                                                                   FILED
                                                               JANUARY 28, 2020
                                                           In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

In the Matter of the Parental Rights to        )         No. 36423-2-III
                                               )
D.J.S.                                         )         PUBLISHED OPINION
                                               )

         FEARING, J. — Appellant James Smith is an enrolled member of the federally

recognized Oglala Sioux Tribe, formerly known as the Oglala Sioux Tribe of the Pine

Ridge Reservation, South Dakota. Smith contends that the Washington State Department

of Social and Health Services (DSHS) failed to offer all ordered services and failed to

engage in “active efforts,” as demanded by the Indian Child Welfare Act of 1978

(ICWA), 25 U.S.C. §§ 1901-1963, and the Washington State Indian Child Welfare Act

(WICWA), chapter 13.38 RCW, before terminating Smith’s parental rights to his son,

Dennis. We agree with both contentions. We do not reverse the termination based on the

failure to offer ordered services since the trial court, based on substantial evidence, found

that the services would be futile. We reverse and remand to the trial court to determine if

active efforts would be futile.
No. 36423-2-III
In re Parental Rights to D.J.S.


                                           FACTS

       James Smith (Smith) appeals the termination of his parental rights to his son,

Dennis Smith (Dennis). Smith, who resides in Wenatchee, is a member of the Oglala

Sioux Tribe. The child’s mother, Donna Quayle, voluntarily relinquished her rights to

Dennis. We employ pseudonyms for the father, mother, and child.

       We take our facts from the parental termination trial. Before the birth of Dennis,

James Smith helped raise another son until the child reached three years of age. That son

is now in his 20s. Smith also assisted in raising his girlfriends’ toddlers and a sister’s son.

       In November 2015, medical personnel found Donna Quayle unconscious after a

seizure. Medics transported Quayle to Central Washington Hospital in Wenatchee, where

hospital staff discovered Quayle to be pregnant. High blood pressure and pre-eclampsia

caused the seizure and a mild stroke. Quayle was airlifted to the University of

Washington Medical Center in Seattle.

       On November 13, 2015, University of Washington physicians performed an

emergency caesarean section on Donna Quayle. Doctors delivered Dennis after twenty-

five weeks gestation. Dennis weighed 1 pound, 11.5 ounces at birth. Quayle and Dennis

tested positive for Suboxone and amphetamines at the time of Dennis’s birth, but Quayle

denied any drug use.


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       Dennis spent seventy to seventy-five days in the University of Washington hospital

before his release to foster parents. During his hospitalization, Dennis required a jet

ventilator, oxygen, and a feeding tube. Dennis now suffers from a low white blood cell

count, possibly a genetic condition. Dennis cannot see straight even with glasses.

       During hospitalization of Dennis, University of Washington staff unsuccessfully

attempted to engage James Smith in services and visitation with Dennis. Despite

unemployment and despite being afforded free housing, transportation, and meals

throughout Dennis’s hospital stay, Smith did not visit Dennis on a regular basis or for any

extended amount of time. Smith demonstrated angry and violent behavior toward

hospital staff and accused staff of choking Dennis. While at the university hospital,

Smith repeatedly appeared agitated, displayed jittery movements and rapid speech, and

encountered difficulty completing full sentences. In January 2016, hospital security

intervened when Smith threatened to kill a nurse. During Dennis’s hospital stay, Smith

was scheduled to provide a urinalysis sample at Care Plus Medical Center, but he refused.

       According to James Smith, he participated, along with Donna Quayle, in a

parenting class at the University of Washington hospital. We do not know the nature

or length of the class.




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       James Smith claims that DSHS removed Dennis from Dennis’s Native American

family home at Dennis’s birth. The facts show, however, that Dennis never lived at his

father’s home or with his father’s Native American nation.

       Following two months of hospitalization, Dennis entered a foster home, where

he continued to live at the time of the termination trial. On January 25, 2016, DSHS filed

a dependency petition for Dennis. DSHS deemed neither parent capable of caring for

Dennis. DSHS concluded that Donna Quayle actively abused illegal drugs.

       Because James Smith is a member of the Oglala Sioux Tribe, Smith’s son Dennis

is eligible for enrollment in the Native American nation. DSHS sent at least three letters

to the Oglala Sioux in 2016 and 2017 about James and Dennis Smith, but received no

response.

       On February 29, 2016, James Smith stipulated to the dependency of Dennis.

By order dated March 9, Smith agreed to participate in, and the court directed DSHS

to provide a drug and alcohol abuse evaluation and treatment, random urinalyses, a

parenting assessment and education, education on Dennis’s special needs, a domestic

violence evaluation and treatment, a psychological assessment, and housing. The services

addressed deficiencies identified by the assigned DSHS social worker, Darin Petersen.




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       Social worker Darin Petersen identified substance abuse as James Smith’s primary

deficiency that prevented him from safely parenting Dennis. DSHS’s Indian child

welfare expert, Brandy West, also identified substance abuse as the primary obstacle to

Smith’s ability to parent. Smith admitted to methamphetamine use and acknowledged a

need for treatment. Petersen recommended a mental health assessment because a mental

health illness often accompanies drug use.

       Darin Petersen recommended a domestic violence perpetrator’s assessment for

James Smith because of an order preventing Smith from contact with his mother due to

domestic violence. Smith alternatively lived with his mother and couch surfed at friends’

residences. We do not know why Smith periodically resided at his mother’s dwelling if

an order enjoined contact with her.

       The dependency court conducted periodic review hearings throughout the

dependency. James Smith attended the first dependency review hearing on June 1, 2016.

During the review hearing, the court found that DSHS asserted active efforts to engage

the parents in services. The dependency court also found that Smith failed to progress in

services.

       DSHS attempted contacts with relatives of James Smith to assess whether DSHS

could place Dennis with a relative. According to Darin Petersen:


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                MR. BOZARTH [State’s counsel]: Mr. Petersen, um at the time after
       the child was removed, did you make an attempt to address finding family
       placements for this child?
                MR. PETERSEN: We did, yes.
                MR. BOZARTH: And who—who did Mr. [Smith] identify?
                MR. PETERSEN: Mr. [Smith’s] mother Deborah Horner and his
       sister, I don’t recall his sister’s name.
                MR. BOZARTH: And were attempts made to contact them with
       regards to any desire to parent the child?
               MR. PETERSEN: There was, yes.
               MR. BOZARTH: Did either of them ever express a desire to have
       placement of the child?
               MR. PETERSEN: Neither of them ever responded to our inquiries.

1 Report of Proceedings (RP) at 102. We do not know the nature of the DSHS inquiries.

We do not know at what address or phone number DSHS contacted the relatives and

whether DSHS had accurate information as to the relatives’ contact data. DSHS

presented no other evidence of efforts to contact James Smith’s Native American family.

       On September 19, 2016, Wenatchee’s Center for Alcohol and Drug Treatment

chemical dependency professional Neddy Leppanen evaluated James Smith. Leppanen

found Smith severely dependent on methamphetamine and alcohol, and moderately

dependent on cannabis. Leppanen recommended Smith undergo a month of intensive

inpatient treatment due in part to earlier treatment attempts. Leppanen did not consider

Smith’s Native American background when evaluating his chemical dependency and did

not investigate culturally sensitive treatment options for Smith. Smith began inpatient


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In re Parental Rights to D.J.S.


treatment at the Center for Alcohol and Drug Treatment in Wenatchee on the same day as

his evaluation. DSHS does not know the background and experience held by the center in

treating Native Americans.

       During the first week of intensive inpatient treatment at the Center for Alcohol and

Drug Treatment, James Smith’s condition improved. Nevertheless, by October 4, Smith

exhibited erratic behavior, rapid speech, defiance, and disobedience of center guidelines.

Because of the rapid speech, the treatment center ordered two urinalyses, both which

tested negative. Based on Smith’s erratic behavior, the center caused a mental health

provider to conduct an assessment on October 6. Smith agreed to participate in the

evaluation, but terminated the evaluation after ten minutes and demanded an attorney.

       During his time in treatment, Center for Alcohol and Drug Treatment program

staff discovered controlled substances in James Smith’s housing unit, and, on October 6,

2016, staff confronted Smith about the contraband. An angry Smith left the center and

ended his treatment. Smith believed that center staff endangered his safety by asking him

to snitch on other patients. Although DSHS repeatedly informed Smith that his substance

abuse prevented his parenting Dennis, Smith refused to participate in further substance

abuse treatment.

       DSHS social worker Darin Petersen referred James Smith to random urinalyses


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services. Petersen explained to Smith the urinalysis process. Smith refused random

urinalyses.

       Social worker Darin Petersen met with James Smith fifteen to twenty times

throughout the dependency at the DSHS office. Early in the dependency, Darin Petersen

met monthly with Smith. When Smith later encountered legal troubles, the frequency of

visits waned. Petersen discussed mental health treatment with Smith during each visit.

Petersen explained to Smith that he did not need a referral for mental health services and

that Smith only needed to make an appointment at the provider’s office. The

recommended provider, Catholic Family Services, is located in Smith’s hometown of

Wenatchee and is accessible by public transportation.

       During trial, social worker Darin Petersen testified concerning his assistance to

James Smith in locating housing:

               MR. BOZARTH: And finally, uh you mentioned something about
       referrals or directing Mr. [Smith] to housing resources—
               MR. PETERSEN: Mmm hmm.
               MR. BOZARTH: What is—what does that entail?
               MR. PETERSEN: Currently it’s called the community housing
       network. Uh it’s a one—it’s basically a one stop shopping phone number
       that refers you to all the housing, low income housing, shelters in the area.
       At that time, uh we would basically write down the names of the local
       shelters for the individuals or give them a print off of community network
       services in the area and highlight the shelters that they could call that would
       fit their current circumstances.


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              MR. BOZARTH: Is that the resource [DSHS] has available to
       provide—try to get people into housing in this area?
              MR. PETERSEN: It is.
              MR. BOZARTH: Does [DSHS] have the ability to . . . subsidize rent
       for people?
              MR. PETERSEN: We can at times, yes.
              MR. BOZARTH: Is that something that was appropriate for Mr.
       [Smith]?
              MR. PETERSEN: If he had found a rental, yes, that would have been
       appropriate.
              MR. BOZARTH: But it was—was it up to him to identify the rental
       first?
              MR. PETERSEN: It is, yeah.
              MR. BOZARTH: In your opinion, does this process of providing
       services by [DSHS], does it also take some initiative on the parent’s part for
       that parent to be successful?
              MR. PETERSEN: It takes a lot of initiative on [their] part, definitely.
              MR. BOZARTH: If a parent is unwilling to cooperate with the
       service plan, are they likely to become a fit parent?
              MR. PETERSEN: Most likely not.

1 RP at 63-64.

       After reading this testimony, we wonder if the housing network operated a

physical office in addition to a phone number. We do not know if Darin Petersen

contacted the housing network on behalf of James Smith and compiled, for Smith, a

list of housing providers to call. The record does not show whether Petersen referred

Smith for any housing available from Native American nations.




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       Darin Petersen also assisted James Smith with obtaining a phone. Petersen walked

Smith to the community services office and gave him instructions on how to obtain a

phone. Remarkably, Petersen does not know if Smith actually garnered a phone.

       In January 2017, Darin Petersen referred James Smith for a domestic violence

evaluation with a certified domestic violence provider, Mike Magnotti. Smith did not

appear for the evaluation. Petersen referred Smith again to Magnotti in March 2017.

Smith likewise did not appear for the second referral.

       DSHS concluded that James Smith would not benefit from parenting classes while

taking methamphetamine. Therefore, DSHS did not refer Smith for parenting education.

DSHS anticipated offering Smith parenting classes through Project Safe Care should he

have achieved sobriety.

       Throughout the dependency proceeding, DSHS offered James Smith visitation

with Dennis. The dependency court initially ordered visitation three times per week for

two hours at a time. DSHS gave Smith five referrals for visitation supervisors during the

dependency. Smith visited Dennis five times early in the dependency. Nevertheless,

Smith last visited Dennis in November 2016.

       James Smith contends that, while Dennis stayed in the hospital, social worker

Darin Petersen repeatedly denied Smith visitation with his son. The record does not show


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that Petersen denied visitation during Dennis’s seventy to seventy-five days at the

University of Washington hospital. Nevertheless, on some occasions after Dennis’s

release from the hospital, Dennis’s low blood cell count rendered the boy susceptible to

illness, so DSHS cancelled scheduled visits.

       Dennis suffers from behavioral problems. He can scream, yell, and cry for an

hour’s time. Dennis attends frequent medical appointments and he needs constant

supervision.

       After a review hearing on December 7, 2016, the dependency court again found

that DSHS asserted active efforts to engage the parents in services. The court also found

that James Smith had failed to make progress in services. Because of the lack of

visitation, the dependency court, in May 2017, suspended further visits. Thereafter,

Smith repeatedly requested visitation with Dennis.

       During the pendency of the dependency action, James Smith spent eight to nine

months in jail. He never spent much more than one month in jail at a time, however.

We do not know the dates of Smith’s incarcerations.

       DSHS never provided James Smith services related to his Native American

heritage. James Smith accuses DSHS of reproaching him for lacking a Native American

background, although Smith does not identify the DSHS employee who reproved him.


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                                      PROCEDURE

       On March 24, 2017, DSHS filed a petition to terminate James Smith’s parental

rights to Dennis. DSHS failed to send notice to the Oglala Sioux Tribe of the termination

petition and trial date as required by 25 U.S.C. § 1912(a). The superior court conducted a

termination trial in August 2017 and ordered termination of parental rights. On appeal,

DSHS conceded it failed to notify the Native American nation of the proceedings and

agreed to remand the case for a second trial.

       On February 9, 2018, DSHS notified the Oglala Sioux Tribe of the termination

petition and an August 21, 2018, termination trial date. DSHS phoned the Native

American nation and sent its ICWA child protection services office a complete copy of

Dennis’s file, which the Native American nation received on July 23, 2018. An Indian

child welfare expert employed by DSHS unsuccessfully attempted to communicate with

the Oglala Sioux before the second termination trial.

       After remand of the termination petition to the dependency court, DSHS social

worker Darin Petersen reinstated the offer of services to James Smith. Petersen

emphasized to Smith the critical importance of a chemical dependency assessment and

treatment. Smith did not respond to Petersen’s entreaties other than to appear at the

DSHS office the day before trial to request a referral for a chemical dependency


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assessment and mental health services. Smith pled guilty to possession of

methamphetamine on August 15, 2018.

       At the time of the second termination trial in late August 2018, Dennis was two

years and nine months old. No one from the Oglala Sioux Tribe appeared at the

termination retrial. The trial court observed that James Smith was disoriented as to place

and time during the trial.

       During the second termination trial, Darin Petersen testified that an active

substance abuser cannot parent a child with Dennis’s unique medical conditions.

According to Petersen, Dennis’s behavioral problems need constant supervision. Petersen

opined that Smith’s constellation of deficiencies rendered him incapable of parenting any

child. Petersen testified that Dennis needed a permanent placement immediately.

       During the second termination trial, chemical dependency expert Neddy Leppanen

testified that, when James Smith terminated inpatient treatment at the Center for Alcohol

and Drug Treatment in October 2016, he still needed treatment. Leppanen did not

comment on whether she considered Smith’s Native American heritage when she

performed her chemical dependency evaluation.

       DSHS employee Brandy West, an enrolled member in the Citizen Potawatomi

Nation, testified as DSHS’s designated Indian child welfare expert. West assists DSHS


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and Native American nations in complying with ICWA and addressing the needs of

Native American families. West lacks knowledge of the Oglala Sioux’s child rearing

practices and beliefs.

       Brandy West averred that she attempted contact with the Oglala Sioux concerning

Dennis Smith, including calling the Native American nation twice the day before trial, but

no member of the Oglala Sioux expressed interest in the termination proceedings. West

opined that custody of Dennis by James Smith would likely result in serious emotional

and physical harm to Dennis and would not serve Dennis’s best interests. West remarked

that Smith never finished any services to correct his parental deficiencies and never

completed substance abuse treatment.

       Brandy West testified to whether DSHS engaged in active efforts to provide

services to prevent the dissolution of a Native American family. West declared:

               Um active efforts means that the services aren’t just kind of referred
       and told hey, you can go here or there. It’s not just enough to identify that
       the person has a substance abuse disorder, but that you sit down with that
       client and you meet them face-to-face, you go over that case plan, you
       develop a plan for how they’re going to engage in the services and when
       barriers are talked about that you make efforts to do that. Um in reviewing
       Mr. Petersen’s notes and in um FamLink where the notes are at um I saw
       that Mr. Petersen met with Mr. [Smith] on a number of times where he tried
       to engage him in conversation about accessing services, particularly
       chemical dependency. In a situation where he didn’t have a phone, um Mr.
       Petersen actually brought him over to the [community services office] and
       provided him the instructions about how to get that phone, which would

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       logically allow him extra access to services. The actual act of walking over
       um with the client is an active effort on [DSHS]’s behalf and meeting face-
       to-face and going over those barriers are also active efforts to engage
       clients.

1 RP at 32-33. West agreed with Darin Petersen’s assessment that chemical dependency

imposed the principal impediment to parenting and that Smith would make no gains in his

parenting capability until he achieved sobriety.

       Brandy West testified that Dennis would suffer substantial emotional and physical

harm if released to James Smith, because of Smith’s ongoing chemical dependency.

West further noted that, when somebody has active, ongoing, and unresolved substance

abuse, that person will likely continue to abuse. West further opined that Smith’s

continued use would render Smith incapable of meeting Dennis’s basic needs.

       During the second trial, Tani Gunn, Dennis’s court-appointed special advocate,

testified to Dennis’s unique medical needs and noted that his current foster home

placement provides Dennis a safe, stable, and appropriate environment to meet those

needs. According to Gunn, James Smith could not care for Dennis because of Dennis’s

medical needs and Smith’s continued use of drugs and alcohol. Gunn averred that

Dennis needed permanency “now.” 1 RP at 83.

       At trial, James Smith testified that he needed no services to help him parent.

Thus, according to Smith, he lacked any obligation to participate in services. Smith

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described himself as a better parent than anyone else. He boasted that he frequently

cares for children and characterized child care as “easy.” 1 RP at 91.

       James Smith deems DSHS’s demand to engage in services a crime against him

and against Native American law. Smith denied methamphetamine use, but admitted to

his recent conviction of possession of methamphetamine. He also admitted to being

incarcerated for eight or nine months during the dependency. Smith admitted that he

left substance abuse treatment early. Smith claimed that he underwent a mental health

assessment at Catholic Family Services, but Smith did not provide proof of the

assessment.

       After the second trial, the superior court terminated James Smith’s parental rights

to Dennis. The court entered findings of fact, eight of which James Smith challenges:

              2.12 Services Offered or Provided. All services ordered pursuant to
       RCW 13.34.130, and RCW 13.34.136, and all necessary services
       reasonably available, capable of correcting the parental deficiencies within
       the foreseeable future, have been expressly and understandably offered or
       provided.
              2.12.1 The services offered to the father were substance abuse
       services, domestic violence services, mental health services, housing
       services.
              2.12.2 Parenting education for the father was deferred until he
       achieved sobriety. It is unlikely the father would have benefited from
       parenting education until he achieved sobriety. The father did not achieve
       sobriety and the service would not have corrected any parental deficiency
       within the foreseeable future.
              ....

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               2.12.4 Based on the testimony of the qualified Indian expert active
       efforts were made to provide remedial services and rehabilitative programs
       designed to prevent the breakup [of] the Indian family and that these efforts
       have proved unsuccessful.
               ....
               2.13.7 This young child . . . has been in care since birth and needs
       permanency now. The child cannot wait for the father to remedy his
       parental deficiencies.
               2.13.8 The father is currently unfit to parent.
               ....
               2.14 Child’s Early Integration Prospects. Continuation of the
       parent-child relationship diminishes the child’s prospects for early
       integration into a stable and permanent home. The child has been out of
       home since birth. The child is in a pre-adoptive home and cannot achieve
       permanency unless parental rights are terminated. At this point the father
       has no relationship with the child.
               ....
               2.17 Best Interests of the Child. Termination of the parent-child
       relationship is in the best interests of the child. The father has failed to
       address his methamphetamine addiction. The father is no more fit to parent
       now than at the time the child was removed. Based on the testimony of the
       qualified Indian expert, there is evidence beyond a reasonable doubt that
       continued custody of the child by the father is likely to result in serious
       emotional or physical damage to the child.

Clerk’s Papers (CP) at 172-74. James Smith also challenges the trial court’s conclusion

of law 3.2, which states:

              The required elements for termination of parental rights under RCW
       13.34.180(1)(a)-(f) have each been established by clear, cogent, and
       convincing evidence. That the father is currently unfit to parent has been
       established by clear, cogent, and convincing evidence. That active efforts
       were made to provide remedial services and rehabilitative programs
       designed to prevent the breakup up the Indian family and that these efforts
       have proved unsuccessful has been established by clear, cogent, and

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       convincing evidence. That continued custody of the child by the father is
       likely to result in serious emotional or physical damage to the child has
       been established by evidence beyond a reasonable doubt.

CP at 174.

                                  LAW AND ANALYSIS

       Issue 1: Did sufficient evidence support the trial court’s finding that DSHS

provided to James Smith all services ordered and all necessary services reasonably

available?

       Answer 1: No. The uncontested evidence established that DSHS failed to provide

James Smith one of the services ordered by the dependency court.

       On appeal, James Smith assigns numerous errors to trial court rulings. A principal

assignment of error concerns the trial court’s finding that DSHS offered him all ordered

services.

       Chapter 13.34 RCW creates a two-step process for terminating parental rights.

First, DSHS must show that it satisfied its statutory obligations under RCW 13.34.180(1).

Second, DSHS must show that termination of parental rights would be in the best

interests of the child. In re Welfare of A.B., 168 Wn.2d 908, 911-12, 232 P.3d

1104 (2010); RCW 13.34.190. The first step focuses on the adequacy of the parents,




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while the second step focuses on the child’s best interests. In re Welfare of A.B., 168

Wn.2d at 911.

       Pursuant to RCW 13.34.180(1), the first step for termination involves six factors.

These elements are:

               (a) That the child has been found to be a dependent child;
               (b) That the court has entered a dispositional order . . . ;
               (c) That the child has been removed . . . from the custody of the
       parent for a period of at least six months pursuant to a finding of
       dependency;
               (d) That the services ordered under RCW 13.34.136 have been
       expressly and understandably offered or provided and all necessary
       services, reasonably available, capable of correcting the parental
       deficiencies within the foreseeable future have been expressly and
       understandably offered or provided;
               (e) That there is little likelihood that conditions will be remedied so
       that the child can be returned to the parent in the near future . . . ;
               (f) That continuation of the parent and child relationship clearly
       diminishes the child’s prospects for early integration into a stable and
       permanent home.

RCW 13.34.180(1). DSHS must prove each element by clear, cogent, and convincing

evidence. RCW 13.34.190(1)(a)(i). DSHS satisfies this evidentiary standard when a

court determines that the ultimate facts are shown to be “‘highly probable.’” In re

Parental Rights to K.M.M., 186 Wn.2d 466, 478, 379 P.3d 75 (2016) (quoting In re

Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). James Smith claims that

DSHS failed to fulfill the requirements of RCW 13.34.180(1)(d) and (f).


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       Even if the trial court determines that DSHS fulfilled the statutory requirements in

RCW 13.34.180(1), the court may not terminate parental rights unless doing so furthers

the child’s best interests. RCW 13.34.190(1)(b). DSHS may prove the best interests

element by only a preponderance of the evidence. In re Welfare of A.B., 168 Wn.2d at

911-12 (2010).

       We first address the fourth statutory element of parental rights termination found

in RCW 13.34.180(1)(d). Under this subsection, DSHS must establish that it provided or

offered all ordered services and all necessary services, reasonably available, capable of

correcting parental deficiencies in the foreseeable future. DSHS must tailor services to

each parent’s needs. In re Dependency of P.D., 58 Wn. App. 18, 29-30, 792 P.2d 159

(1990).

       James Smith contends that DSHS failed to establish that it provided all ordered

and necessary services. In particular, because DSHS delayed Smith’s parenting education

until he achieved sobriety, DSHS failed to offer an ordered service. Smith also contends

that DSHS failed to provide mental health services tailored to his resistance to services

and suspicions of the non-Native DSHS. He maintains that DSHS failed to provide

substance abuse treatment geared toward Native Americans. Finally, he argues that




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DSHS failed to afford him housing, a predicate to mental health and overcoming a

chemical dependency.

       We agree with James Smith that DSHS failed to afford all ordered services.

The initial dependency order and later review orders required DSHS to offer a parenting

assessment and classes. DSHS contends that it need not have offered parenting education

because Smith never gained sobriety. Nevertheless, the dependency court’s orders did not

expressly condition parenting classes on sobriety or participation in chemical dependency

treatment.

       RCW 13.34.180(1)(d) demands that “the services ordered under RCW 13.34.136

[be] . . . expressly and understandably offered or provided.” (Emphasis added.)

Washington decisions repeat the obligation to provide ordered services. The State must

provide all court-ordered services to the parent. In re Dependency of D.A., 124 Wn. App.

644, 651, 102 P.3d 847 (2004). The statute expressly requires “both that all services

ordered have been provided, and that all necessary services reasonably available have

been provided.” In re Dependency of T.L.G., 126 Wn. App. 181, 200, 108 P.3d 156

(2005) (citing RCW 13.34.180(1)(d)). The statute does not permit DSHS to choose to

withhold an ordered service until the parent completes another service. If DSHS deemed

parental classes worthless while James Smith was mired in substance abuse, DSHS


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should have requested that the dependency court amend the service order to allow

withholding of parenting education until Smith attained sobriety.

       James Smith also faults DSHS for failing to provide mental health services

and chemical dependency treatment tailored to his Native American background. He

contends DSHS should have customized mental health services and substance abuse

treatment to his background. We reject this argument for several reasons. The

dependency court never ordered services attended to Smith’s native heritage. DSHS

needed to tailor services to Smith’s needs, but Smith provided no testimony concerning

special needs based on his background. We suspect that some methods of substance

abuse treatment may be more beneficial to Native Americans, but Smith did not provide

the trial court with evidence of other methods of treatment and their availability and

utility for Smith. Nor did Smith testify to any acquaintance with the culture and norms of

the Oglala Sioux and a desire to conform to those norms.

       DSHS afforded James Smith both mental health treatment and chemical

dependency treatment. Smith voluntarily aborted chemical dependency treatment.

Smith did not submit to random urinalyses. Days before the termination trial, Smith pled

guilty to possession of methamphetamine.




                                             22
No. 36423-2-III
In re Parental Rights to D.J.S.


       Based on Smith’s erratic behavior, the Center for Alcohol and Drug Treatment

caused a mental health provider to conduct an assessment. Smith agreed to participate in

the evaluation, but terminated the evaluation after ten minutes and demanded an attorney.

DSHS also referred James Smith to mental health treatment at Catholic Family Services.

       James Smith contends that DSHS failed in its obligation to provide housing.

He argues that he needed housing not only for shelter and because the disposition order

required housing services, but also because gaining housing plays an integral role in one’s

recovery from substance abuse. Smith complains that Darin Petersen exerted insufficient

effort to assist Smith in procuring housing when Petersen only provided Smith a phone

number to call and informed him that DSHS might subsidize housing. In response, DSHS

contends it fulfilled its duty to afford housing services by supplying the phone number.

DSHS’s response assumes that the parent must also exert efforts in order to gain housing.

       We find confusing the testimony of Darin Petersen as to the extent that DSHS

assisted James Smith in procuring housing. The testimony suggests that Petersen, on

behalf of DSHS, gave Smith only a phone number to call and that someone answering

the phone would give Smith a list of possible low income housing providers or shelters.

       We find no Washington decision that addresses the extent to which DSHS must

assist a parent in procuring housing. In finding of fact 2.12.1, the trial court found that


                                             23
No. 36423-2-III
In re Parental Rights to D.J.S.


DSHS provided sufficient housing services presumably because of supplying James

Smith a phone number to call. Since no testimony or state case law suggests that DSHS

must exert additional efforts, we conclude that sufficient evidence supported the trial

court’s finding.

       Issue 2: Whether substantial evidence supports the trial court’s finding that

provision of parenting classes would have been fruitless.

       Answer 2: Yes.

       Despite DSHS’s violation of the order for offering parenting classes, we affirm the

trial court’s holding that the State complied with RCW 13.34.180(1)(d). We rely on the

rule that DSHS need not afford futile services. The futility doctrine allows the trial court

to terminate parental rights if either (1) the services would have been futile when offered

or (2) offering the services would not remedy the parental deficiencies within the child’s

foreseeable future. In re Welfare of Hall, 99 Wn.2d 842, 850-51, 664 P.2d 1245 (1983).

In other words, when the record establishes that the offer of services would be futile, the

trial court can make a finding that DSHS has offered all reasonable services. In re

Parental Rights to K.M.M., 186 Wn.2d at 485 (2016).

       The evidence established that the offer of parenting services concurrent with

substance abuse treatment would have been futile. Darin Petersen and Brandy West


                                             24
No. 36423-2-III
In re Parental Rights to D.J.S.


testified that Smith could not benefit from parenting education until he achieved sobriety.

Smith would likely have difficulties learning and retaining information from parenting

education until sober. Substantial evidence supports the trial court’s finding of fact

2.12.2 that Smith likely would not have benefited from education until he gained sobriety.

Because of Smith’s continued substance abuse, Smith would not have corrected his

parental deficiencies within the foreseeable future.

       Issue 3: Does sufficient evidence support the trial court’s finding that the State

engaged in active efforts, under ICWA and WICWA, to provide services designed to

prevent the breakup of a Native American family and that that those efforts proved

unsuccessful?

       Answer 3: No.

       Our examination of whether DSHS provided services to James Smith required

under RCW 13.34.180(1)(d) does not end the question of whether DSHS fulfilled all

services required before terminating the parental rights of Native American Smith to his

son, Dennis. We must also ask whether DSHS complied with law applicable to Native

American children, particularly the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.

§§ 1901-1963, and the Washington State Indian Child Welfare Act (WICWA), chapter

13.38 RCW. Both impose more exacting standards on the termination of parental rights


                                             25
No. 36423-2-III
In re Parental Rights to D.J.S.


to a Native American child. In re Adoption of T.A.W., 186 Wn.2d 828, 841, 383 P.3d 492

(2016). James Smith claims DSHS failed to fulfill two identical provisions of the state

and federal acts, the laws’ active efforts obligation and the serious emotional or physical

harm requirement. We address the active efforts prerequisite first.

       The United States Congress enacted ICWA in 1978 because of the

disproportionately high rate of forced removal of Native American children from their

traditional homes and their Native American cultures. Before enactment, states forcibly

removed as many as 35 percent of all Indian children, mostly from intact American Indian

families with extended family networks, and placed them in predominantly non-Indian

homes, which had no relation to American Indian cultures. 25 U.S.C. § 1901(4); Troy R.

Johnson, The State and the American Indian: Who Gets the Indian Child?, 14 WICAZO SA

REV. 197, 208 (1999). The per capita rate of Indian children in foster care was fifteen

times higher than the rate for non-Indians. 25 U.S.C. § 1901(4); H.R. REP. NO. 95-1386,

at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7531. The removal demonstrated lack

of understanding by child welfare workers of the role of extended families in tribal

culture and threatened tribal survival by removing children at such a high rate. The

process damaged the emotional lives of Native American children, who lost touch with

their people and culture. RED POWER: THE AMERICAN INDIANS’ FIGHT FOR FREEDOM 124


                                             26
No. 36423-2-III
In re Parental Rights to D.J.S.


(Alvin M. Josephy Jr. et al. eds., 2d ed. 1999). Congress deemed the interests of tribal

stability as important as the best interests of the child. RED POWER, supra, at 124.

Congress also concluded that the best interests of Native American children did not

necessarily echo the best interests of non-Native American children, since the former

traditionally enjoy larger extended families and tribal relationships in their culture.

B.J. JONES, MARK TILDEN & KELLY GAINES-STONER, THE INDIAN CHILD WELFARE ACT

HANDBOOK: A LEGAL GUIDE TO THE CUSTODY AND ADOPTION OF NATIVE AMERICAN

CHILDREN 12-13 (2d ed. 2008).

       ICWA applies to child custody proceedings, which include actions to terminate

parental rights. 25 U.S.C. § 1903(1)(ii). Among other requirements, ICWA mandates

that the Native American nation, or the United States Department of the Interior’s Bureau

of Indian Affairs, be notified of pending child dependency proceedings; and it grants the

child’s Native American nation the right to intervene in state court proceedings.

25 U.S.C. §§ 1911(c), 1912(a).

       After adoption by the United States Congress of ICWA, the Washington State

Legislature passed its own version of the act. Both the federal act and state act overlap in

their provisions. Washington courts interpret the acts “as analogous and conterminous

unless one provides greater protection, in which case the more protective act will supplant


                                              27
No. 36423-2-III
In re Parental Rights to D.J.S.


the less protective act.” In re Adoption of T.A.W., 186 Wn.2d 828, 844 (2016); see also

25 U.S.C. § 1921.

       A critical section of ICWA declares:

              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.

25 U.S.C. § 1912(d) (emphasis added). A similar provision of WICWA reads:

       A party seeking to effect an involuntary foster care placement of or 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.

RCW 13.38.130(1) (emphasis added).

       Neither 25 U.S.C. § 1912(d) nor RCW 13.38.130(1) identify the level of proof

needed to show active efforts. State courts split as to the burden of proof imposed on the

State to establish the exertion of active efforts under 25 U.S.C. § 1912(d). Some courts,

while relying on the provisions of 25 U.S.C. § 1912(f) that demand the State show harm

to the child beyond a reasonable doubt, hold that the State must also show active efforts

beyond a reasonable doubt. In re Matter of K.L., 2019 MT 256, ¶28, 397 Mont. 446,

451 P.3d 518 (2019); In re Interest of J.L.C., 582 S.W.3d 421, 433 (Tex. Ct. App. 2018);


                                              28
No. 36423-2-III
In re Parental Rights to D.J.S.


In re Welfare of M.S.S., 465 N.W.2d 412, 417-18 (Minn. Ct. App. 1991); People in re

Interest of S.R., 323 N.W.2d 885, 887 (S.D. 1982). Other courts impose a clear, cogent,

and convincing evidence burden of proof. In re Child of Radience K., 2019 ME 73, ¶23,

208 A.3d 380, 389 (Maine 2019); In re Beers, 325 Mich. App. 653, 661 n.3, 680, 926

N.W.2d 832 (2018); In re A.C., 239 Cal. App. 4th 641, 651, 191 Cal. Rptr. 3d 701 (2015);

State, ex rel. Children, Youth & Families Department v. Yodell B., 2016-NMCA-029,

¶16, 367 P.3d 881, 885 (N.M. Ct. App. 2015); In re Doe, 157 Idaho 920, 342 P.3d 632,

636 (2015); People ex rel. C.Z., 262 P.3d 895, 904-05 (Colo. App. 2010). Alaska, which

leads the nation in interpreting ICWA, initially imposed a preponderance of the evidence

standard. K.N. v. State, 856 P.2d 468, 476 (Alaska 1993). Alaska has now adopted the

clear, cogent, and convincing evidence burden. Bob S. v. State, 400 P.3d 99, 106 (Alaska

2017).

         Our sister division in In re Dependency of A.M., 106 Wn. App. 123, 134-35,

22 P.3d 828 (2001), adopted the clear, cogent, and convincing evidence standard as best

reflective of the standards for the provision of services. The standard correlates to the

provision of services under RCW 13.34.180(1)(d). We agree and also adopt this burden

of proof.

         The federal statute does not define “active efforts.” Nevertheless, in 2016, the


                                              29
No. 36423-2-III
In re Parental Rights to D.J.S.


Bureau of Indian Affairs issued guidance, with legislative rule 25 C.F.R. § 23.2, in

interpreting the term. The rule notes that “active efforts” means

              affirmative, active, thorough, and timely efforts intended primarily to
       maintain or reunite an Indian child with his or her family. [The efforts]
       must involve assisting the parent . . . through the steps of a case plan and
       with accessing or developing the resources necessary to satisfy the case
       plan.

25 C.F.R. § 23.2. The rule also provides eleven examples of “active efforts,” which

include:

               (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;
               (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;

                                            30
No. 36423-2-III
In re Parental Rights to D.J.S.


              (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;
              (11) Providing post-reunification services and monitoring.

25 C.F.R. § 23.2. Under federal law, DSHS must engage in active efforts “tailored to the

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

       WICWA, unlike ICWA, defines “active efforts.” Under the state definition,

DSHS must

              make 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. At a minimum “active efforts” shall
       include:
              ....
              In any termination of parental rights proceeding regarding an Indian
       child under chapter 13.34 RCW in which the department or supervising
       agency provided services to the parent, parents, or Indian custodian, a
       showing to the court that the department or supervising agency social
       workers actively worked with the parent, parents, or Indian custodian to
       engage them in remedial services and rehabilitation programs ordered by
       the court or identified in the department or supervising agency’s individual
       service and safety plan beyond simply providing referrals to such services.

RCW 13.38.040(1)(a)(iii).


                                            31
No. 36423-2-III
In re Parental Rights to D.J.S.


       The State argues that, if it proves fulfillment of the services provision of RCW

13.34.180(1)(d), it also satisfies the “active efforts” requisite of ICWA and WICWA.

We agree with the State that In re Dependency of A.M., 106 Wn. App. 123 (2001) stands

for this proposition. Division One of this court, in Dependency of A.M., concluded that

RCW 13.34.180(1)(d) imposes a more rigid standard than the ICWA rule of active

efforts. 106 Wn. App. at 134. The court reasoned that, whereas 25 U.S.C. § 1912(d) only

requires evidence that active efforts have been exerted to provide remedial services and

rehabilitative programs designed to prevent the breakup of the Indian family and that

these efforts have proved unsuccessful, RCW 13.34.180 requires that all ordered and

necessary services, reasonably available, capable of correcting the parental deficiencies in

the foreseeable future be offered or provided. In re Dependency of A.M., 106 Wn. App.

at 134-35. Division Two of this court in In re Welfare of L.N.B.-L., 157 Wn. App. 215,

249 n.33, 237 P.3d 944 (2010), impliedly agreed that the remedial services requirement of

RCW 13.34.180(1)(d) places a more strenuous burden on the State than 25 U.S.C. §

1912(d).

       We depart from our sister divisions. RCW 13.34.180(1)(d) uses variant language

from WICWA and ICWA. Our statute includes no adjective similar to “active.” The

statutory subsection demands the provision of services, but imposes no standard as to the


                                            32
No. 36423-2-III
In re Parental Rights to D.J.S.


amount of exertion when supplying the services. Conceivably, DSHS could comply with

RCW 13.34.180(1)(d) by supplying ordered and necessary services solely on the basis of

passive efforts.

       “Active efforts” implies more than the passive efforts often deemed acceptable

under RCW 13.34.180(1)(d). More importantly, the Washington State Supreme Court

has observed that ICWA demands a higher burden of proof before the trial court may

terminate the relationship between a Native American child and his parent. In re

Adoption of T.A.W., 186 Wn.2d 828, 842 (2016). Although this observation from the

high court does not expressly state that the active efforts rule demands a higher burden,

the implication is present. If active efforts do not mean any exertions beyond that

demanded by RCW 13.34.180, the state legislature served no purpose by adopting

WICWA. Despite its legal position, the State may impliedly agree that the active efforts

standard imposes additional duties on DSHS because in this case the State argues that

DSHS performed more efforts for James Smith than simply referring him to services.

       Other states have held that ICWA’s demand of “active efforts” imposes a higher

responsibility than their respective state laws requiring services before termination of

parental rights. In re Matter of K.L., 2019 MT 256 at ¶¶ 24, 28 (Montana 2019); In re

Beers, 325 Mich. App. 653, 658-59 (2018); State in Interest of P.F., 2017 UT App. 159,


                                             33
No. 36423-2-III
In re Parental Rights to D.J.S.


¶32, 405 P.3d 755 (Utah Ct. App. 2017); In re A.C., 239 Cal. App. 4th 641, 656 (2015);

State, ex rel. Children, Youth & Families Department v. Yodell B., 2016-NMCA-029 at

¶¶ 17-20 (N.M. Ct. App. 2015); In re Doe, 342 P.3d 632, 637 (Idaho 2015); In re E.G.M.,

230 N.C. App. 196, 209-11, 750 S.E.2d 857 (2013); People ex rel. P.S.E., 2012 SD 49,

¶16, 816 N.W.2d 110, 115 (S.D. 2012); People ex rel. C.Z., 262 P.3d 895, 906 (Colo.

App. 2010). Active efforts require that the caseworker take a more proactive approach

with clients and actively support the client in complying with the service plan rather than

requiring the service plan be performed by the client alone. In re JL, 483 Mich. 300, 321-

22, 770 N.W.2d 853 (2009). “Active efforts” require affirmative, as opposed to passive

efforts, and “active efforts” require more than the standard “reasonable efforts.” In re

Beers, 325 Mich. App. 653, 680 (2018). As opposed to passive efforts, such as simply

developing a plan for the parent to follow, active efforts require that a caseworker

actually help the parent develop the skills required to keep custody of the children. In re

Doe, 342 P.3d at 637 (Idaho 2015).

       One court mentioned that active efforts requires more than pointing the parent in

the right direction. Active efforts requires leading the horse to water. State, ex rel.

Children, Youth & Families Department v. Yodell B., 2016-NMCA-029 at ¶17 (N.M. Ct.

App. 2015). An ICWA expert went further and characterized active efforts as leading a


                                             34
No. 36423-2-III
In re Parental Rights to D.J.S.


horse to water and then making it drink, even by pushing its head into the water. State in

Interest of P.F., 2017 UT App. 159 at ¶14 (Utah Ct. App. 2017).

       The court adjudges each ICWA case in accordance with the circumstances of the

case. Bill S. v. Department of Health & Social Services, 436 P.3d 976, 981 (Alaska

2019); In re A.C., 239 Cal. App. 4th at 657 (2015). When determining whether the State

made active but unsuccessful efforts, courts may look to the State’s involvement in its

entirety. Bob S. v. State, 400 P.3d at 107 (Alaska 2017). The State need not exert ideal

efforts, but the court should decide if the State crossed the threshold between passive and

active efforts. Bob S. v. State, 400 P.3d at 107. We will later address whether the futile

efforts rule applies to ICWA cases. For purposes of determining whether the State

engaged in active efforts, the court should weigh a parent’s demonstrated lack of

willingness to participate in treatment. Bob S. v. State, 400 P.3d at 107.

       Other states have provided some flesh to the bone of “active efforts.” The foster

care manual for Michigan’s Department of Human Services references examples of active

efforts as including taking parents to initial appointments and assisting with the intake

process, transporting the parent, assisting with completing applications, and providing

phone availability. In re JL, 483 Mich. at 321-22 (2009). The state agency must develop

and implement a family reunification plan. In re A.C., 239 Cal. App. 4th at 657 (2015).


                                             35
No. 36423-2-III
In re Parental Rights to D.J.S.


The agency must maintain reasonable contact with the parent during the service plan.

In re A.C., 239 Cal. App. 4th at 657.

       “Active efforts” requires more than a referral to a service. In re Beers, 325 Mich.

App. 653, 680 (2018). The client should not be required to develop his or her own

resources toward bringing the plan to fruition. Bill S. v. Department of Health & Social

Services, 436 P.3d 976, 981 (Alaska 2019). The State’s efforts are passive when it

requires the parent to perform ordered tasks on his own or with his own resources. Denny

M. v. State, Department of Health & Social Services, 365 P.3d 345, 350 (Alaska 2016).

Active efforts required by ICWA entail timely and affirmative steps to remedy problems

that might lead to severance of the parent-child relationship. In re K.B., 173 Cal. App.

4th 1275, 1288, 93 Cal. Rptr. 3d 751 (2009). ICWA requires when a parent fails to

engage satisfactorily with a caseworker, the caseworker still must try to engage the

parent. In re Matter of K.L., 2019 MT 256 at ¶37 (Montana 2019). The active efforts

standard requires that some of the efforts should be culturally relevant. People ex rel.

C.Z., 262 P.3d at 906 (Colo. App. 2010).

       In Bill S. v. Department of Health & Social Services, 436 P.3d at 980 (Alaska

2019), the State flew each parent over the Alaskan tundra to visit the children. In Denny

M. v. State, Department of Health & Social Services, 365 P.3d at 350 (Alaska 2016), the


                                             36
No. 36423-2-III
In re Parental Rights to D.J.S.


State paid for cab vouchers to all referred services and visitation because of Denny’s

inability to navigate the bus system. In In re A.C., 239 Cal. App. 4th 641, 657 (2015), the

California agency provided the father transportation tokens to visit the child. In In re

Child of Radience K., 2019 ME 73 at ¶27, 208 A.3d at 391 (Maine 2019), the State

helped to provide the mother with transportation to attend the services provided to her,

and assisted the father in securing a counselor willing to provide services at the jail. In In

Matter of A.L.D., 2018 MT 112, ¶6, 391 Mont. 273, 417 P.3d 342 (2018), the State

offered to make the appointments for the Native American parent for chemical

dependency testing. In People ex rel. C.Z., 262 P.3d 895, 906 (Colo. App. 2010), the

State offered to assist the parent in applying for housing. In Jude M. v. State, 394 P.3d

543, 556 (Alaska 2017), the State arranged for telephonic visits between the child and the

incarcerated parent.

       In In re Welfare of L.N.B.-L., 157 Wn. App. 215 (2010), DSHS assisted the parents

with obtaining housing at an apartment complex and helped them pay the first month’s

rent. DSHS also provided skills training, a public health nurse, and transportation.

       In State, ex rel. Children, Youth & Families Department v. Yodell B., 2016-

NMCA-029 at ¶¶ 21-29 (N.M. Ct. App. 2015), the New Mexico Court of Appeals held

that the State failed to engage in active efforts. The State took the affirmative steps of


                                             37
No. 36423-2-III
In re Parental Rights to D.J.S.


meeting with the father to create a treatment plan and referring the father to a parenting

class. Nevertheless, the State did little else to assist the father in implementing the

treatment plan. The State took a passive role by shouldering the father with the burden of

not only independently locating and obtaining services, but also ensuring the service

providers were communicating with the State about his progress. The State argued that

its efforts were reasonable and active, given the father’s failure to maintain contact with

the State, to meaningfully engage in his treatment plan, and to establish a relationship

with the child. Nevertheless, a parent’s failure to engage in or complete a treatment

program did not excuse an initial failure by the State to make active efforts.

       In In re Welfare of A.L.C., 8 Wn. App. 2d 864, 439 P.3d 694 (2019), Division Two

of this court reversed the trial court’s ruling that DSHS engaged in active efforts. DSHS

had provided a referral for the parent for an ordered domestic violence assessment, but

did nothing further to assist the parent in obtaining the assessment. ICWA requires more

than referrals. DSHS recognized that the parent’s lack of housing contributed to the need

for the dependency. Nevertheless, DSHS did not assist the parent in identifying housing

resources, much less assist the parent with utilizing and accessing the resources.

       James Smith argues that DSHS failed to comply with the active efforts prerequisite

in the following manners:


                                              38
No. 36423-2-III
In re Parental Rights to D.J.S.


              1. DSHS failed to assign anyone with Native American background

       or understanding to assist him.

              2. DSHS failed to provide a Native American mental health

       counselor.

              3. DSHS took no steps to soften James Smith’s belief, based on his

       Native American background, that the State had no right to intervene, and

       DSHS exerted no effort to minimize Smith’s resistance to assistance.

              4. DSHS did not actively seek housing for James Smith.

              5. DSHS sent James Smith to a generic chemical dependency

       treatment provider rather than one geared toward Native Americans.

       We observe that DSHS, in 2016 and 2017, notified the Oglala Sioux Tribe three

times total of the pending dependency proceedings involving James Smith and his son.

The Native American nation did not respond. In a Nebraska case, the Oglala Sioux

participated in a child dependency action. In re Interest of Mercedes L., 26 Neb. App.

737, 923 N.W.2d 751 (2019). The Oglala Sioux’s land in South Dakota borders

Nebraska. Perhaps the geographic distance made a difference in Dennis Smith’s case.

       After the first termination trial, DSHS notified the Oglala Sioux Tribe of the

pending termination proceeding. DSHS sent James Smith’s records to the Native


                                            39
No. 36423-2-III
In re Parental Rights to D.J.S.


American nation, presumably at the request of the Oglala Sioux. Nevertheless, despite

calls from the DSHS Indian child welfare expert, the Oglala Sioux never intervened or

showed interest in the proceeding.

       We read from the law an overarching requirement in ICWA and WICWA that

DSHS cooperate with a Native American child’s and parent’s Native American nation in

attempting to arrange for culturally acceptable and valuable services in correcting parental

deficiencies. We question, though, what additional steps DSHS must exert in providing

culturally relevant services when a federally recognized sovereign Native American

nation refuses to respond to overtures from DSHS. We know of no obligation that DSHS

contact the Bureau of Indian Affairs to inquire if some other Native American nation

would assist in identifying or providing culturally appropriate services. But we wonder if

DSHS should have at least discussed with its Indian child welfare expert, Brandy West, as

to other Native American networks that could have afforded assistance and services for

James Smith. Smith never asked for culturally relevant services or identified Native

American sources for services, but active efforts implies DSHS initiating an investigation

into culturally helpful services regardless of whether the parent remains mute.

       We still agree with James Smith that DSHS did not engage in active efforts.

DSHS avows that Darin Petersen often met with Smith and reviewed plans with Smith.


                                            40
No. 36423-2-III
In re Parental Rights to D.J.S.


Nevertheless, meeting with the parent to discuss services does not constitute active

efforts. While Petersen accompanied Smith to an office and provided instructions on how

to get a phone, Petersen should have ensured that Smith actually garnered a phone. When

assisting Smith in procuring housing, Petersen explained to Smith that the community

housing network was a “one stop shopping” resource for all low income housing and

shelters in the area. 1 RP at 63. Nevertheless, Petersen should have taken Smith to the

network and helped Smith complete any application. Petersen’s testimony that Smith

needed to learn on his own how to find housing and thereby become independent

illustrates DSHS’s misunderstanding of active efforts. Petersen provided the address for

Catholic Family Services for purposes of Smith gaining mental health counseling.

Petersen should have taken Smith to the service center and assisted in procuring

counseling. Active efforts means more than just making referrals.

       The State highlights that Darin Petersen testified James Smith could access the

services ordered because all services were in his community and accessible by public

transportation. In turn, according to Petersen, Smith admitted he could gain

transportation to the services. Again, the State fails to recognize the high measure of

responsibility meted by ICWA. Petersen should have followed up with Smith to ensure

he gained transportation. Petersen should have led Smith to the bus and sat him inside.


                                            41
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       DSHS boasts that it conducted a diligent search for family members of James

Smith, who presumably would be Native Americans. We question the diligence of the

search. DSHS provided no details of the extent of the search, other than attempting

contact with Smith’s sister and mother. We do not even know if DSHS had correct

contact information for the relatives.

       The trial court found that DSHS engaged in active efforts. According to one

Washington decision, the trial court’s finding of active efforts is a conclusion of law that

we review de novo. In re Welfare of A.L.C., 8 Wn. App. 2d 864, 871 (2019). We deem

the Alaska and California approach to findings and conclusions better, however. Whether

the State made active efforts as required by ICWA is a mixed question of law and fact.

Bill S. v. Department of Health & Social Services, 436 P.3d 976, 981 (Alaska 2019); In re

K.B., 173 Cal. App. 4th 1275, 1286 (2009). We review the underlying findings for

substantial evidence, but review de novo whether those findings satisfy the requirements

of ICWA. Bill S. v. Department of Health & Social Services, 436 P.3d at 981; In re K.B.,

173 Cal. App. 4th at 1286. We conclude that the trial court’s underlying findings here as

to the steps taken by DSHS do not qualify as active efforts as a matter of law.

       ICWA does not require that a Native American expert testify that the State exerted

active efforts. In re K.B., 173 Cal. App. 4th at 1287 n.12. Nevertheless, Brandy West,


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DSHS’s Indian child welfare expert, testified that DSHS performed active efforts. We do

not find her testimony helpful. West provided a definition of active efforts that

emphasized face to face meetings and referrals to services, not leading James Smith to

services and immersing him in the services.

       Issue 4: Whether the futile effort doctrine applies to the failure to exert active

efforts under ICWA?

       Answer 4: Yes.

       The State impliedly contends, when it argues that further efforts and services

would not have benefited James Smith, that active efforts would have been futile. Thus,

we first address whether a state agency may excuse its failure to exercise active efforts on

the basis that the additional efforts would have been futile.

       One state high court has ruled that the futile efforts doctrine does not apply to the

active efforts measure under ICWA. In re JL, 483 Mich. 300, 326-27 (2009). The

Michigan court worried that courts would simply avoid applying 25 U.S.C. § 1912(d) by

deciding that the additional services would be futile. We reject this reasoning as failing

to credit the abilities of trial court judges, and as failing to recognize the role of the

appellate courts, in ensuring that trial courts apply the ICWA standard of active efforts.




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       ICWA is not a statute that provides a parent of an Indian child with perpetual

chances for rehabilitation. In re Dependency of A.M., 106 Wn. App. 123, 135 (2001).

Therefore, this court has adopted the futile efforts rule for purposes of active efforts under

U.S.C. § 1912(d). In re Dependency of A.M., 106 Wn. App. 123, 136. The Washington

rule follows the prevailing rule. Bill S. v. Department of Health & Social Services, 436

P.3d 976, 983 n.26 (Alaska 2019); State in Interest of M.D., 2016 UT App. 3, ¶6, 366

P.3d 408 (Utah Ct. App. 2016); In re E.G.M., 230 N.C. App. 196, 210 (2013); People ex

rel. C.Z., 262 P.3d 895, 905 (Colo. App. 2010); In re K.B., 173 Cal. App. 4th 1275, 1284

(2009). The rule embraces the underlying principle of law that does not require the

performance of idle acts. In re E.G.M., 230 N.C. App. at 210.

       The State may be excused from active efforts because a parent’s evasive or

combative conduct rendered provision of services practically impossible. Bill S. v.

Department of Health & Social Services, 436 P.3d 976, 983 n.26 (Alaska 2019). If the

parent has a long history of refusing treatment and continues to refuse treatment, the

agency need not keep up active efforts once it is clear the efforts would be futile. Bill S.

v. Department of Health & Social Services, 436 P.3d at 983 n.26.

       In In re Dependency of A.M., 106 Wn. App. 123, 135-37 (2001), this court applied

the futility doctrine because of a Native American parent’s untimely termination of


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detoxification treatment, resumption of a lifestyle of drug use and crime, and voluntary

disappearance for a substantial period of time in total disregard for parenting obligations.

       Issue 5: Does the futility doctrine apply in favor of the State of Washington in the

termination of James Smith’s parental rights?

       Answer 5: The trial court did not enter any finding as to whether exerting active

efforts under ICWA would have prevented termination or would have been futile.

Therefore, we remand for further proceedings to address this question.

       When impliedly arguing that active efforts would be futile, the State emphasizes

that James Smith denied any methamphetamine use. He aborted treatment at a chemical

dependency facility, at which time he also abandoned the facility’s attempt to procure

mental health counseling for him. Nevertheless, although the trial court found futility in

regard to the services ordered under state law, the trial court entered no finding that the

additional and active efforts demanded by ICWA would be futile. Therefore, we remand

to the trial court to address whether additional efforts would have been worthless. The

trial court may also further explore whether DSHS engaged in active efforts.

       We deem In re E.G.M., 230 N.C. App. 196 (2013) instructive. North Carolina’s

Jackson County Department of Social Services sought excusal from any failure to

exercise active efforts on the basis that additional measures would have been futile.


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Nevertheless, the trial court never entered a finding that active efforts would be futile.

Although the record may have supported a determination that further efforts would be

futile, the trial court needed to make proper factual findings based on the record evidence.

The reviewing court reversed and remanded the termination of parental rights for entry of

an order containing proper findings and conclusions. The appellate court authorized the

trial court, within its sound discretion, to receive additional evidence on the issue.

       Issue 6: Did sufficient evidence support the trial court’s finding that continuation

of the parent-child relationship clearly diminished Dennis’s prospects for early

integration into a stable and permanent home?

       Answer 6: Yes.

       James Smith next argues that DSHS failed to present clear, cogent, and convincing

evidence to satisfy RCW 13.34.180(1)(f). In a related argument, Smith contends the trial

court’s finding of fact 2.14 is inadequate to permit meaningful review. In finding of fact

2.14, the trial court found that Dennis would likely be adopted and Dennis could not gain

permanency without termination of Smith’s parental rights.

       RCW 13.34.180(1)(f) requires DSHS to prove that “continuation of the parent

and child relationship clearly diminishes the child’s prospects for early integration into

a stable and permanent home.” Termination element (f) measures parental unfitness


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by examining whether the parental relationship impedes the child’s welfare by

diminishing the child’s chances of entering into an enduring home. In re Parental

Rights to J.B., 197 Wn. App. 430, 438-39, 387 P.3d 1152 (2016). DSHS can satisfy

RCW 13.34.180(1)(f) in one of two ways. First, DSHS can prove prospects for a

permanent home exist but the parent-child relationship prevents the child from obtaining

that placement. In re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d 620 (2013).

In the alternative, DSHS can prove the parent-child relationship has a damaging and

destabilizing effect on the child that would negatively impact the child’s integration into

any permanent and stable placement. In re Welfare of R.H., 176 Wn. App. at 428.

       Strong evidence supports a finding that a continuing relationship between Dennis

and James Smith would impede Dennis’s opportunity for a permanent and stable home.

Apart from Dennis’s seventy to seventy-five days at the hospital beginning at birth,

Dennis has lived in the same pre-adoptive home his entire life. Dennis’s fragile health

prevented Smith from sometimes visiting Dennis, but, even during the times of

permissible visitation, Smith rarely visited his son. Thus, the two achieved little, if any,

bonding. Smith refuses to engage in services.

       Dennis needs constant care because of special medical and behavioral needs.

Foster parents provide this care for Dennis, and the foster parents will adopt Dennis.


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       Issue 7: Whether substantial evidence supports the trial court’s finding that

termination of James Smith’s parental rights is in Dennis’s best interest?

       Answer 7: Yes.

       In addition to finding the six elements of RCW 13.34.180(1) by clear, cogent,

and convincing evidence, in order to terminate parental rights, the trial court must also

find by a preponderance of the evidence that termination serves the child’s best interests.

RCW 13.34.190(1)(b). This inquiry is fact specific. In re Dependency of A.M., 106 Wn.

App. 123, 131 (2001).

       James Smith contends that DSHS failed to present and the trial court failed to

consider, Dennis’s Native American heritage when it found termination to further the

child’s best interests. To support his argument, Smith only cites an amicus brief filed in

Adoptive Couple v. Baby Girl, 570 U.S. 637, 133 S. Ct. 2552, 186 L. Ed. 2d 729 (2013).

Based on the brief, Smith asserts that Native American children encounter difficulty in

adulthood if removed from their Indian families and adopted by non-Native families.

       We decline to address James Smith’s argument. RAP 10.3(a)(6) directs each party

to supply, in its brief, “argument in support of the issues presented for review, together

with citations to legal authority and references to relevant parts of the record.” This court

does not consider conclusory arguments unsupported by citation to authority. Joy v.


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Department of Labor & Industries, 170 Wn. App. 614, 629, 285 P.3d 187 (2012).

Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial

consideration. West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012);

Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998). From these

principles, we extract the rule that, if the relevant area of law presents a test or a list of

factors for review, this reviewing court will not address the appellant’s assignment of

error unless the appellant identifies and analyzes the test or factors. Overwhelming

evidence otherwise supported a finding that termination of James Smith’s parental rights

furthered Dennis’s best interests.

       Issue 8: Whether the State established beyond a reasonable doubt that James

Smith’s continued custody of Dennis was likely to result in serious emotional or physical

damage to Dennis?

       Answer 8: Yes.

       James Smith also assigns error to the trial court’s finding that continued custody of

Dennis by his father would result in serious emotional or physical harm to the child.

ICWA declares:

               No termination of parental rights may be ordered in such proceeding
       in the absence of a determination, supported by evidence beyond a
       reasonable doubt, including testimony of qualified expert witnesses, that the


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       continued custody of the child by the parent or Indian custodian is likely to
       result in serious emotional or physical damage to the child.

25 U.S.C. § 1912(f). RCW 13.38.130(3) echoes this requirement. The finding of harm

must also be supported by the testimony of a qualified expert witness. 25 U.S.C. §

1912(f); RCW 13.38.130(3). Smith claims DSHS’s Indian child welfare expert simply

parroted the statutory language and, therefore, the court’s finding under this element is

unsupported by the evidence. We disagree.

       We question whether 25 U.S.C. § 1912(f) or RCW 13.38.130(3) apply to James

Smith’s circumstances. The federal and state statutes refer to “continued custody,” which

assumes the parent once had custody of the child. As a result, the United States Supreme

Court has held that § 1912(f) does not apply in cases when the parent never had custody

of the Indian child. Adoptive Couple v. Baby Girl, 570 U.S. at 641, 647-48 (2013).

Dennis never resided with Smith. We review the trial court’s finding regardless.

       James Smith compares this case with In re Dependency of C.R.B., 62 Wn. App.

608, 814 P.2d 1197 (1991). There, the mother argued on appeal that the testimony

offered against her was insufficient to terminate her parental rights. The court found that

the “‘evidence’” presented by the mother’s caseworker at the termination hearing

consisted of legal conclusions “parroting the language of the statutory requirements found

in RCW 13.34.180.” In re Dependency of C.R.B., 62 Wn. App. at 618. Division One of

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In re Parental Rights to D.J.S.


this court held that, since the trial court’s findings of fact repeated the testimony of the

mother’s caseworker, which consisted of only legal conclusions, the court’s conclusions

were not supported by the facts. In re Dependency of C.R.B., 62 Wn. App. at 619.

       We distinguish James Smith’s appeal from In re Dependency of C.R.B. First,

C.R.B. did not involve an Indian child. Second, the court did not discuss the statutory

elements that apply to the case at bar, RCW 13.38.130(3) and 25 U.S.C. § 1912(f). And

finally, the evidence presented by the Indian child welfare expert in this case, Brandy

West, did not simply consist of legal conclusions.

       Brandy West testified that James Smith never completed any services that would

correct his parental deficiencies. His substance abuse would create a substantial harm to

the child if Smith gained custody. According to West, when somebody has active,

ongoing, and unresolved substance abuse, they will continue to abuse. Smith’s continued

substance abuse would render Smith incapable of meeting Dennis’s basic needs.

                                       CONCLUSION

       We reverse the trial court’s finding that the State offered James Smith all ordered

services, but we affirm the trial court’s finding that the provision of additional ordered

services would have been futile. We reverse the trial court’s finding that the State exerted

active efforts to reunify James Smith and Dennis. We remand to the trial court to


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determine whether additional active efforts would have been futile. When rendering this

determination, the trial court may, at its discretion, entertain additional evidence. We

otherwise affirm the remaining trial court rulings.




                                          Fearing, J.

WE CONCUR:




Siddoway, J.                                                         -~        <




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