed to accept in-home services and the assistance of a

public health nurse, as well as to resume the counseling and medication

management that she had discontinued during her pregnancy. Two years later,

the Department received a neglect referral stating that Hammond's home was

dirty and presented a safety hazard to her son because there were cleaning

products, knives, and coins within S.H.-R.'s reach. The Department offered

Hammond in-home services to address these issues but Hammond refused. The

Department later closed this inquiry when it determined that the home's

cleanliness had improved.

       In February of 2012, Bellingham Police received an emergency telephone

call reporting that Hammond was seen in public screaming at S.H.-R. and forcing

him to walk. The responding officer observed Hammond dragging S.H.-R. and

shouting at him. Hammond was uncooperative with the responding officer but


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No.75025-9-1/3


was able to calm down after 10 minutes and return home. The following month,

Hammond was detained by police and taken to a hospital due to agitated

psychotic behavior. The police observed Hammond speaking unintelligibly,

running around her parking lot barefoot, pounding on car windows, banging her

head on the floor, and forcing her crying son to lay down on the floor. The

Department received a referral and determined that "the child is in imminent risk

which requires his removal from the parent's home."

      Hammond was released into the custody of her parents. A Department

social worker contacted her the following day. The social worker observed that

Hammond was unstable, angry, abusive, and unable to focus. The social worker

observed Hammond shouting, banging her hand on the table, throwing small

objects, and expressing frustration at being a single parent and being unable to

cope with her daily life. Hammond agreed to allow her parents to continue caring

for S.H.-R. The Department subsequently filed a dependency petition.

      Hammond has struggled with domestic violence for years, both as a victim

and as a perpetrator. Hammond has been involved in several physical

confrontations with her boyfriend, David Maier, which culminated in a court order

prohibiting Hammond from contacting Maier. Hammond has violated this no-

contact order on at least two occasions. Hammond briefly stayed at a domestic

violence shelter but was forced to leave after it was discovered that she

voluntarily remained in contact with Maier during her stay.

      In June of 2012, Hammond agreed to a court order establishing

dependency over S.H.-R. and maintaining him in his grandmothers' care. The


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No.75025-9-1/4


order stated that the Department had engaged in active efforts by actively

working with the parents to "engage them in remedial services and rehabilitative

programs to prevent the breakup of the Indian family. .. but those efforts have

been unsuccessful." The order required that Hammond obtain psychological

and drug and alcohol assessments, submit to random drug screenings, complete

an anger management assessment, follow through with mental health counseling

and medication management, and maintain a safe, stable, and sober house free

of domestic violence and criminal activity, among other measures.

       Hammond had limited success in complying with the court's dependency

order. At the first dependency review hearing, the court found that Hammond

had been noncompliant with all but one of the ordered services. At the

permanency planning hearing, the court found that Hammond was partially

cornpliant with some of the measures ordered by the court—completing her drug

and alcohol evaluation and attending one full day of a psychological evaluation—

but was noncompliant with all other measures.

       At the second dependency review hearing, the court found that Hammond

was compliant with some measures, but only partially compliant or noncompliant

with other measures. The court determined that Hammond successfully followed

through with all recommendations from her substance evaluation, completed a

domestic violence assessment,followed through with recommendations from the

psychological assessment, and completed a parenting evaluation. However, the




       1 S.H.-R.'s father, Rosario, is a member of the Lummi Nation and the Lummi Nation
recognizes S.H.-R. as a member.
                                            -4-
No.75025-9-1/5


court also found that Hammond failed to appear for 11 separate drug screenings,

failed to maintain a sober lifestyle, failed to maintain safe and stable housing,

violated her no-contact order with Maier, and failed to maintain regular contact

with her social worker.

       In 2013, the Department filed a petition to establish a guardianship with

S.H.-R.'s maternal grandmothers as his guardians. The petition was granted

following a trial. Hammond then moved for reconsideration, asserting that the

Department had failed to engage in "active efforts" to prevent the breakup of the

Indian family. The motion for reconsideration was denied. Hammond timely

appealed.

                                          II

       We review a trial court's factual findings in support of an order establishing

a guardianship for substantial evidence. In re Welfare of A.W., 182 Wn.2d 689,

711, 344 P.3d 1186 (2015). Substantial evidence exists so long as a rational

trier of fact could find that the necessary facts were proved by a preponderance

of the evidence. A.W., 182 Wn.2d at 711. Because the trial court is in the best

position to hear testimony and observe witnesses, we do not decide the

credibility of witnesses or weigh the evidence. In re Dependency of A.V.D., 62

Wn. App. 562, 568, 815 P.2d 277(1991).

       A guardianship may be established when the court finds by a

preponderance of the evidence that it is in the child's best interest to establish a

guardianship and

           (i) The child has been found to be a dependent child under
       RCW 13.34.030;

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No.75025-9-1/6


               (ii) A dispositional order has been entered pursuant to RCW
       13.34.130;
               (iii) At the time of the hearing on the guardianship petition,
       the child has or will have been removed from the custody of the
       parent for at least six consecutive months following a finding of
       dependency under RCW 13.34.030;
               (iv) The services ordered under RCW 13.34.130 and
       13.34.136 have been offered or provided and all necessary
       services, reasonably available, capable of correcting the parental
       deficiencies within the foreseeable future have been offered or
       provided;
               (v) There is little likelihood that conditions will be remedied
       so that the child can be returned to the parent in the near future;
       and
               (vi) The proposed guardian has signed a statement
       acknowledging the guardian's rights and responsibilities toward the
       child and affirming the guardian's understanding and acceptance
       that the guardianship is a commitment to provide care for the child
       until the child reaches age eighteen.

RCW 13.36.040(2)(c).

                                           A

        Hammond first contends that the trial court erred by finding that the

Department had engaged in active efforts to offer her remedial services and by

finding that those efforts were unsuccessful. This is so, she asserts, because the

trial court failed to hold the Department to the correct legal standard. We

disagree.

        S.H.-R. is a member of the Lummi Nation and is an Indian child as defined

by the Indian Child Welfare Act, 25 U.S.C.§ 1901 (ICWA), and the Washington

State Indian Child Welfare Act, chapter 13.38 RCW (WICWA).2 In addition to the

statutory factors required to establish a guardianship pursuant to RCW



        2 The fact that Hammond herself is not an Indian as defined by ICWA or WICWA is
immaterial to a finding that those acts apply. In re Adoption of T.A.W., 186 Wn.2d 828, 847, 383
P.3d 492(2016).
                                               -6-
No.75025-9-1/7


13.36.040(2), the removal of an Indian child requires that the Department show

by clear, cogent, and convincing evidence 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); RCW 13.38.130; see, e.g., In re Dependency of A.M., 106

Wn. App. 123, 130-31, 22 P.3d 828 (2001).

        ICWA does not define "active efforts." However, WICWA provides that

active efforts are demonstrated through a showing that the Department "actively

worked with the parent, parents, or Indian custodian to engage them in remedial

services and rehabilitation programs to prevent the breakup of the family beyond

simply providing referrals to such services." RCW 13.38.040(1)(a)(i)-(iii).3 ICWA

and WICWA are read as "coextensive[,] barring specific differences in their

statutory language." In re Adoption of T.A.W., 186 Wn.2d 828, 844, 383 P.3d

492(2016).




         3 Although no federal regulation defined "active efforts" at the time of trial, the Bureau of
Indian Affairs has since defined the term to mean:
        [A]ffirmative, active, thorough, and timely efforts intended primarily to maintain or
         reunite an Indian child with his or her family. Where an agency is involved in the
         child-custody proceeding, active efforts must involve assisting the parent or
         parents or Indian custodian through the steps of a case plan and with accessing
         or developing the resources necessary to satisfy the case plan. To the maximum
         extent possible, active efforts should be provided in a manner consistent with the
         prevailing social and cultural conditions and way of life of the Indian child's Tribe
         and should be conducted in partnership with the Indian child and the Indian
         child's parents, extended family members, Indian custodians, and Tribe. Active
         efforts are to be tailored to the facts and circumstances of the case.
Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778(June 14, 2016)(to be
codified at 25 C.F.R. pt. 23, subpt. l).
         The record shows that this definition—which was proposed at the time but not
effective—was not brought to the trial court's attention until the posttrial motion for
reconsideration. We do not further consider it in resolving the issues presented herein.

                                                 -7-
No.75025-9-1/8


       Hammond contends that the active efforts requirement found in ICWA and

WICWA imposes a higher standard on the Department than applies in non-ICWA

matters. To support this contention, Hammond cites T.A.W.

       In T.A.W., our Supreme Court noted that "[w]hen an Indian child is at

issue, ICWA and WICWA impose more exacting requirements than a typical

termination proceeding." 186 Wn.2d at 841. Addressing the "active efforts"

requirement specifically, the court stated that"ICWA.. . does not define 'active

efforts,' nor does it indicate the requisite amount of services required before the

termination of parental rights may occur." T.A.W., 186 Wn.2d at 842.

       Contrary to Hammond's assertion, T.A.W. does not stand for the

proposition that "active efforts" constitute a more exacting requirement. Rather,

in addressing the "higher burden of proof" contemplated by ICWA, the court

pointed to the requirement that courts make a determination that the continued

custody of the child by the parent is likely to result in serious emotional or

physical damage to the child—a determination not required in non-ICWA matters.

25 U.S.C.§ 1912(f); T.A.W., 186 Wn.2d at 842.

       The Supreme Court's decision in T.A.W., as it relates to the active efforts

requirement specifically, was limited to the determination of whether private

parties were required to prove that active efforts were made. In answering in the

affirmative, the court did not characterize the active efforts requirement itself as a

heightened standard. T.A.W., 186 Wn.2d at 853-54. Rather, the higher standard

found in ICWA relates to who must prove active efforts—"Any party"—not what

those efforts must involve. T.A.W. 186 Wn.2d at 842.


                                          8
No.75025-9-1/9


       In any event, the trial court herein demonstrated its understanding of the

active efforts requirement and substantial evidence supports the trial court's

finding that the Department did engage in active efforts to offer remedial and

rehabilitative services and that those efforts were unsuccessful.

       The trial court heard testimony regarding the Department's efforts from

Tony Loya, the Department's primary caseworker assigned to S.H.-R. Loya

testified that he worked with Hammond to identify and correct her parental

deficiencies. Loya testified that the Department had completed a psychological

evaluation of Hammond and had recommended related services, but that

Hammond largely failed to comply with or complete most of the services. Loya

testified that, although Hammond always expressed a willingness to do whatever

was needed to get her son back, she could not establish any sort of consistency

with the most basic of services that the Department requested.

       Loya testified that the Department had concerns that Hammond was

abusing drugs and alcohol and had asked her to complete a substance abuse

evaluation. Hammond completed the evaluation and it was determined that she

was not in need of further substance abuse treatment. Loya testified that the

Department referred Hammond for a domestic violence evaluation, both for

perpetrating domestic violence and for being a victim of domestic violence. The

Department requested that Hammond remain in mental health therapy after her

evaluation.

       Loya testified that the Department experienced great difficulty in working

with Hammond between 2012 and 2013. Loya testified that Hammond was


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No.75025-9-I/10


noncompliant with requests by supervisors during visits with her son and that she

largely refused to participate in drug screenings, making it impossible for the

Department to establish long-term sobriety.4 Loya testified that he met with

Hammond on two or three occasions to discuss the services requested by the

Department and that Hammond brought supportive personnel from Northwest

Youth Services and the domestic violence shelter with her to these meetings.

       Loya also testified to his opinion regarding Hammond's current ability to

provide a safe and sober house for her son. Loya testified that Hammond has

adequately addressed her substance abuse. Loya also testified that Hammond

has addressed concerns about domestic violence, but stated that Hammond is

not able to make proper boundary judgements and has a pattern of domestic

violence. Loya testified that he did not believe that there were any additional

services that the Department could have offered to Hammond that would have

helped her to be in a position to safely and capably parent her son. Loya testified

that he believed that placing S.H.-R. back into Hammond's care would present a

risk of harm to S.H.-R. and that a guardianship was in S.H.-R.'s best interest.

       The trial court also heard testimony from Jesse Charles, the Lummi

Nation's caseworker assigned to S.H.-R.'s case. Charles testified that, upon

reviewing the Tribe's records and files regarding S.H.-R., it was his opinion that

the Department had actively worked with Hammond to engage her in remedial

services and rehabilitation programs. Charles testified that he believed that the



       4 The Department provided Hammond with a telephone number to call every day to
check on whether she had been chosen for a drug screening that day. Hammond failed to
appear for such screenings 11 times.
                                          -10-
No.75025-9-I/11


Department had actively worked with Hammond to prevent the breakup of the

family and that, although there had been progress in the case, Hammond's

progress was insufficient to allow the safe return of S.H.-R. Charles testified that

he did not believe that there was a likelihood that conditions would be remedied

so that S.H.-R. could return to Hammond's care in the near future. Finally,

Charles testified that he believed that it was in S.H.-R.'s best interest to be

placed in his grandmothers' care.

       The trial court heard additional testimony from Evan Freedman, a forensic

psychologist who evaluated Hammond once in 2012, again in 2013, and again in

2015. Freedman testified that his written reports stated that Hammond's

prognosis for her capacity to care for S.H.-R. improved from poor to fair over that

time period and that Hammond's amenability to benefit from services was

upgraded from fair to good. However, Freedman testified that his evaluation of

Hammond was predicated in part on her claim that she was not affiliating with

any romantic partners. Freedman testified that, upon learning that Hammond

was pregnant and had been having contact with Maier, he had concerns about

Hammond's capacity to simultaneously care for both an infant and S.H.-R.

Freedman also testified that Hammond's association with someone who has a

history of criminal behavior and substance abuse was a significant concern and

that Hammond's affiliations with romantic partners has historically been a trigger

for decompensation.

       Upon considering the wealth of testimony and evidence presented

throughout the trial, the trial court granted the guardianship petition. On
No.75025-9-I/12


reconsideration, Hammond argued that the Department had failed to prove that it

had used active efforts to prevent the breakup of the Indian family and that those

efforts were unsuccessful. The court responded,

              I would note in looking back through my notes that the
      department did actively engage with her. They provided services of
      Ms. Glasser, DBT [Dialectical behavior therapy]. They supported
      her visits with and the work with the therapist, got the psychological
      evaluation to support that, provided drug and alcohol assistance,
      provided visits, and did domestic violence services, all of those
      were things that the department actively tried to make available or
      did make available, and that Ms. Hammond engaged in from time
      to time.

      . . . I do believe that the State did make active efforts. They may
      not have been the efforts that Ms. Hammond, perhaps, would liked
      them to have done. Maybe she would have liked them to have
      done more, and I think they were active efforts. ... They did
      actively involve her.
               For a period of time, they worked with this young woman and
      tried very hard, I believe, to provide the services to her, and she
      ultimately took advantage of many of those services and made
      progress as a result of many of those services, but didn't make
      sufficient progress, and I think that's really what this case ultimately
      came down to.

      Hammond asked the court to decide whether active efforts in the context

of an ICWA case are different from the reasonable efforts required in a non-

ICWA case. The court responded,

                I'm not sure that I would go so far as to say that active efforts
      are necessarily different in quantity and quality from reasonable
      efforts. I would say that active efforts are efforts that involve — I
      hate to define with the same word, but some sort of activity. The
      Department needs to be doing something. They need to be taking
      steps to make services available, to provide those services, and in
      fact, they did in this case. That's an active effort in my mind, and
      without some further definition or other case law that says that it
      requires more than that, I think it just means they have to do
      something. . . .
      . . . I think they did much, and so I don't think I could say it is
      inactive, but I'm not going to make a ruling as a matter of law that I

                                        - 12 -
No.75025-9-I/13


       think that active efforts and reasonable efforts are different. I think
       that's not for this Court to decide today.
       On appeal, Hammond raises two concerns to buttress her contention that

the Department's efforts were not active. She first asserts that the Department's

efforts were not active because the Department did not work with Maier to

address its concerns about S.H.-R.'s safety in Maier's presence. But the

Department is not obligated to provide services to Maier—who is not a member

of the Indian family and who is prohibited by court order from having contact

with Hammond.

       Moreover, the record establishes that the Department provided services

to Hammond to address its concerns regarding Maier—specifically, domestic

violence counseling. The record establishes that the Department referred

Hammond to domestic violence treatment, requested that she remain in therapy,

and met with support personnel from the domestic violence shelter to discuss

services. Throughout this process, Hammond lied to the Department and her

service providers about having continued contact with Maier and she was

ejected from her domestic violence shelter when it was discovered that she was

meeting with Maier on a daily basis. Although Hammond asserts that the

Department should have offered more services to address this concern, she

does not explain what other services the Department could have possibly

offered in this situation. "IA] parent's unwillingness or inability to make use of

the services provided excuses the State from offering extra services that might

have been helpful." A.M., 106 Wn. App. at 136 (internal quotation marks




                                        - 13-
No.75025-9-I/14


omitted)(quoting In re Dependency of P.D., 58 Wn. App. 18, 26, 792 P.2d 159

(1990)).

       Hammond also contends that the Department's efforts were not active

because the Department did not expand Hammond's visitation schedule. But

Hammond concedes that visitation is not a remedial service. In re Dependency

of T.H., 139 Wn. App. 784, 791-92, 162 P.3d 1141 (2007). In any event, the

record shows that Hammond could not manage to adhere to her visitation

schedule as it was—failing to show up to scheduled visitation appointments and

failing to take direction from visitation supervisors. Even were visitation a

remedial service,"ICWA does not require the State to continue making active

efforts to remedy parental deficiencies at the expense of physical or emotional

damage to the child." A.M., 106 Wn. App. at 136.

       The trial court demonstrated its understanding that the Department had

the burden of showing that it engaged in active efforts to prevent the breakup of

the family. The trial court entertained evidence and heard testimony supporting a

finding that the Department actively worked with Hammond to provide her with

services that went beyond mere referrals. The record amply supports the trial

court's finding that Hammond took some advantage of these services but was

often unwilling or unable to make the sort of progress required to allow for the

safe return of her son. No trial court error is established.



       Hammond next contends that the Department failed to prove by clear and

convincing evidence that the continued custody of S.H.-R. by Hammond would


                                        - 14 -
No.75025-9-I/15


likely result in serious emotional or physical damage to the child. This is so, she

asserts, because Charles, the Lummi Nation's caseworker assigned to this

matter, was not a qualified expert witness.

       Pursuant to 25 U.S.C.§ 1912(e), a guardianship cannot be established for

an Indian child "in the absence of a determination, supported by clear and

convincing evidence, including testimony of qualified expert witnesses, that the

continued custody of the child by the parent or Indian custodian is likely to result

in serious emotional or physical damage to the child." Experts are generally

qualified through "special knowledge of and sensitivity to Indian culture." In re

Interest of Mahaney, 146 Wn.2d 878, 897, 51 P.3d 776(2002)(quoting State ex

rel. Juvenile Dep't of Multnomah County v. Cooke, 88 Or. App. 176, 744 P.2d

596, 597 (1987)).

       Hammond did not object to Charles providing opinion testimony as a

qualified expert witness at trial. A party's failure to object at trial waives the issue

on appeal. ER 103(a); RAP 2.5(a). Thus, Hammond waived any objection to

Charles's testimony.

       The trial court's finding is amply supported by the record. Charles testified

that it was in S.H.-R.'s best interest to be placed in a guardianship. He explained

the Tribe's concerns:

       Again, it's just the mother's ability. We question the fact that, you
       know, again, she is pregnant by Mr. Maier who she has a no
       contact order with. It is concerning to us with past history. That
       concerns us because Mr. Maier could presumably pose a threat to
       [S.H.-R.], and so that alone I think is enough.. . .




                                         -15-
No.75025-9-I/16


As discussed herein, the trial court also heard testimony from several other

individuals about the emotional and physical threat that Hammond's ongoing

relationship posed to S.H.-R., as well as testimony that Hammond was unable to

appreciate the threat that the relationship posed to her son. The trial court did

not err.



       Finally, Hammond contends that substantial evidence does not support

the trial court's finding that there was little likelihood that S.H.-R. could be

returned to Hammond's care in the near future.

       To establish a guardianship, the Department must show that "[t]here is

little likelihood that conditions will be remedied so that the child can be returned

to the parent in the near future." RCW 13.36.040(2)(c)(v). "The focus of this

factor is 'whether parental deficiencies have been corrected." In re Dependency

of T.R., 108 Wn. App. 149, 165, 29 P.3d 1275(2001)(quoting In re Dependency

of K.R., 128 Wn.2d 129, 144, 904 P.2d 1132(1995)). What constitutes the near

future depends on the age of the child and the circumstances of the child's

placement. In re Dependency of T.L.G., 126 Wn. App. 181, 204, 108 P.3d 156

(2005).

       Here, the trial court found that S.H.-R. had been dependent for 43 months.

The trial court found that, over those 43 months, Hammond had made insufficient

progress toward being able to appropriately care for S.H.-R. on a full-time basis.

The trial court found that the strongest possible commitment is needed from

S.H.-R.'s caretakers to foster his growth and development and that continuation


                                         - 16 -
           No.75025-9-I/17


           of the legal parent-child relationship clearly diminishes his prospects for early

           integration into a stable and permanent home.

                    The trial court's determination is supported by substantial evidence.

           Although the trial court heard testimony indicating that Hammond had made

           progress in adhering to services and maintaining a stable home, the court also

           heard testimony regarding Hammond's routine visits with Maier in violation of a

           no-contact order. The trial court heard testimony that Hammond lied to the

           Department and her service providers for years regarding her ongoing

           relationship with Maier, as well as testimony that Hammond was unable to

           appreciate the risk that Maier posed to herself and to her son. Finally, the trial

           court heard testimony from several individuals that it was unlikely that S.H.-R.

           could be safely returned to Hammond's care in the near future.

                    The trial court's determination was supported by substantial evidence.

           Accordingly, there was no error.

                    Affirmed.



           We concur:
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                                                    - 17 -
