       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of      )
                                        ) No. 79227-0-1
A.R.J.H.(DOB: 6/20/2017),               )
                                        ) DIVISION ONE
                     Minor child,       )
                                        )
                                        )
STATE OF WASHINGTON,                    )
DEPARTMENT OF SOCIAL AND                )
HEALTH SERVICES,                        )
                                        )
                     Respondent,        )
                                        ) UNPUBLISHED OPINION
              v.                        )
                                        ) FILED: July 29, 2019
ALONSO ENRIQUE HERNANDEZ,               )
                                        )
                    Appellant.          )
                                        )

      SMITH, J. — Alonso Enrique Hernandez appeals from the order

terminating his parental rights to his daughter A.R.J.H. He argues the trial court

erred in finding that the Department of Social and Health Services (Department)1

had no reason to know A.R.J.H. was an Indian child and that the federal Indian

Child Welfare Act of 1978(ICWA), 25 U.S.C. §§ 1901-1963, and the Washington

Indian Child Welfare Act(WICWA), chapter 13.38 RCW, did not apply to the

proceeding. He also argues the Department failed to prove there was little




      I As of July 1, 2018, the new Department of Children, Youth, and Families
has assumed the functions and duties of the Department of Social and Health
Services related to child welfare services. See RCW 43.216.906.
No. 79227-0-1/2

likelihood his parental deficiencies could be remedied in the near future. For the

reasons that follow, we affirm.

                                      FACTS

       Hernandez is the biological father of A.R.J.H., born June 20, 2017.

Melissa Marie Nichuals is A.R.J.H.'s biological mother. Nichuals did not appear

for trial, and her parental rights were terminated in October 2018. She is not a

party to this appeal.

       On the day A.R.J.H. was born, Hernandez was incarcerated for

possessing a controlled substance. He was released two weeks later but

experienced several additional short periods of incarceration throughout the

duration of the dependency.

       Both parents struggled with long-standing substance use disorders.

Hernandez reported that he used Percocet on a daily basis and that he also used

methamphetamines, marijuana, and alcohol. Nichuals reported daily use of

heroin and methamphetamines. A.R.J.H. was born drug affected and remained

in the hospital for a month after her birth while experiencing symptoms of

withdrawal. At the time of trial, A.R.J.H. still had special needs and required

occupational therapy and physical therapy.

       On July 20, 2017, the Department filed a dependency petition for A.R.J.H.

and removed her from the custody of her parents. The petition alleged that

A.R.J.H. "was removed due to mental health issues, chronic substance abuse

issues, lack of parenting skills, and lack of safe and stable housing." A.R.J.H.

remains in foster care and has not lived with either parent.



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No. 79227-0-1/3

       During the investigation leading up to the dependency, Nichuals reported

having possible Athabascan ancestry from her father. The Department learned

that A.R.J.H.'s maternal grandfather was an enrolled member of

Athabascan/Cook Inlet.2 In June 2017, the Department sent inquiries to the

Bureau of Indian Affairs (BIA) and each relevant individual tribal entity,

requesting assistance in determining whether A.R.J.H. is an "Indian child" subject

to the provisions of ICWA and the Washington Indian Child Welfare Act

(W1CWA). In its dependency petition, the Department indicated that it was not

yet able to determine whether A.R.J.H. was an "Indian child" because several

tribal entities had not responded to its inquiries. The Department continued to

conduct inquiries to those tribal entitles that had not responded.

       After inquiring of each participant present at the shelter care hearing on

July 26, 2017, the court found that "[n]o parent, party, child, tribe, or other

participant has given reason to know that [A.R.J.H.] is a member or eligible for

membership of any federally-recognized Tribe" and that ICWA and WICWA did

not apply to the proceedings.3 The court ordered a drug and alcohol evaluation,

random urinalysis testing, and parenting classes as remedial services for




       2 The Department filed a motion pursuant to RAP 9.11 to supplement the
record with its inquiries to the Bureau of Indian Affairs (BIA) and other tribal
entities, and the tribe's response to those inquiries. A commissioner of this court
referred the motion to the panel determining this case. Because this
supplemental documentation will be helpful in reviewing key issues raised by
Hernandez in his briefing, the motion is granted.
       3 Both Hernandez and Nichuals were present and represented by counsel
at the hearing.
                                          3
No. 79227-0-1/4

Hernandez. In August 2017, Hernandez completed the drug and alcohol

assessment but did not engage in recommended outpatient treatment.

       On September 12, 2017, the court entered an agreed order of

dependency as to both parents. Regarding Hernandez, the court again ordered

as services a drug and alcohol evaluation, random urinalysis testing, and

parenting classes as remedial services. At the first dependency review hearing

on December 14, 2017, the court also ordered Hernandez to participate in a

mental health assessment and Narcotics Anonymous/Alcoholics Anonymous

(NA/AA) meetings.

       Throughout the dependency, Hernandez sporadically engaged in court-

ordered services. He attended a few NA/AA meetings and provided some

urinalysis tests. He also attended some parenting classes but was removed due

to inconsistent attendance. He did not obtain a mental health evaluation or

individual counseling.

       Hernandez did not consistently attend visits with A.R.J.H. Although he

had the opportunity to visit A.R.J.H. two times per week, he typically missed two

or three visits per month. Sometimes he missed visits because he was

incarcerated or unable to obtain transportation. On one occasion, Hernandez

drove Nichuals to a visit but stayed in the car during the visit. When Hernandez

did visit, he often arrived late and left early. Department social worker Francesca

McManus also observed that Hernandez sometimes appeared to be under the

influence during visits.




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No. 79227-0-1/5

       On March 23, 2018, the Department filed a petition to terminate

Hernandez's and Nichuals' parental rights to A.R.J.H. At that point, every

contacted tribal entity except the native village of Eklutna had responded that

A.R.J.H. was not an Indian child. In February 2018 and September 2018, the

Department again sent letters, inquiries, and ancestry charts to the native village

of Eklutna attempting to determine whether A.R.J.H. was an Indian child. The

Department never received a response.

      The Department referred Hernandez for another drug and alcohol

assessment. That assessment recommended inpatient treatment. On

September 18, 2018, Hernandez entered inpatient treatment for substance use

disorder.

      A one-day termination trial was held on October 1, 2018. At that time,

A.R.J.H. was 15 months old and had never lived with either parent. Following

the testimony of four witnesses and the admission of 36 exhibits, the court

entered findings of fact and conclusions of law and entered an order terminating

Hernandez's parental rights. Hernandez appeals.

                                    ANALYSIS

       Parents have fundamental liberty and privacy interests in the care and

custody of their children. In re Welfare of A.J.R., 78 Wn. App. 222, 229, 896

P.2d 1298(1995)(citing In re Dependency of J.B.S., 123 Wn.2d 1, 12, 863 P.2d

1344 (1993)); Santoskv v. Kramer,455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982). But this right is not absolute. See In re Welfare of Sumev, 94

Wn.2d 757, 762, 621 P.2d 108 (1980); Santoskv, 455 U.S. at 766-67. "The


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No. 79227-0-1/6

paramount consideration in a termination proceeding is the child's welfare." In re

Dependency of J.A.F., 168 Wn. App. 653, 668, 278 P.3d 673(2012). Where a

child's rights conflict with the parent's legal rights, the child's rights prevail.

RCW 13.34.020.

       To prevail in a petition to terminate parental rights, the State must prove

the following six statutory elements by clear, cogent, and convincing evidence:

              (a) That the child has been found to be a dependent child;
             (b) That the court has entered a dispositional order pursuant
       to RCW 13.34.130;
              (c) That the child has been removed or will, at the time of the
       hearing, have 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). Clear, cogent, and convincing evidence exists when the

evidence shows the ultimate fact at issue is highly probable. In re Dependency

of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132(1995). If the court finds the State

has met its burden under RCW 13.34.180(1), the court may terminate parental

rights if it finds by a preponderance of the evidence that termination is in the best

interests of the child. RCW 13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d

908, 911, 232 P.3d 1104 (2010).




                                            6
No. 79227-0-1/7

       We review an order terminating parental rights to determine whether

substantial evidence supports the court's findings by clear, cogent, and

convincing evidence. In re Parental Rights to K.M.M., 186 Wn.2d 466, 477, 379

P.3d 75 (2016). We defer to the trial court on issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence. In re Welfare of

S.J., 162 Wn. App. 873, 881, 256 P.3d 470 (2011). Such deference is

particularly important in proceedings affecting the parent and child relationship

because of "the trial judge's advantage in having the witnesses before him or

her." In re Welfare of A.W., 182 Wn.2d 689, 711, 344 P.3d 1186 (2015).

Unchallenged findings of fact are verities on appeal. In re Interest of J.F., 109

Wn. App. 718, 722, 37 P.3d 1227 (2001).

Applicability of ICWA and WICWA

       For the first time on appeal, Hernandez argues that the trial court erred in

finding that ICWA and WICWA did not apply to the termination proceeding.

Applicability of IWCA or WICWA is a question of law reviewed de novo. In re

Adoption of T.A.W., 186 Wn.2d 828, 840, 383 P.3d 492 (2016).

       Congress enacted ICWA in 1978 to "'protect the best interests of Indian

children and to promote the stability and security of Indian tribes and families."

In re Dependency of T.L.G., 126 Wn. App. 181, 186-87, 108 P.3d 156(2005)

(quoting 25 U.S.C.§ 1902). In 2011, Washington enacted the Washington State

Indian Child Welfare Act(WICWA), its own version of ICWA. We apply the

provisions of ICWA and WICWA coextensively unless one provides more




                                         7
No. 79227-0-1/8

protection than the other, in which case we apply the more protective act. In re

Welfare of A.L.C.,       Wn. App.      , 439 P.3d 694,699(2019).

        ICWA grants tribes significant rights, including the right to intervene in

state court proceedings involving termination of parental rights of an "Indian

child." 25 U.S.C. § 1911(c); T.L.G., 126 Wn. App. at 187. Having Native

American ancestry is not enough to establish that a child is an "Indian child" for

the purposes of ICWA and WICWA. Rather, ICWA specifically defines "Indian

child" as "any unmarried person who is under age eighteen and 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).4

        Where the court has "reason to know" that an "Indian child" is involved in a

termination proceeding, ICWA requires that the Department notify the tribe of the

pending proceedings and the tribe's right to intervene. 25 U.S.C. § 1912(a); see

also RCW 13.38.070(1). "Without such notice, the rights guaranteed by the

ICWA are meaningless." In re Welfare of M.S.S., 86 Wn. App. 127, 134, 936

P.2d 36 (1997). Failure to provide proper notice may be grounds for invalidating

the child custody determination. T.L.G., 126 Wn. App. at 192-93; 25 U.S.C.§

1914.




        4WICWA's definition of "Indian child" is nearly identical to ICWA's
definition. See RCW 13.38.040(7)("Indian child' means an unmarried and
unemancipated Indian person who is under eighteen years of age and is either:
(a) A member of an Indian tribe; or (b) eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.").
                                           8
No. 79227-0-1/9

       In June 2016, the BIA promulgated binding regulations establishing the

following factors to be considered in determining whether there is "reason to

know" a child is an "Indian child" for purposes of ICWA:

             (1) Any participant in the proceeding, officer of the court
      involved in the proceeding, Indian Tribe, Indian organization, or
      agency informs the court that the child is an Indian child;
             (2) Any participant in the proceeding, officer of the court
      involved in the proceeding, Indian Tribe, Indian organization, or
      agency informs the court that it has discovered information
      indicating that the child is an Indian child;
             (3) The child who is the subject of the proceeding gives the
      court reason to know he or she is an Indian child;
             (4)The court is informed that the domicile or residence of
      the child, the child's parent, or the child's Indian custodian is on a
      reservation or in an Alaska Native village;
             (5)The court is informed that the child is or has been a ward
      of a Tribal court; or
             (6) The court is informed that either parent or the child
      possesses an identification card indicating membership in an Indian
      Tribe.

25 C.F.R. § 23.107(c).

       If there is "reason to know" the child is an "Indian child" but the court does

not have sufficient evidence to make the determination, the court must confirm

that the agency used "due diligence to identify and work with all of the Tribes of

which there is reason to know the child may be a member (or eligible for

membership), to verify whether the child is in fact a member (or a biological

parent is a member and the child is eligible for membership)." 25 C.F.R.

§ 23.107(b)(1). Similarly, WICWA requires the Department to make a "good faith

effort" to investigate whether the child is an "Indian child." RCW 13.38.050. The

court must treat the child as an "Indian child" unless and until it determines on the

record that the child is not an "Indian child." 25 C.F.R. § 23.107(b)(2).


                                          9
No. 79227-0-1/10

       Hernandez argues that the Department had "reason to know" A.R.J.H. is

an "Indian child" because her maternal grandfather is an enrolled tribal member.

He contends the court had no information from which to conclude that A.R.J.H. is

not an "Indian child" because the Department never received a reply from the

native village of Eklutna and A.R.J.H. might have been a member of that tribal

entity. We disagree.

       The record shows that the Department used due diligence and made good

faith efforts to verify whether A.R.J.H. was an "Indian child." After the

Department learned that A.R.J.H.'s grandfather was an enrolled member of

Athabascan/Cook Inlet, it proactively sent inquiries to the BIA and relevant tribal

entities seeking to determine whether any of them considered A.R.J.H. or her

mother to be members or eligible for-membership. The Department received

responses from every tribal entity except the native village of Eklutna. Prior to

the termination trial, the Department made two additional attempts to contact that

tribal entity, but it never responded. Thus, despite the Department's diligent

efforts, no tribal entities provided the Department or the court with "reason to

know" A.R.J.H. or her mother were members or eligible for membership pursuant

to 25 C.F.R.§ 23.107. The record supports the trial court's finding that A.R.J.H.

was not an "Indian child" for purposes of ICWA and WICWA.

       Hernandez asserts that T.L.G. requires reversal of the termination order.

That case is distinguishable. In T.L.G., the mother informed the Department that

she had been told her biological father was full-blooded Cherokee. T.L.G., 126

Wn. App. at 189. However, she testified that she was neither enrolled in a tribe


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No. 79227-0-1/11

nor a member of a tribe. T.L.G., 126 Wn. App. at 190. Although neither the

Department nor the court provided notice to the tribe or the BIA, the trial court

concluded that ICWA did not apply because the mother was not an enrolled tribal

member and had done nothing to assist the Department in accessing her sealed

adoption records. T.L.G., 126 Wn. App. at 190. On appeal, this court concluded

that the court erred in failing to ensure that the tribes and the BIA received notice

of the termination proceedings:

       But tribal enrollment is not the only means of establishing Indian
       heritage. Nor is [the mother's] belief that she is not a tribal member
       dispositive. Tribes control the rules of their membership, and
       whether [the mother] is a member is a question only the tribe can
       definitively answer.

T.L.G., 126 Wn. App. at 191 (footnote omitted).

       Here, unlike in T.L.G., the Department contacted all potentially relevant

tribes based on A.R.J.H.'s maternal grandfather's reported ancestry. The

concern expressed by the court in T.L.G. is therefore not present here.

Furthermore, T.L.G. was decided prior to promulgation of the 2016 BIA

regulations regarding "reason to know," which are applicable to this case.5

Substantial evidence supports the trial court's finding that ICWA and WICWA did

not apply.




       5 In 1979, the BIA issued nonbinding guidelines to assist state courts in
the implementation of ICWA. See 44 Fed. Reg. 67,584 (Nov. 26, 1979). The
2016 binding regulations replaced those guidelines.

                                         11
  No. 79227-0-1/12

 Little Likelihood that Conditions Will Be Remedied in the Near Future

        The Department must prove "[t]hat there is little likelihood that conditions

 will be remedied so that the child can be returned to the parent in the near

 future." RCW 13.34.180(1)(e). The focus is on whether the identified parental

 deficiencies have been corrected. In re Dependency of T.R., 108 Wn. App. 149,

 165, 29 P.3d 1275 (2001). Even where evidence shows that a parent may

 eventually be capable of correcting deficiencies, termination is appropriate if

 those deficiencies will not be corrected within the foreseeable future. In re

 Welfare of A.G., 155 Wn. App. 578, 590, 229 P.3d 935 (2010). What constitutes

 "near future" necessarily depends on the specific circumstances of each case,

 including the child's age and placement circumstances. In re Welfare of C.B.,

 134 Wn. App. 942, 954, 143 P.3d 846 (2006). A matter of months may be

 outside the foreseeable future for a young child. In re Welfare of M.R.H., 145

 Wn. App. 10, 28, 188 P.3d 510 (2008). "When it is eventually possible but not

 imminent for a parent to be reunited with a child, the child's present need for

 stability and permanence is more important and can justify termination." C.B.,

 134 Wn. App. at 958-59.

        Hernandez argues that substantial evidence did not support the court's

 finding that there was little likelihood conditions will be remedied so that A.R.J.H.

 can be returned to him in the near future. Specifically, he contends that he is on

- the road to recovery and will be ready to parent A.R.J.H. within six months. The

 trial court's findings to the contrary are supported by substantial evidence.




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No. 79227-0-1/13

       At the time of trial, A.R.J.H. was 15 months old. The court found that

Hernandez "is on the right track by attending treatment, but he is at an early

stage of recovery and has a long way to go to address these issues." The court

found that it would be 12 or more months to reunification and that this time frame

was too long for A.R.J.H., who has been in foster care for her entire life and is

bonding with her caregivers. The court further found that waiting this long would

be detrimental to A.R.J.H. and that her foreseeable future is now.

       McManus testified that during the dependency, Hernandez was in and out

of jail, lacked a reliable place to live, and spent the majority of his time attempting

to locate and buy drugs. She testified that even if Hernandez engaged in all

recommended services, it would be at least a year until A.R.J.H. could be

returned to his care full-time. She further testified that it would be inappropriate

to move A.R.J.H. from a family that she has bonded with and considers her own.

Department social worker Bri Gilbert also testified that if Hernandez engaged in

all services and showed progress and compliance, it would be an "absolute

minimum" of six months to a year until A.R.J.H. could be returned to his care.

And A.R.J.H.'s guardian ad litem, Julie Kerr, testified that she did not anticipate

Hernandez would be able to parent A.R.J.H. for six to nine months. Kerr

believed that A.R.J.H. could not wait that long and that termination of parental

rights was in her best interest.

       Hernandez asserts that the facts of his case are analogous to In re

Welfare of C.B., 134 Wn. App. 942, 143 P.3d 846 (2006). In C.B., the

Department removed the children from the mother due to her lengthy struggle


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No. 79227-0-1/14

with drug and alcohol addiction. 134 Wn. App. at 948. Although her recovery

was initially slow, she eventually began engaging in services and made

"remarkable" progress. C.B., 134 Wn. App. at 948. By the time of trial, she had

completed a recommended parenting classes and nearly completed a substance

abuse treatment program, and there was undisputed evidence that she was

doing well in her recovery. C.B., 134 Wn. App. at 947-48. The Department

argued this was insufficient progress to demonstrate that the mother would likely

remedy conditions in the near future, which was six months to a year. C.B., 134

Wn. App. at 946, 953. The appellate court held that "where a parent produces

evidence that she has been improving over a four-month period after the State

files a termination petition but before the termination hearing, the State may not

rely solely on past performance to prove that it is highly probable that there is

little likelihood that the parent will be reunited with her children in the near future."

C.B., 134 Wn. App. at 953.

       Here, unlike the mother in C.B., Hernandez did not present concrete

evidence of recent, steady improvement. He failed to attend outpatient treatment

during the dependency and entered inpatient treatment for his long-standing

substance abuse issues only two weeks prior to the termination trial. He had

never completed a parenting class or participated in a mental health assessment

or individual counseling. Nor had he secured safe and stable housing for

A.R.J.H. Although he testified that his substance abuse issues arose just a few

years prior to trial, his criminal history indicated use and abuse of substances

since at least 2009. And even though Hernandez reported his clean date as July


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No. 79227-0-1/15

14, 2018, he subsequently admitted that he had used marijuana and alcohol in

mid-September 2018,just prior to entering inpatient treatment. Moreover, the

following unchallenged findings are verities on appeal:

       2.65 The father himself testified that it would be six to twelve
            months before he could parent.

       2.68 The father could remedy his parental deficiencies within
            twelve months. As to the likelihood that he will do so, if past
            experience is an indication of future action, then the likelihood
            is troublesome.

Substantial evidence supports the trial court's finding that there is little likelihood

that conditions will be remedied so that A.R.J.H. could be returned to Hernandez

in the near future.

       Affirmed.




WE CONCUR:



•A)kdA.u.4i           .




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