                                                                                                                FILED
                                                                                                        OOE1      OF APPEALS
                                                                                                               DIVISION, 11

                                                                                                       2015 JUL - 7 AM 8: 4 2

                                                                                                                        GTOt4



    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                DIVISION II

 In re the Adoption of T.A.W.                                                      No. 47364 -0 -II




                                   Respondents,


          V.

                                                                              PUBLISHED OPINION
 C. W.,




          MAXA, J. —   CW1 is the biological father and CB is the biological mother of TAW, an


Indian2 child. CB is an Indian, but CW is not. CW appeals the trial court' s order terminating his

parental rights and allowing RB, CB' s husband, to adopt TAW. CW argues that the trial court

erred because it did not comply with applicable provisions in the federal and state versions of the

Indian Child Welfare Act ( IOWA).         Specifically,      he   argues   that 25 U. S. C. §   1912( d) and RCW


13. 38. 130( 1) required CB and RB to show that active efforts were made to provide CW with


remedial services and rehabilitative programs to prevent the breakup of the Indian family, and to




1 This case is sealed. For confidentiality purposes, the parties in this case are referred to by only
their initials.


2 We use the term. "Indian" in .this opinion rather than " Native American" because the applicable
statutes and cases all use "   Indian"   as a   legal term   of art.   No disrespect is intended.
47364 -0 -Il




show that those programs were unsuccessful, before the trial court could grant a motion to


terminate CW' s parental rights.3

            CB and RB argue that we should not consider this issue because CW did not raise it in


the trial court. Further, they argue that ICWA statutes are inapplicable because ( 1) ICWA

applies only to Indian parents and ( 2) CW abandoned TAW, which they claim negates ICWA' s

    active efforts" requirement under           Adoptive Couple        v.   Baby   Girl, _    U. S. ,    133 S. Ct. 2552,


186 L. Ed. 2d 729 ( 2013).


            We hold that ( 1) CW can raise the " active efforts" requirement for the first time on

appeal under        RAP 2. 5(   a)(   2) because the issue involves sufficiency of the            evidence, ( 2)   the plain


language      of   25 U. S. C. § 1912( d) and RCW 13. 38. 130( 1) required CB and RB to show that active


efforts were made to prevent the breakup of the Indian family consisting of CW and TAW before

CW' s      parental rights could       be terminated, ( 3)     these provisions apply to both the Indian and non -

Indian parents of an Indian child, and ( 4) Adoptive Couple does not eliminate ICWA' s " active


efforts" requirement under Washington law. Because CW and RB did not produce evidence of


active efforts at the trial court, we reverse the trial court' s termination and adoption orders and


remand to the trial court for further proceedings consistent with this opinion.




3
    CW     also assigns error    to two    of   the trial court' s   findings   of   fact: ( 1) CW did not participate in
the dissolution       court proceedings or         hearings,   and ( 2)   " on a number of occasions" CB brought
TAW to CW' s mother to allow visitation with both the grandmother and CW. Br: of Appellant
at   23.
       However, neither finding has any effect on the outcome of this appeal, and on remand the
findings will not be binding. Accordingly, we decline to address these assignments of error. See
Dave Johnson Ins., Inc. v. Wright., 167 Wn. App. 758, 781- 82, 275 P. 3d 339 ( 2012).
                                                                 2
47364 -0 -II




                                                           FACTS


           In December 2007, TAW             was   born to CW     and   CB. CB and TAW are both enrolled


members of the Shoalwater Bay Tribe. CW is not an Indian. At the time of TAW' s birth, CW

and CB were married and lived together on the Shoalwater Bay Indian Reservation. CB testified

that CW was not involved with any parenting of TAW when he was an infant. But CB' s. mother

testified that CW cared for TAW while CB worked during this time.

           In April 2008, CW' s and CB' s relationship deteriorated, and CB asked CW to leave their

residence.. At the time, CW and CB did not have an official parenting plan. CB testified that she

brought TAW       over   to CW' s     mother' s    house   once   in 2008. CB' s mother testified that she drove


CB   and   TAW to   visit   CW   at   his   mother' s   house twice in 2008. CW also testified that he had a


few visits with TAW during this time.

           In April 2009, CW visited CB' s residence and tried to physically take TAW from CB' s

home.      CB refused to let him take TAW. CB subsequently initiated dissolution proceedings and

asked for a restraining order against CW, which was granted. In apparent violation of the

restraining order, CW cared for TAW at least once in May 2009. CB later filed a petition to

terminate the restraining. order, based.in part on the fact that CW was in drug treatment. CW did

not attempt to visit TAW after May 2009. In early September 2009, the court granted the

petition for the dissolution of CB' s and CW' s marriage. The court later issued a final parenting

plan, which allowed CW only supervised visitation with TAW. However, CW did not arrange

for any supervised visitation.




                                                              3
47364 -0 -II




          Shortly thereafter, CW was charged and convicted of theft of a motor vehicle, possession

of a stolen vehicle, residential burglary, and second degree burglary. He was sentenced to a total

of 36 months in prison. For a four month period, CW and CB attempted to work on their


relationship while CW was in prison. Those efforts were unsuccessful, and thereafter CB began

a   relationship   with   R.B.   At unspecified times during CW' s stay in prison, CW and CW' s

cellmate called CB to tell her that CW wanted to see TAW. At some time in 2011 or 2012, CB


sent CW a book of pictures of TAW.


          CW was released from prison in September 2012. At or around this time, the FBI


questioned CB regarding a crime CW was then suspected of committing. CBpetitioned the

Shoalwater Tribal Court for a protection order for herself and TAW. CW appeared at the


hearing and argued that the order was unnecessary because he had completed anger management

classes. The tribal court granted the protection order, which required CW to attend six months of


domestic violence classes before he could exercise his visitation rights.

          CW subsequently was charged and convicted of second degree robbery. He was

sentenced to 43 months in prison with an expected release date in September 2015.


          CB   and   RB   married   in June 2013. ,   They petitioned the trial court to terminate CW' s

parental rights and to allow RB to adopt TAW. Counsel for CB and RB asserted at the


beginning of the trial that Washington law, including ICWA, applied to the case because TAW

was an Indian child. However, neither party addressed the issue of whether ICWA required CB

and RB to produce evidence that active efforts had been made to provide CW with remedial

services and rehabilitative programs, and to show that those programs were unsuccessful.




                                                           9
47364 -0 -II




        A trial was held to determine whether CW' s parental rights should be terminated. The

trial court found that TAW was an Indian child and that the federal and state ICWA statutes

applied to the proceedings. The trial court also found " beyond a reasonable doubt that the

elements of     the Indian Child. Welfare Act have been          met."    Clerk'   s   Papers ( CP)   at   93. The trial


court then found by clear, cogent, and convincing evidence that CW had abandoned TAW,

granted CB' s and RB' s petition to terminate CW' s parental rights, and granted RB' s petition to

adopt TAW.


        CW appeals.


                                                    ANALYSIS


A.      COMPLIANCE WITH THE " ACTIVE EFFORTS" REQUIREMENT OF ICWA


        1.      General Principles of ICWA


        Congress enacted ICWA " to protect the best interests of Indian children and to promote


the stability and security of Indian tribes and families by.the establishment of minimum Federal

standards    for the    removal of   Indian   children   from their families." 25 U. S. C. § 1902. Congress


recognized that " there is no resource that is more vital to the continued existence and integrity of

Indian tribes than their children" and " that an alarmingly high percentage of Indian families are

broken up      by the   removal, often unwarranted, of       their   children."    25 U. S. C. § 1901( 3)-( 4).


Washington also adopted its own version of ICWA, ch. 13. 38 RCW, which parallels the federal


version in many aspects.




                                                            5°
47364 -0 -II




             ICWA    applies     to   involuntary   child      custody   proceedings   involving   an "   Indian   child."   25


U. S. C. § 1912( a);       see   RCW 13. 38. 020; RCW 13. 34. 040( 3); RCW 26. 33. 040( 1)(                 a).   The statutes


define " child custody proceeding" to include both termination of parental rights and adoptive

placement.        25 U. S. C. § 1903( 1)( ii), (iv); RCW 13. 38. 040( 3)( b), ( d). The statutes define " Indian


child" as an unmarried person under age eighteen who is either ( a) a member of an Indian tribe


or ( b) is eligible for membership in an Indian tribe and is the biological child of a member of an

Indian tribe. 25 U.S. C. § 1903( 4); RCW 13. 38. 040( 7).                    If ICWA applies, courts involved in


child custody proceedings must follow a number of procedural and substantive requirements.

See,   e.   g., 25 U. S. C. § 1912; RCW 13. 38. 070, . 130.

             2.    Active Efforts to Prevent Family Breakup .

             One of ICWA' s requirements is that any party seeking an involuntary termination of a

parent' s rights to an Indian child must " 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).     CW argues on appeal that CB and RB failed to meet this requirement. We agree.

             The trial court concluded " beyond a reasonable doubt that the elements of the Indian


Child Welfare Act have been               met."     CP    at   93. However, the record shows, that CB and RB


presented no evidence that active efforts were made to provide CW with remedial services and


rehabilitative programs to prevent the breakup of the Indian family or that those programs were

unsuccessful. In fact, the record shows that neither the trial court nor the parties ever discussed


the active efforts requirement. And the trial court failed to enter factual findings showing that



                                                                    3
47364- 0- 11




the   parties complied with          25 U. S. C. § 1912( d)       and   RCW 13. 38. 130( 1).        Accordingly, we hold

that there was no factual basis for the trial court' s conclusion that all the elements of ICWA had


been met and that the trial court erred in making that conclusion.4

          Because CB and RB failed to meet the " active efforts" requirement of ICWA, the only

issues in this case are whether CW is precluded from arguing this failure on appeal or whether

ICWA is inapplicable under the facts of this case.


B.        RAISING ISSUE FOR THE FIRST TIME ON APPEAL


          CB and RB argue that CW cannot now argue that they failed to show active efforts to

prevent the breakup of the Indian family because he failed to raise this argument at the trial

court. CW admits that he failed to raise this argument in the trial court, but he argues that we


should consider the issue under RAP 2. 5( a)( 2) because CB and RB failed to prove sufficient

facts upon which the relief of termination and adoption could be granted. We agree with CW.


          Under RAP 2. 5( a), we generally do not review any claim of error not raised in the trial

court. However, RAP 2. 5( a)( 2) provides that an appellant may raise for the first time on appeal

the " failure to      establish    facts   upon which relief can         be   granted."    This exception applies where


the proof of particular facts at trial is required to sustain a claim. Mukilteo Ret. Apts., LLC v




4 CB and RB appear to argue that it was CW' s burden to show the trial court what services would
have aided him in being a better parent. But they cite to no authority for this proposition. And
this argument is inconsistent with the plain language of ICWA, which states that it is the party
moving for the involuntary termination of a parent' s rights to an Indian child that must meet the
statutory burden. 25 U. S. C. § 1912( d) ("[ ajny party seeking to                        effect      termination of parental
rights ...   shall     satisfy the    court   that   active efforts     have been   made" ( emphasis added));       RCW
13. 38. 130( 1) ("[     a]    party seeking to       effect ...   the involuntary termination of parental rights to an
Indian   child shall         satisfy the   court   that   active efforts   have been made"         ( emphasis added)).


                                                                    7
47364- 0- 11




Mukilteo Investors, LP, 176 Wn.                App.   244, 246, 310 P. 3d 814 ( 2013), review denied, 179 Wn.2d


1025 ( 2014).


          Here, 25 U. S. C. §       1912( d) and RCW 13. 38. 130( 1) provide that a party seeking to effect

an involuntary termination of parental rights to an Indian child must show that active efforts

were made to provide that parent with remedial services and rehabilitative programs to prevent


the   breakup   of   the Indian      family,   and   that those   programs were unsuccessful.          CW claims that the


trial   court could not grant        the   requested relief —termination of          his                   because CB
                                                                                           parental rights —




and RB failed to make that showing. Therefore, we hold that CW' s argument involves the

 failure to    establish    facts   upon which relief can         be   granted,"   which can be raised for the first time


on appeal under RAP 2. 5( a)( 2). 5

C.        APPLICATION OF IOWA TERMINATION PROVISIONS TO A NON -INDIAN PARENT


          CB and RB argue that ICWA termination provisions do not apply to termination of CW' s

parental rights because he is a non -Indian. Specifically, they argue that " ICWA and the values it

supports are not implicated in [ the] termination of parental rights of a non -Indian father to. an

Indian    child who    is   placed with      Indian   parents."
                                                                   Br. of Resp' t at 9. We disagree because the




s In claiming that this argument cannot be made for the first time on appeal, CB and RB also
assert that the record does not indicate that remedial services could have prevented the
termination and that the burden was on CW to show the trial court what services might have
aided him in being a better parent. But this argument relates to the merits of the issue, and they
fail to   explain    how their      position prevents     CW from claiming          error on appeal.
47364 -0 -II




plain language of ICWA states that its provisions apply to the termination of parental rights to an

Iridian child without regard to a parent' s status. 6

               Principles of Statutory Construction

        Statutory interpretation is a matter of law that we review de novo. Jametsky v. Olsen,

179 Wn.2d 756, 761, 317 P. 3d 1003 ( 2014).       Similarly, issues regarding ICWA' s applicability

involve questions of law that we review de novo. In re Custody of C.C.M, 149 Wn. App. 184,

194, 202 P. 3d 971 ( 2009).


        The primary goal of statutory interpretation is to determine and give effect to the

legislature' s intent. Jametsky, 179 Wn.2d at 762.. To determine legislative intent, we first look

to the. plain language of the statute. Id. We consider the language of the provision in question,


the context of the statute in which the provision is found, and related statutes. Lowy v.

Peacehealth, 174 Wn.2d 769, 779, 280 P. 3d 1078 ( 2012). When the statute at issue or a related


statute includes an applicable statement of purpose, the statute should be read in a manner


consistent with that stated purpose. See Protect the Peninsula' s Future v. Growth Mgint. Hr' gs


Bd., 185 Wn. App. 959, 969- 70, 344 P. 3d 705 ( 2015).

        If the plain meaning of a statute is unambiguous, we must apply that plain meaning as an

expression of legislative intent without considering extrinsic sources. Jametsky, 179 Wn.2d at

762. We do not rewrite unambiguous statutory language under the guise of interpretation.



6 CW frames the issue as whether he has " standing" to challenge the termination of his parental
rights under IOWA. Because CW is TAW' s biological parent, he clearly had standing and a
statutory right to participate in the termination proceedings and this appeal. See RCW
13. 34. 110( l),. 090( 1); see also In re Dependency ofD.M., 136 Wn. App. 387, 399, 149 P. 3d 433
 2006). The issue here is not standing, but whether ICWA termination provisions apply to CW.

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47364- 0- 11




Cerrillo    v.   Esparza, 158 Wn. 2d 194, 201, 142 P. 3d 155 ( 2006). And we do not add language to


an unambiguous statute even if we believe the legislature " intended something else but did not

adequately       express    it." Kilian v. Atkinson, 147 Wn.2d 16, 20, 50 P. 3d 638 ( 2002).


          2.      Plain Statutory Language

          25 U. S. C. § 1912( d) states:


          Any party seeking to effect a ... 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.

Similarly, RCW 13. 38. 130( 1) states:

          A party seeking to           effect ...   the involuntary termination of parental rights to an
          Indian child shall satisfy the court that active efforts have been made to provide
          remedial services and rehabilitative programs designed to prevent the breakup of
          the Indian family and that these efforts have proved unsuccessful.

Both statutes plainly state that they apply to any termination of parental rights to an Indian child.

Neither statute states that the parent facing termination must be Indian or makes any reference to

the parent' s status.



          Further, chapter 13. 34 RCW, which contains the Washington statutes regarding

termination of parental rights, includes a provision regarding the application of ICWA. RCW

13. 34. 040( 3)    states   that "[   i] f the child is an Indian child chapter 13. 38 RCW [ ICWA] shall

apply."   7 This statute unequivocally provides that under Washington law, ICWA applies in all




7 Chapter 26. 33 RCW, which contains the Washington statutes regarding adoption, includes an
identical      provision    regarding the     application of   ICWA. RCW 26. 33. 040( 1)(   a) states   that "[   i] f the
child is an Indian child, chapter 13. 38 RCW [ ICWA] shall apply."
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47364 -0 -Il




termination cases in which the child is an Indian. RCW 13. 34. 040( 3) does not condition the


application of ICWA on whether the parent also is an Indian.


         Finally,. both the federal statement of policy and the Washington statement of intent for

ICWA focus        on   the   status of   the   child.   25 U. S. C. § 1902   states, "
                                                                                         The Congress hereby declares

that it is the policy of this Nation to protect the best interests ofIndian children and to promote

the stability and security of Indian tribes and families by the establishment of minimum Federal

standards     for the   removal of       Indian   children   from their families." ( Emphasis       added.)   RCW


13. 38. 030    states, "   The legislature finds that the state is committed to protecting the essential

tribal relations and best interests ofIndian children by promoting practices designed to prevent

out -of h
        - ome placement of Indian children that is inconsistent with the rights of the parents."

Emphasis       added.)
                             Neither statute expressly states a policy to protect only Indian parents of

Indian   children:      See   also   25 U.S. C. § 1901( 3) (    stating that the United States has an interest in

protecting Indian children, with no mention of Indian parents).

         Nevertheless, CB and RB argue that ICWA' s " values" are not implicated in the

termination of the parental rights of a non -Indian father to an Indian child who is placed with


Indian parents. Br. of Resp' t at 9. CB and RB appear to argue that ICWA is designed to protect

only Indian families, which they imply consist of Indian parents and their Indian children. We

reject this argument.



         The federal ICWA provisions regarding congressional findings and policy do reference

Indian families. 25 U. S. C. §§ 1901( 4), 1902. Further, both 25 U. S. C. § 1912( d) and RCW


13. 3 8. 130( l) state that active efforts must be made to prevent the breakup of the. "Indian family."


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47364 -0 -II




However, both the federal and state ICWA plainly apply to involuntary terminations involving

an   Indian   child, regardless of      the status of the parents.         25 U. S. C. § 1912( d); RCW 13. 38. 130( 1).


There is no indication in either statute that an " Indian family" must have an Indian parent. The

argument made by CB and RB would require us to add language to both statutes, which we

decline to do. See Kilian, 147 Wn.2d at 20. Accordingly, we reject CB and RB' s argument that

applying ICWA termination provisions to a non -Indian parent would be inconsistent with the

values of ICWA.


          The federal ICWA also expresses a concern for the interests of Indian tribes: 25 U. S. C. §


1901( 3) states that " there is no resource that is more vital to the continued existence and integrity

of   Indian tribes than their       children."    25 U. S. C. § 1901( 5) states that the states " have often failed


to   recognize   the   essential    tribal   relations of   Indian   people."   See also RCW 13. 38. 030


 referencing in the       statement of       intent the interests    of an   Indian   child' s   tribe).   But nothing in the

language      of either   25 U. S. C. §      1912( d) or RCW 13. 38. 130( 1) suggests that ICWA applies only if

the parent is a tribal member. Further, because Washington statutes expressly state that ICWA

applies when an Indian child is involved, under Washington law an Indian child' s cultural tie to a

tribe is irrelevant     as   to   whether    ICWA   applies.    In   re
                                                                          Parenting & Support ofBeach, 159 Wn.

App. 686, 692, 246 P. 3d 845 ( 2011).

          Here, it is undisputed that TAW is an Indian child. Therefore, we hold that the

provisions of     25 U. S. C. §     1912( d) and RCW 13. 38. 130( 1) apply to the termination of CW' s

parental rights even though CW is not an Indian.




                                                                12
47364- 0- 11




D.        APPLICATION OF ICWA WHEN THE PARENT ABANDONS THE CHILD


          CB and RB argue that ICWA' s termination provisions do not apply to the termination of

CW' s parental rights because he abandoned TAW. Specifically, they argue that the United

States Supreme Court' s decision in Adoptive Couple precludes the application of the

requirements of       25 U. S. C. § 1912( d) and RCW 13. 38. 130( 1) because CW abandoned TAW. We


disagree.


                Adoptive Couple Decision


          In Adoptive Couple, the United States Supreme Court addressed a situation where an


Indian child' s biological father, a registered member of the Cherokee Nation, voluntarily

relinquished    his   parental rights    to the   child' s non -Indian mother   before the   child' s   birth. 133 S.


Ct. at 2558. The another later put the child up for adoption, and a non -Indian couple began

adoption proceedings. Id. The biological father contested the proceedings, arguing that he

believed he was only relinquishing his rights as to the child' s mother. Id. The trial court

determined that ICWA         applied     to the proceedings and that 25 U. S.     C. § 1912( f)$barred the


termination of the father' s parental rights. Id. at 2559. Accordingly, the trial court denied the

adoptive couple' s petition for adoption and awarded custody to the father. Id. The South

Carolina Supreme Court affirmed the trial court' s decision, but it also affirmed the trial court on




s
    25 U. S. C. § 1912( f) states,
                               No termination of parental rights may be ordered.in such
                                     "

proceeding in the absence of a detennination, supported by evidence beyond a reasonable
doubt, 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."

                                                            13
4736470 -II




the basis that the adoptive couple had failed to meet the active efforts requirement of 25 U. S. C. §

1912( d). M.


          The United States Supreme Court reversed. The Court first determined that the text of


ICWA demonstrated that it was designed primarily to counteract the unwarranted. removal of

Indian    children    from Indian families. Id. at. 2561. In light of this purpose, the Court concluded


that when " the adoption of an Indian child is voluntarily and lawfully initiated by a non -Indian

parent with sole custodial rights, the ICWA' s primary goal of preventing the unwarranted

removal of    Indian    children and             the dissolution of Indian           families is      not   implicated."   Id   Because


the Indian father never had legal or physical custody of the child, the Court held that 25 U. S. C. §

1912( f) did not apply. Id. at 2562.

          The Court     next     determined that 25 U. S. C. § 1912( d)' s requirement that remedial services


be provided. to prevent the breakup of the Indian family did not apply where an Indian family' s

 breakup" would not be caused by the termination of the parent' s rights. Id. at 2562. The Court

stated:




          The term " breakup"              refers   in this   context   to "[   t] he discontinuance of a relationship,"
          American Heritage                Dictionary 235 ( 3d ed.              1992),     or "   an ending as an effective
          entity," Webster'           s   273 ( defining " breakup"              as "   a disruption or dissolution into
          component parts:                an   ending    as an effective         entity").     But when an Indian parent
          abandons an Indian child prior to birth and that child has never been in the Indian
          parent' s    legal     or       physical      custody, there is           no "     relationship"      that would be
           discontinu[ ed]"       -         and no " effective       entity" that        would       be "      by the
                                                                                                            end[ ed]" —

          termination       of   the Indian         parent' s rights.        In such a situation, the " breakup of the
          Indian   family"       has      long   since occurred, and §            1912( d) is inapplicable.


          Our interpretation              of §   1912( d) is, like      our     interpretation      of §    1912( f), consistent
          with   the   explicit       congressional           purpose     of    providing         certain "   standards for the
          removal      of   Indian        children   from their families." In addition, the [ Bureau of Indian
          Affair' s] Guidelines                confirm   that   remedial services under §               1912( d) are intended



                                                                        14
47364 -0 -II




           to alleviate the need to remove the Indian child from his or her parents or Indian
         custodians,"   not to facilitate a transfer of the child to an Indian parent.


Id. at 2562- 63 ( internal citations omitted).


         At least one court has applied the Adoptive Couple analysis in a case involving the

parent' s apparent abandonment of the Indian child when that parent never had custody of the

child. In In re J.S., the Montana Supreme Court addressed a situation where an Indian father


failed to obtain legal or physical custody of his child and failed to establish a relationship with

the child until the child was eight years old. 2014 MT 79, 374 Mont. 329, 321 P. 3d 103, 111- 12.


After the Indian father made initial contact with the child, the father refused to complete


remedial parenting classes and indicated on several occasions that he wanted to relinquish his

parental rights. Id. Based on the nonexistent relationship between the Indian father and his

child, as well as their limited personal contact, the court held that the breakup of the Indian

family had long    since occurred and      that 25 U. S. C. §   1912( d) was inapplicable. Id.

         2.    Inapplicability of Adoptive Couple

         We hold that the Court' s analysis in Adoptive Couple is inapplicable here for two


reasons. First, the facts here are completely different than in Adoptive Couple, where the father

never   had custody   of the   Indian   child and   expressly   relinquished   his   parental rights.    133 S. Ct. at


2558. See also J.S., 321 P. 3d at 112 ( not applying ICWA when father never obtained legal or

physical   custody   of child and   indicated that he   wanted    to relinquish      his parental   rights).   Here,


CW had both legal and physical custody of TAW for some period of time, and there is no

evidence in the record that CW ever wanted to or was willing to terminate his parental rights to

TAW. Despite CW' s incarceration in 2009 and in 2011, CW continued to express an interest in


                                                         15
47364 -0 -II




maintaining a relationship with TAW at a later date. As a result, the reasoning of Adoptive

Couple is inapplicable —there       still is a family that would be broken up by termination of CW' s

parental rights.




         Second, Adoptive Couple involves only an interpretation of the federal ICWA and

specifically 25 U. S. C. § 1912( d)   and (   f). Although the language of RCW 1. 3. 38. 130( 1) and ( 3) is


almost identical to their federal counterparts, we are not bound by Adoptive Couple in the

interpretation of Washington law. This is significant because, as noted above, Washington has


enacted additional statutes that govern the applicability of ICWA.

         Chapter 13. 34 RCW, which contains the Washington statutes regarding termination of

parental rights, unequivocally states that ICWA applies in all termination proceedings involving

Indian   children..   RCW 13. 34. 040( 3)   states   that "[ i] f the child is an Indian child chapter 13. 38


RCW [ ICWA]        shall   apply." ( Emphasis    added.)    Chapter 26. 33 RCW, which contains the


Washington statutes regarding adoption, includes an identical provision regarding the application

of   ICWA. RCW 26. 33. 040( 1)(      a) states   that "[ i] f the child is an Indian child, chapter 13. 38 RCW


 ICWA]     shall   apply." ( Emphasis   added.)      These statutes do not provide an exception to the


applicability of ICWA when a parent abandons an Indian child.

         We decline to apply Adoptive Couple to prevent the application of ICWA under the facts

of this case. We hold that under Washington law, the " active efforts" requirement of RCW


13. 38. 130( 1) applies to a parent who has had custody of an Indian child and has not expressly

relinquished parental rights even if that parent at some point in time has abandoned the child.




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47364 -0 -II




         We reverse the trial court' s termination and adoption orders and remand to the trial court


for further proceedings consistent with this opinion.




                                                        MAXA; J.



We concur:




 WO . SWICK, P. J.




 LEF .




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