              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

  In the Matter of the Dependency of
  F.Y.O. (dob: 03/02/2015),                             DIVISION ONE

                                  Minor Child,          No. 79941-0-I

 STATE OF WASHINGTON,

                                  Respondent,           UNPUBLISHED OPINION

                         V.


 MICHAEL WILLIAM FOSTER JR.,

                                  Appellant.            FILED: March 2, 2020

          DWYER, J.     —     Following a four-year dependency and a five-day trial, the

court terminated Michael Foster’s parental rights to his child. On appeal, Foster

contends the Department of Children, Youth, and Families (Department)1 failed

to carry its burden to prove several statutory prerequisites to terminafion. He

also contends the Department failed to meet its additional burden under the

federal and state Indian Child Welfare Acts, ICWA2 and WICWA.3 However,

because unchallenged findings and substantial evidence support termination, we

affirm.



          1   on July 1, 2018, the newly created Department of Children, Youth, and Families
(DCYF) took over child welfare duties that were formerly the responsibility of the Department of
Social and Health Services (DSHS). RCW 43.216.906. Thus, in this opinion, the “Department”
means DSHS before July 1,2018, and DCYF after July 1,2018.
        2 Indian Child Welfare Act, 25 U.S.C. § 1901.
        ~ Washington State Indian Child Welfare Act, chapter 13.38 RCW.
 No. 79941-0-1/2



         F.Y.O., an Indian child,4 was born in March 2015 and will be five years old

as of March 2020. F.Y.O. has lived his entire life in the care of a maternal aunt.

He has never lived with his parents.

         In April 2015, F.Y.O. was found dependent as to his mother.5 The identity

of F.Y.O.’s father was unknown at that time.

         In July 2015, F.Y.O. was found dependent as to the unknown father. The

court entered an order of dependency and a dispositional order requiring the

unknown father to come forward, contact the Department social worker for

appropriate referrals, and establish paternity. Michael Foster established

paternity in December 2015.6

         In February 2016, after a review hearing, the court ordered Foster to

participate in a chemical dependency evaluation, a domestic violence

assessment, an age appropriate parenting class, a psychological evaluation with

a parenting component, and random urinalysis testing. The court’s order also

required Foster to obtain safe, stable, and drug/alcohol free housing, and

maintain regular visitation twice per week with F.Y.O.

        In July 2018, the Department petitioned to terminate Foster’s parental

rights. The Department alleged, in pertinent part, that all ordered and necessary

services had been offered or provided and there was little likelihood that


          ~ F.Y.O. qualifies as an “Indian child” under lcWA, 25 u.s.c. § 1903(4), because he is
eligible for enrollment as a member in the Fort Belknap Indian community.
          ~ The mother is not a party on appeal.
          6 Foster is also the father of S.Y.O., born in March 2016. He voluntarily terminated his

rights to S.Y.O. Those rights are not at issue here.



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 No. 79941-0-1/3

 conditions would be remedied such that F.Y.O. could be returned to Foster within

the near future. It also alleged that active, but unsuccessful, efforts were made

to provide remedial services and to prevent the breakup of the Indian family and

that placing F.Y.O. in Foster’s custody would likely result in serious emotional or

physical harm to the child.

        The termination trial took place over five days in April 2019. Foster did not

attend the first three days of trial.7 At the hearing, the court considered the

testimony of Tim Cole (the Department social worker assigned to Foster) Louise

Doney (a Fort Belknap Tribal representative), Dr. Dana Harmon (a psychologist),

Minu Ranna-Stewart (a clinical supervisor at Harborview Center for Sexual

Assault and Traumatic Stress), Joey Johnson (an intervention treatment

supervisor at Evergreen Recovery Centers), Elisabeth Yaroschuk (the court-

appointed special advocate (CASA) assigned to F.Y.O.), and Foster, and

admitted 46 exhibits into evidence.8

        On May 3, 2019, the trial court terminated Foster’s parental rights. After

entering numerous factual findings, the court concluded that the Department had

established the necessary statutory factors by clear, cogent, and convincing

evidence and that termination was in F.Y.O.’s best interests. It also concluded

that the Department had proved, beyond a reasonable doubt, that placing F.Y.O.




        ~ When he finally appeared on the fourth day of trial, Foster blamed his absence on being
sick and “trying to sleep.” Foster did not notify anyone about his illness, he claims, because he
“wasn’t able to charge [his] phone.”
        8 The court also considered the testimony of two additional witnesses, both of whom were

service providers for S.Y.O.


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 No. 79941-0-1/4

in Foster’s custody would likely result in serious emotional or physical harm to

the child.

         Foster appeals. We discuss additional facts in the relevant sections

below.



         To terminate parental rights, the Department must satisfy a two-pronged

test. In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011).

First, the Department must prove the six termination factors enumerated in RCW

13.34.180(1) by clear, cogent, and convincing evidence.9 K.N.J., 171 Wn.2d at

576-77. Once the Department establishes these statutory factors, the trial court

must then make a finding of current unfitness before parental rights can be

terminated. In re Parental Ricihts to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75

(2016). If this burden is satisfied, termination may be ordered if the Department

establishes, by a preponderance of the evidence, that it is in the best interests of

the child. RCW 13.34.190(1)(b); K.N.J., 171 Wn.2d at 577.

         When termination proceedings involve an Indian child, as is the case here,

ICWA and WICWA require the trial court to make two additional determinations.

First, the court must find by clear, cogent, and convincing evidence that the

Department made “active efforts” to help the parent remedy his or her parental

deficiencies. 25 U.S.C.      § 1912(d); RCW 13.38.130(1); In re Delendency of
A.M., lO6Wn. App. 123, 130-31, 135,22 P.3d 828 (2001). Second, the court


        ~ “Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown
by the evidence to be ‘highly probable.” In re Dependency of KR., 128 Wn.2d 129, 141, 904
P.2d 1132 (1995) (internal quotation marks omitted) (quoting In re Sego, 82Wn.2d 736, 739, 513
P.2d 831 (1973)).


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 must find that the Department proved, beyond a reasonable doubt, that the

 parent’s continued custody of the child is likely to result in “serious emotional or

 physical damage to the child.” 25 U.S.C.             § 1912(f); RCW 13.38.130(3).
          On review, we will uphold the trial court’s factual findings if they are

supported by substantial evidence.10 In re Dejjendency of RD., 58 Wn. App. 18,

25, 792 P.2d 159 (1990). unchallenged findings are verities on appeal. In re

DerendencyofM.S.R., 174 Wn.2d 1,9,271 P.3d 234 (2012). Wedefertothe

trial court on issues of conflicting testimony, credibility of the witnesses, and the

weight or persuasiveness of the evidence. In re Welfare of A.W., 182 Wn.2d

‘689, 711, 344 P.3d 1186 (2015).

                                                Ill

        Foster contends that the “Department failed to establish nearly every”

statutory prerequisite for termination. We disagree.

                                                A

        Foster first argues that because the Department did not offer services to

help him avoid future contact with F.Y.O.’s mother, it failed to offer all necessary

services capable of correcting parental deficiencies.

        In order to terminate parental rights, the Department has a statutory

obligation to provide all services that the court ordered,11 as well as “all

necessary services, reasonably available, capable of correcting the parental

deficiencies within the foreseeable future.” RCW 13.34.180(1)(d). “Necessary


        10 “Substantial evidence” means “evidence in sufficient quantity to persuade a fair

minded, rational person of the truth of the declared premise.” In re Welfare of TB., 150 Wn. App.
599, 607, 209 P.3d 497 (2009).
        ~ Foster does not dispute that the Department offered or provided all ordered services.


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 No. 79941-0-116

 services” are those services “needed to address a condition that precludes

 reunification of the parent and child.” In re Dependency of A.M.M., 182 Wn. App.

776, 793, 332 P.3d 500 (2014). The Department must tailor the services it offers

to meet each individual parent’s needs. In re Welfare of S.J., 162 Wn. App. 873,

881, 256 P.3d 470 (2011).

       Here, the trial court found the Department had offered or provided Foster

all necessary services. Foster challenges this determination, but it is supported

by the following unchallenged findings, which are now verities:

       [2.12(b)(iv)] Parties agreed at a shared planning meeting that the
       father needed an additional service after he absconded with the
       child [F.Y.O.] for four days. The service identified was CBT
       [cognitive behavioral therapy] treatment provided by Minu Ranna
       Stewart at Harborview Center for Trauma and Sexual Assault.

       [2.12(d)(vi)] Minu Ranna-Stewart testified she worked with the
       father for a short period specifically on identifying ways to address
       the father’s awareness of the safety risk posed by the mother and
       his role in keeping his children safe.

       Substantial evidence also supports the trial court’s finding. Foster’s

cognitive behavioral therapy service was tailored to raise Foster’s awareness “of

potential risks and safety concerns of the children being around their mom” and

to help him “evaluate or understand what his role is in keeping the children safe.”

Nothing in the record supports Foster’s assertion that the Department failed to

offer a service that would help him to avoid future contact with F.Y.O.’s mother.

       Foster also argues that, although the Department “provided some direct

financial assistance, [it] did not provide any services actually designed to help

[him] achieve long-term stability.” He claims that the Department should have

provided him with life coaching, budgeting, and motivation services. However,


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 No. 79941-0-1/7

none of these services were “identified by any service providers who worked

extensively” with Foster as necessary, nor is there evidence in the record to

show that Foster requested any such services prior to the termination hearing. A

parent’s belated request for a service is not sufficient to convert that service to a

necessary one.

                                          B

        Next, Foster contends that the termination order must be reversed

because the Department failed to prove that he was not capable of parenting

F.Y.O. in the “near future.”

        In termination proceedings, the Department must prove that there is “little

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

parent in the nearfuture.” RCW 13.34.180(1)(e). The focus of this factor is

whether parental deficiencies have been corrected. In re Dejendency of K.R.,

128 Wn.2d 129, 144, 904 P.2d 1132 (1995). “A determination of what constitutes

the near future depends on the age of the child and the circumstances of the

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

(2005) (one year not “foreseeable” or “near future” for six-year-old child who had

never lived with the mother and the mother had been receiving services for six

years); In re Dependency ofT.R., 108 Wn. App. 149, 166, 29 P.3d 1275 (2001)

(one year was beyond the near future for a six-year-old who had been in foster

care her entire life).




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No. 79941-0-1/8

       In this case, the trial court found the Department satisfied its burden under

RCW 13.34.180(1)(e). Ample evidence supports this determination, including the

following unchallenged findings:

      [2.12(e)(i)] The court identified two distinct time periods in the
      case. The first from entry of orders regarding services until the
      date in August 2017 when Mr. Foster absconded with [F.Y.O.]
      During that time, the father completed numerous services and
      participated in visitation regularly resulting in expanded visitation,
      and the intention at that time overwhelmingly was to return [F.Y.O.]
      home to the father. The father was developing a bond and working
      toward stability and had housing during this period.

       [2.12(e)(ii)] The second time period followed the father’s
       absconding with the child [F.Y.O.]. In this time period he completed
       a relapse prevention plan, completed [domestic violence] treatment
       after extensive delays, and participated in services with Minu
       Ranna-Stewart regarding the safety of his contact with [F.Y.O.’s
       mother]. Visitation was reset to twice per week monitored. During
      this time he was only visiting a maximum of once a week and his
      explanation that he was busy with services and work was not found
      credible because during the prior time period he actively
      participated in more services and still managed to increase
      visitation including visitation with both boys. The father missed
      visitation during this time. Once instance of a missed visit occurred
      near [F.Y.O.’s] fourth birthday where the father also failed to notify
      [social worker] Cole and the child was transported for the visit.
      Court orders also reflect the fact that things were not going as well
      for the father as they had been in the first 18 months.

      [2.12(e)(iii)] While the father made substantial progress in the first
      18 months, as a result of bad choices he simply has not been able
      to recover over the last 20 months with evidence of relapses, lost
      apartment, and inability to establish stability or to regularly maintain
      available visitation.

      [2.12(e)(iv)] The incident where the father kept [F.Y.O.] for four
      days in a hotel with the mother. was important because
                                         .   .




      a. He knew the mother was noncompliant with services and likely
      utilizing substances.




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No. 79941-0-l19

      b. A no contact order was in place and prior arrests demonstrated
      knowledge of the risk he was taking of getting arrested during the
      time he had the child [F.Y.O.] in his care.

      c. He and [the mother] have a volatile relationship and engaging
      with her while having [F.Y.O.] in his care raised risk of exposure of
      [F.Y.O.] to experiencing domestic violence.

      d. The father’s contact with [the mother] has also resulted in the
      loss of his apartment because the complex requested he leave due
      to the fights occurring between the father and [the mother].

      e. While the CPS investigation found no evidence of physical harm
      the situation put the child at substantial risk for the reasons outline
      above.

     f. It was clear from father’s testimony that he understands the risk
     of ongoing contact with [the mother] but continued to place [F.Y.O.]
     at risk choosing his desires over the best interest of [F.Y.O.] and
     therefore lacks the ability to protect. His behavior showed he
     prioritized his interests and those of [the mother] over those of
     [F.Y.O.].

     [2.12(e)(v)] Furthermore, after this incident the father maintained a
     relationship with [the mother]. He admitted contact in May of 2018
     and in January of 2019 but the Court suspects more contact
     because the father believed the mother’s fifth child could have been
     biologically his child. Evidence later showed that it was not his
     child.

     [2.12(e)(vi)] Minu Ranna Stewart [sic] explained that the father
     expressed a desire to facilitate contact with [the mother] and/or to
     co-parent with her. He did so disregarding the potential risk to
     [F.Y.O.]. The father himself recognized the danger of being with
     [the mother] because when he was with her he made poor choices.
     By having ongoing contact he prioritized his own interests and
     those of [the mother] above the interests of his child [F.Y.O.].

     [2.12(e)(vii)] The father admitted a recent relapse in March, 2019
     on alcohol, and the timing of his relapses have, in the past,
     correlated with his contact with [the mother]. The recent relapse
     occurred despite having attended relapse prevention showed
     ongoing risk to the child. The father admitted he had no current AA
     sponsor.




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 No. 79941-0-1110

         [2.12(e)(viii)J The father’s participation in domestic violence was
         not completed until April 2019. The father’s lack of attendance was
         the primary reason for delay in completion of this service.

         [2.12(e)(ix)] The father appears to have a sincere belief that he will
         be ready in 90 days to take care of the child and obviously loves
         [F.Y.O.J However, the evidence since the setback nearly twenty
         (20) months ago indicates that such a belief is unrealistic. The
         child’s near future is a matter of months not years and the child
         cannot continue to wait for Mr. Foster.

         Given these uncontested findings, it is clear that the Department

established there to be little likelihood that Foster could correct his deficiencies in

a future near enough to successfully and safely parent F.Y.O.

                                                   C

         Foster next argues that the Department failed to prove continuation of his

relationship with his son clearly diminished F.Y.O.’s prospects for early

integration into a stable and permanent home under RCW 13.34.180(1)(f). This

argument turns on Foster’s belief that he would be ready to parent F.Y.O. within

90 days of the termination hearing. Because we have already rejected Foster’s

readiness argument, we also reject his argument under RCW 13.34.180(1)(f).

                                                   D

        Next, Foster contends his arguments show that the Department did not

meet its burden to prove that he is an unfit parent.’2 But because none of his

arguments on appeal are persuasive, we disagree. There was ample evidence




        12 To establish current unfitness in a termination proceeding, the Department must prove
by clear, cogent, and convincing evidence that the parental deficiencies “prevent the parent from
providing the child with ‘basic nurture, health, or safety.” In re Welfare of A.B., 181 Wn. App. 45,
61, 323 P.3d 1062 (2014) (quoting RCW 13.34.020).


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 No. 79941-0-I/li

 presented to support the trial court’s determination that Foster is an unfit

 parent.13

                                                 E

         Foster also contends that the Department failed to prove that termination

 is in F.Y.O.’s best interests. “[TJhe goal of a dependency hearing is to determine

the welfare of the child and his [or her] best interests.” In re Welfare of Aschauer,

93 Wn.2d 689, 695, 611 P.2d 1245 (1980). In order to terminate a parent-child

relationship, the trial court must determine by a preponderance of the evidence

that termination is in the best interests of the child. RCW 13.34.190(1)(b). The

factors involved in determining the best interests of a child are not capable of

specification; each case must be decided on its own facts and circumstances.

Aschauer, 93 Wn.2d at 695. Therefore, we place a “very strong reliance on trial

court determinations of what course of action will be in the best interest of the

child.” In re Matter of Pawlinci, 101 Wn.2d 392, 401, 679 P.2d 916 (1984)

(quoting In re Welfare of Todd, 68 Wn.2d 587, 591, 414 P.2d 605 (1966)).

        Here, the court found termination of the parent-child relationship to be in

F.Y.O.’s best interests, explaining that:

        CASA and [social worker] Cole testified that adoption is in the
        child’s best interest and that permanence will help the child feel
        more secure and safe in his placement. The Court concludes that
        termination of parental interest is in the best interest of the child
        due to the father’s inability to remedy his parental deficiencies and
        his right for a safe and stable home.




         For example, Foster testified to living in seven different locations during the
        13

dependency period. At trial, he testified about renting a room at a shared housing location and
acknowledged that it was not an appropriate place for F.Y.O. to live.


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           The social worker testified that F.Y.O. had resided with his maternal aunt

for four years, was “extremely bonded” with the placement, and had “a very set

routine” and “consistency” in his life. The CASA testified, “[B]ased on the amount

of time that has passed and the amount of progress or lack of progress that has

been made, I would agree; I would encourage the Court to terminate parental

rights.”

           “Where a parent has been unable to rehabilitate over a lengthy

dependency period, a court is ‘fully justified’ in finding termination in the child’s

best interests rather than ‘leaving [the child] in the limbo of foster care for an

indefinite period” while the parent attempts rehabilitation. T.R., 108 Wn. App. at

167 (alteration in original) (quoting In re Dependency of A.W., 53 Wn. App. 22,

33, 765 P.2d 307 (1988)). If the health and safety of the child conflicts with the

rights of the parent, “the rights and safety of the child should prevail.” RCW

13.34.020. The record supports the court’s finding that termination is in F.Y.O.’s

best interests.

                                             lv
                                             A

       Foster contends the Department failed to exert active efforts to reunite him

with F.Y.O. Specifically, he argues the Department did not help him identify

housing resources, never involved the Tribe in coordinating services, and failed

to integrate culture into his case plan. Again, we disagree.

       Before a parent’s rights to an Indian child can be terminated, ICWA

requires that:



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 No. 79941-0-1/13

         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.

25 U.S.C.     §   1912(d); RCW 13.38.130(1) (WICWA’s identical requirement).

         Under WICWA, “active efforts” means “timely and diligent efforts to

provide or procure such services, including engaging the parent or parents or

Indian custodian in reasonably available and culturally appropriate preventive,

remedial, or rehabilitative services. This shall include those services offered by

tribes and Indian organizations whenever possible.” RCW 13.38.040(1)(a).

         Although ICWA does not define “active efforts,” the term is defined in

ICWA’s implementing federal regulations, 25 C.F.R.                      § 23.2.14   The federal

regulations provide examples of what may be included as active efforts,

including:

        (1) Conducting a comprehensive assessment of the circumstances
        of the Indian child’s family, with a focus on safe reunification as the
        most desirable goal;

        (2) Identifying appropriate services and helping the parents to
        overcome barriers, including actively assisting the parents in
        obtaining such services;

        (3) Identifying, notifying, and inviting representatives of the Indian
        child’s Tribe to participate in providing support and services to the
        Indian child’s family and in family team meetings, permanency
        planning, and resolution of placement issues;


         14 “Active efforts,” under the federal regulations, “means affirmative, 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.    .   Active efforts are to be tailored
                                                                    .   .

to the facts and circumstances of the case.” 25 c.F.R. § 23.2.


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 No. 79941-0-1/14

        (4) Conducting or causing to be conducted a diligent search for the
        Indian child’s extended family members, and contacting and
        consulting with extended family members to provide family
        structure and support for the Indian child and the Indian child’s
        parents;

        (5) Offering and employing all available and culturally appropriate
        family preservation strategies and facilitating the use of remedial
        and rehabilitative services provided by the child’s Tribe;

        (6) Taking steps to keep siblings together whenever possible;

       (7) Supporting regular visits with parents or Indian custodians in the
       most natural setting possible as well as trial home visits of the
       Indian child during any period of removal, consistent with the need
       to ensure the health, safety, and welfare of the child;

       (8) Identifying community resources including housing, financial,
       transportation, mental health, substance abuse, and peer support
       services and actively assisting the Indian child’s parents or, when
       appropriate, the child’s family, in utilizing and accessing those
       resources;

       (9) Monitoring progress and participation in services;

       (10) Considering alternative ways to address the needs of the
       Indian child’s parents and, where appropriate, the family, if the
       optimum services do not exist or are not available; [and]

       (11) Providing post-reunification services and monitoring.

25 C.F.R.   § 23.2.
       Here, the trial court found “the Department utilized active efforts to prevent

the break up of the Indian family by providing both financial assistance,

transportation assistance and substantial help and motivation to encourage the

father’s ongoing participation in services.”

       Several uncontested findings establish that the Department, indeed,

actively identified services for Foster, encouraged Foster to participate in




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 No. 79941-0-1/15

services, supported Foster’s regular visitation of F.Y.O., and provided Foster with

financial and transportation assistance.

       [2.12(d)(vii)] The father reports working off and on throughout this
       case. He admitted receiving help with rent, VISA cash cards as
       well as ORCA cards. The [social worker] also provided rides to the
       father.

       [2.12(d)(viii)] The Department held a shared planning meeting that
       the father attended to discuss services. The [social worker] also
       regularly met with the father and provided encouragement and
       addressed barriers to participation by providing financial support
       and transportation support. The father texted the social worker
       gratitude for his help restarting domestic violence services at a time
       when the father’s lack of participation threatened his ability to
       participate in ongoing treatment.

       Additionally, the social worker testified about providing services that

matched Foster’s preferred hands-on learning approach. He spoke about having

“a long-time relationship” with Foster, always being supportive of Foster and of

Foster being with his children, and having numerous “hands-on” conversations

with Foster about the importance of obtaining stability. Foster, at trial, agreed

that the social worker had tried to help him and was “absolutely” supportive.

      The social worker also testified of notifying the Fort Belknap Tribe—

located in parts of North Dakota and Montana—of these dependency

proceedings and that a tribal representative participated telephonically at review

and planning hearings. There was no testimony that the Fort Belknap Tribe had

a presence, or was able to offer services, in Washington. Nevertheless, Doney,

the Fort Belknap representative at trial, agreed that the Department had exerted

active efforts in this case. She stated that “the Department has reached out to




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 No. 79941-0-1/16

 [Foster] and    .   .   .   supported him while he was—he needed financial assistance

 with his rent, getting a job and that sort of thing so he can support his children.”

         Regarding housing assistance, Foster received that service from another

 community resource. He testified that a navigator at Catholic Community

 Services had been helping him locate affordable housing for “almost a year.”

         In sum, the record supports the trial court’s finding that the Department

exerted active efforts to reunite Foster with F.Y.O.15

                                                      B

         Under 25 U.S.C.           §   1912(f), the Department has the burden of proving

“beyond a reasonable doubt, including testimony of qualified expert witnesses,

that the continued custody of the child by the parent              .   .   .   is likely to result in

serious emotional or physical damage to the child.” WICWA imposes an identical

requirement. See RCW 13.38.130(3). Here, the trial court found the Department

satisfied this burden, stating:

        [T]he Court finds that there is evidence supporting beyond a
        reasonable doubt that [F.Y.O.] is at risk of serious emotional or
        physical damage. That conclusion is based on the extended period
        of time the child was waited for stability and permanence, the lack
        of evidence that the father will be able to do so in the near future,
        and also because of the father’s lack of good decision making and
        the risk of emotional/physical damage due to ongoing contact with
        [the mother].




          15 In a statement of additional authorities, Foster cites to In re Parental Rights to D.J.S.,

No. 36423-2-Ill, (Wash. Ct. App. Jan. 28, 2020),
http://www.courts.wa.gov/opinions/pdf/364232.pdf, as a case reversing an order of termination
wherein the Department failed to engage in “active efforts” as required by ICWA and WICWA.
D.J.S., however, is factually distinguishable from the present matter. There, Division Three
discussed how the Department made little more than service referrals and concluded that “active
efforts” required much more. See D.J.S., No. 36423-2-Ill, slip op. at 40-41.


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 No. 79941-0-1/17

       Foster contests this finding, but substantial evidence supports it. The

Department’s qualified Indian expert, Doney, testified that placing F.Y.O. in

Foster’s custody would likely result in serious emotional or physical damage to

the child because (1) the dependency had “been open for quite some time,” (2)

Foster had “not demonstrated stability,” (3) Foster was “not consistent with his

visitation,” and (4) Foster’s instability could negatively affect F.Y.O.’s “social,

emotional, cognitive, and academic outcome.”

       In addition to Doney’s testimony, the trial court orally ruled that Foster’s

poor choices posed an ongoing risk to F.Y.O.,

                Regardless of whether there is an active no-contact order or
       any other prohibition on contact, the reality is that being with [the
       mother] shows poor decision-making that puts [F.Y.O.] at risk. It is
       clear from Mr. Foster’s testimony that he understands those risks.
       It’s also clear that he intends to continue to have contact with [the
       mother] and would do so with [F.Y.O.] It is clear to the Court
       that. he is choosing those desires over the best interests of his
             .   .


       child, and it shows, quite frankly, to the Court that he doesn’t have
       the ability to make decisions necessary to protect [F.Y.O.]

       The record supports the trial court’s finding, beyond a reasonable doubt,

that placing F.Y.O. in Foster’s custody would likely result in serious emotional or

physical harm to the child.

      We affirm the court’s termination order.


                                                                 A

WE CONCUR:



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