(Cite
as: 106 Wash.App. 123, 22 P.3d 828)
Court
of Appeals of Washington,
Division
1.
In
re DEPENDENCY OF A.M.
Teanna
Applebee, Appellant,
v.
Department
of Social and Health Services, Respondent.
No.
46486-8-I.
May 7, 2001.
**829 *125
Gregory Link, Seattle, for Appellant.
Cheryl A. Bateman, Atty.
Generals Office, Everett, for Respondent.
*126
KENNEDY, J.
The Indian Child Welfare
Act (ICWA) requires that any person seeking 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." 25 U.S.C. § 1912(d). Teanna Applebee,
a member of the Snoqualmie Tribe, appeals the termination of her parental
rights to her daughter A.M., now four years old, contending that the findings
required by § 1912(d) must be supported by evidence beyond a reasonable
doubt, rather than by clear, cogent and convincing evidence. We conclude
that the ICWA does not require a higher degree of proof in support of
§ 1912(d) than clear, cogent and convincing evidence. We also reject
Ms. Applebee's claim that the State failed to prove that it made active
efforts to provide remedial services that were unsuccessful, as required
by § 1912(d) of the ICWA. Accordingly, we affirm the termination
of the parent child relationship in this case.
FACTS
Teanna Applebee gave birth to baby girl A.M. on December 3, 1996. Ms.
Applebee **830
used illegal drugs during her pregnancy. A.M. was born prematurely. She
spent her first month of life at the Pediatric Infant Care Program (PIC).
Child Protective Services (CPS) was involved with Ms. Applebee prior to
A.M.'s birth and CPS provided her with the PIC, a Public Health Nurse,
and services at Therapeutic Health Services (THS). THS provided methadone
treatment and daily counseling to Ms. Applebee, as well as vouchers for
the baby's basic needs. The Department of Social and Health Services (DSHS)
funded these services.
Approximately four months after A.M. was born, Ms. *127
Applebee entered a detoxification program at Evergreen Manor. She contacted
her maternal aunt and uncle, Sue and Randy Lutz, and asked them to get
the baby from an unsafe caretaker with whom she had left A.M. Sue and
Randy Lutz retrieved A.M., and they have been her caretakers ever since.
In December of 1997, when A.M. was a year old, Ms. Applebee disappeared,
and was not located again until the fall of 1999.
Ms. Applebee, A.M., and
the Lutzes are enrolled members of the Snoqualmie Tribe. Mary Hinzman
is the Vice-Chairwoman of the Snoqualmie Tribe. She is also Ms. Applebee's
great-grandmother. Before Ms. Applebee disappeared, Ms. Hinzman told her
that it was very important that she keep in contact with the baby. Ms.
Hinzman testified that Ms. Applebee came to the tribal office about three
times, then disappeared, despite the fact that she could have had many
opportunities to visit A.M.
A dependency petition
was filed on December 2, 1998, alleging neglect and abandonment by the
mother. Social worker Pat Alexander attempted to locate Ms. Applebee at
that time and was unable to do so. Accordingly, the dependency petition
was served by publication. The dependency order was entered by default
on May 4, 1999. It required Ms. Applebee to contact the DSHS to establish
an appropriate plan, including visitation.
Ms. Alexander remained
in contact with the Tribe, with Ms. Applebee's maternal
grandmother and grandfather, maternal great grandmother, and great aunt,
and she told each of them that if they heard from Ms. Applebee, to tell
her to contact the Department. None of these parties could locate Ms.
Applebee. Ms. Applebee contacted her parents at times when she was in
jail, but made no effort to contact the Snoqualmie Tribe and did not present
herself to the social worker. Tribal Vice-Chairwoman Hinzman subsequently
testified that the Tribe looked for Ms. Applebee but was unable to locate
her. Ms. Hinzman described the Tribe as a close-knit community and stated
that if Ms. Applebee had wanted to locate A.M., she could have easily
done so. Ms. *128
Applebee knew that the Tribal office was listed in the phone book and
that numerous services through the Tribe were available to her at no cost,
including drug and alcohol treatment, individual counseling, food, clothing,
housing and medical assistance.
On May 27, 1999, the
court ordered the Department to send a termination referral to the Attorney
General's Office. A Petition for Termination of Parent-Child Relationship
was filed on September 22, 1999.
At some point that same
month, social worker Jessica Nicholas discovered that Ms. Applebee was
being held at the King County Jail. A short while later, Ms. Applebee
was transferred to the Washington State Corrections Center for Women at
Purdy (Purdy), where she remains incarcerated to the present time. Her
earliest release date is December 1, 2001.
Ms. Nicholas met with Ms. Applebee on October 26, 1999, served her with
the termination petition, and discussed termination and services issues
with her. Ms. Applebee did not inquire as to the welfare of A.M. at that
time--although she made such an inquiry in December 1999.
In November 1999, three
months before trial, drug and alcohol treatment became part of Ms. Applebee's
programming at Purdy. She also enrolled in a parenting class. Ms. Nicholas
encouraged her to continue participating in classes related to drug and
alcohol abuse and parenting. She also gave Ms. Applebee her office number
and told her she could call at no cost.
On December 1, 1999,
Ms. Applebee was able to appear by telephone from prison and **831
participate in a permanency planning hearing. The court approved adoption
as the permanent plan and ordered Ms. Applebee to complete a drug and
alcohol evaluation, follow treatment recommendations, and complete an
approved parenting assessment and parenting class. The Department was
ordered to investigate the possibility of having a parenting assessment
while Ms. Applebee was incarcerated. Ms. Nicholas found a *129
parenting evaluator who would travel to the prison approximately three
weeks before trial, and called him. The evaluator failed to return the
call. Ms. Nicholas did not call him back. At or about that same time,
in January 2000, Ms. Nicholas had a conference call with Ms. Applebee
and her prison counselor during which they discussed Ms. Applebee's services.
Ms. Nicholas noted that the drug and alcohol treatment and
parenting classes at Purdy were appropriate and encouraged Ms. Applebee
to continue with those services, although she made it clear that the State
intended to proceed with the termination. Ms. Applebee agreed that the
services she was receiving at Purdy were the critical services ordered
and she stated that she did not need any additional services from the
social worker.
A two-day termination
trial occurred on February 16 and 17, 2000. The trial court heard testimony
from several witnesses including Ms. Applebee, members of her family,
tribal members, social workers and a Guardian ad Litem. Three expert witnesses,
including Tribal Vice Chairwoman Hinzman, testified in support of termination.
At the time of the trial,
Ms. Applebee had not seen A.M. for over two years, her last visit having
been in December 1997. At trial, she agreed that despite the numerous
services that were provided to her, she relapsed into drug use and continued
to engage in criminal activity. She also admitted that she had no relationship
with the child, and had been difficult to find because she moved a lot
and struggled with serious drug and alcohol addictions.
Ms. Sjodin, Ms. Applebee's
drug and alcohol treatment provider at Purdy, noted that Ms. Applebee
began using drugs at age nine, and had fifteen years of extensive abuse
of alcohol, cocaine, heroin and marijuana. She was diagnosed as being
latestage chemically dependent in the early stages of recovery. Her treatment
providers determined that she would need more treatment and outpatient
care after her release from prison.
On March 9, 2000, the
court concluded that the statutory elements under RCW 13.34.180 and 13.34.190
had been *130
established by clear, cogent and convincing evidence and that the requirements
of 25 U.S.C. § 1912(f) had been proved beyond a reasonable doubt.
The court terminated Ms. Applebee's parental rights to A.M. This appeal
followed.
DISCUSSION
Standard of
Review
Under RCW 13.34.180,
a court may enter an order terminating the parent-child relationship when
it finds that the following six requisite allegations are supported by
clear, cogent and convincing evidence: (a) the child has been found to
be a dependent child under RCW 13.34.030(4); (b) the court has entered
a dispositional order pursuant to RCW 13.34.130; (c) 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 under RCW 13.34.030(4); (d) the services ordered
under RCW 13.34.130 have been 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) there is little likelihood that conditions will be remedied
so that the child can be returned to the parent in the near future, and
(f) 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;
In re Welfare
of Aschauer,
93 Wash.2d 689, 695, 611 P.2d 1245 (1980); In
re Welfare of S.V.B.,
75 Wash.App. 762, 768, 880 P.2d 80 (1994). The trial court must also find
by a preponderance that termination is in the best interests of the child.
RCW 13.34.190(1); (2). In
re Dependency of A.S.,
**832
101 Wash.App. 60, 6 P.3d 11, review
denied, 11
P.3d 825 (2000).
Additionally, where a
child is an Indian child as outlined in the Indian Child Welfare Act (ICWA),
the following elements must be met:
(d)
Any party seeking to effect a foster *131
care placement of, or termination of parental rights to an Indian child
under State law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these efforts have
proved unsuccessful.
....
(f)
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 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(d) and (f).
In proceedings to terminate
parental rights, we give particular deference to the trial court's advantage
derived from having the witnesses before it. Aschauer,
93 Wash.2d at 695, 611 P.2d 1245; In
re H.J.P.,
114 Wash.2d 522, 532, 789 P.2d 96 (1990). The termination order will be
upheld if there is substantial evidence which the lower court could reasonably
have found to be clear, cogent and convincing to support the termination
findings. In
re Sego, 82
Wash.2d 736, 739, 513 P.2d 831 (1973). Whether a termination is in the
best interests of a child must be determined based upon the facts of each
case. Aschauer,
93 Wash.2d at 695, 611 P.2d 1245.
Standard
of Proof Under 25 U.S.C. § 1912(d)
On
appeal, Ms. Applebee argues that § 1912(d) should be read to require
the State to prove beyond a reasonable doubt that it provided her with
remedial services and rehabilitative programs, rather than by clear, cogent
and convincing evidence. She posits that because § 1912(f) requires
proof beyond a reasonable doubt that the continued custody of the child
is likely to result in serious emotional or physical damage to the child,
so also must § 1912(d) require proof beyond a reasonable doubt that
*132
active efforts to provide remedial services were made and that the services
failed to remedy the parental problems. Nothing less, she contends, is
consistent with the strong Congressional
intent to maintain intact Indian families wherever possible.
Conversely, the State
argues that § 1912(d) imposes no higher degree of proof and no additional
remedial services beyond those required under Washington's termination
statute--so that if the State has proved the elements contained in RCW
13.34.180(d) and (e) by clear, cogent and convincing evidence, it has
thereby met the requirements of § 1912(d).
This precise question
has not been addressed in Washington, but other States have done so. Some
of them have ruled that the elements of § 1912(d) must be proved
beyond a reasonable doubt; others have rejected that premise.
Representative of the
states that have required proof of active remedial efforts beyond a reasonable
doubt is Minnesota, wherein the Court of Appeals said:
Logically,
this seems to be compelled: If termination of parental rights of Indian
parents to their children can be ordered only upon a factual basis shown
beyond a reasonable doubt (§ 1912(f)), and if termination cannot
be effected without a showing of active efforts to prevent the breakup
of the Indian family and a failure thereof (1912(d)), then the adequacy
of efforts and futility of them, as predicates to termination, must likewise
be established beyond a reasonable doubt. Therefore, we recognize the
reasonable doubt standard as appropriate in determining whether the petitioning
party has complied with section 1912(d).
In the Matter
of the Welfare of M.S.S.,
465 N.W.2d 412, 418 (Minn.App.1991).
Representative of states
that have ruled that a lesser degree of proof is permissible **833
under § 1912(d) is Alaska. The Alaska Supreme Court in K.N.
v. State of Alaska,
856 P.2d 468 (1993) concluded that the trial court was not required to
apply the beyond a reasonable doubt standard in finding that active remedial
efforts had proved unsuccessful under 25 U.S.C. *133
§ 1912(d), and that the proper burden of proof was the preponderance
burden provided in Alaska's Child in Need of Aid Rule (CINA) 18(c)(2).
CINA 18(c)(2) requires
the State to show,
by
a preponderance of the evidence that the party requesting the termination
of parental rights has shown that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the
break-up of the Indian family and that these efforts have proved unsuccessful.
856 P.2d at 475. The K.N.
court noted that 25 U.S.C. § 1912(d) does not, on its face, conflict
with CINA 18(c)(2). Id.
at 476. Indeed, the only reference to a standard beyond a reasonable doubt
in 25 U.S.C. § 1912 is found within section (f).
The court then found
that the legislative history showed that the provision requiring remedial
services from the state was added to § 1912(d) because some states
had no such requirement and were not providing services:
[Section
1912(d) ] provides that a party seeking foster care placement or termination
of parental rights involving an Indian child must satisfy the court that
active efforts have been made to provide assistance designed to prevent
the breakup of Indian families. The committee is advised that most State
laws require public or private agencies involved in child placements to
resort to remedial measures prior to initiating placement or termination
proceedings, but that these services are rarely provided. This subsection
imposes a Federal requirement in that regard with respect to Indian children
and families.
Id.
at 476 (citing H.R.Rep. No. 95-1386, 95th Cong.2d Sess. 22 (1978), U.S.Code
Cong. & Admin. News 1978, pp. 7530, 7545); In
re Charles,
70 Or.App. 10, 688 P.2d 1354 (1984) (finding that the purpose of §
1912(d) is to require an affirmative showing by the State that active
efforts to reunite the family had failed).
Like the Alaskan court,
we see no inherent illogic in applying differing degrees of proof for
different elements that are required to be proved in termination proceedings.
We note from the K.N.
opinion that in Alaska, before a court *134
may terminate parental rights in an Indian child, the State must prove
by clear and convincing evidence that the parental conduct that caused
the child to be adjudicated a child in need of aid is likely to continue
unless parental rights are terminated, must prove beyond a reasonable
doubt that continued custody of the child is likely to result in serious
emotional
or physical damage to the child, and must prove by a preponderance that
active efforts have been made to provide remedial services that have proved
unsuccessful. 856 P.2d at 474-75. Similarly, in Washington, the elements
contained in RCW 13.34.180(1)(a)-(f) must be proved by clear, cogent and
convincing evidence, RCW 13.34.190 requires proof by a preponderance that
termination is in the best interests of the child, and in termination
proceedings involving Indian children, ICWA § 1912(f) requires proof
beyond a reasonable doubt that continued custody of the child is likely
to result in serious emotional or physical damage to the child.
We find the reasoning
of the Alaska court more persuasive than that of the Minnesota court.
Moreover, to the extent that there may be anything more than a semantic
difference in the requirements for remedial services under RCW 13.34.180
and ICWA, Washington's statute places a more strenuous burden on the State
than does § 1912(d). Whereas § 1912(d) only requires evidence
that active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful, RCW 13.34.180 requires:
(d)
That the services ... have been expressly
and understandably offered or provided and all necessary services, reasonably
available, capable of correcting the parental deficiencies within the
foreseeable **834
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. A parent's
failure to substantially improve parental deficiencies within twelve months
following entry of the *135
dispositional order shall give rise to a rebuttable presumption that there
is little likelihood that conditions will be remedied so that the child
can be returned to the parent in the near future. The
presumption shall not arise unless the petitioner makes a showing that
all necessary services reasonably capable of correcting the parental deficiencies
within the foreseeable future have been clearly offered or provided.
(Emphasis ours).
We conclude that the
trial court properly applied the clear, cogent and convincing standard
to the requirements contained in 25 U.S.C. § 1912(d).
State's
Duty to Make Active Efforts to Provide Remedial Services
Ms. Applebee also argues
that under either the clear, cogent and convincing standard or the beyond
a reasonable doubt standard, the court erred in finding that the State
satisfied its duty to make active efforts to provide her with remedial
services for her parental deficiencies as required by § 1912(d).
In so arguing, Ms. Applebee focuses only on the services provided during
her incarceration at Purdy, which had not proved unsuccessful at the time
of the termination trial. Ms. Applebee conceded at oral argument for this
appeal that the State made active efforts to provide her with remedial
services
designed to prevent breakup of the Indian family before her disappearance,
but argued that these services were "not enough because they were
not sufficient to remedy the problem." This reasoning fails. Section
1912(d) clearly recognizes that State efforts may fail. Indeed, such failure
must be shown before parental rights to an Indian child may be terminated.
Although Ms. Applebee
was apparently doing well in her rehabilitative programs at Purdy, and
that is to her credit, the ICWA is not a statute that provides a parent
of an Indian child with perpetual chances for rehabilitation. Rather,
the State's active efforts to provide remedial services have necessarily
failed at the point that, based on expert testimony, the evidence supports
a determination beyond a reasonable doubt that continued custody of the
*136
Indian child by the parent is likely to result in serious emotional or
physical damage to the child. The ICWA does not require the State to continue
making active efforts to remedy parental deficiencies at the expense of
physical or emotional damage to the child. Here, based on expert testimony,
the trial court found beyond a reasonable doubt that continued custody
by Ms. Applebee is likely to result in serious emotional or physical damage
to A.M. Finding of Fact 1.42. Ms. Applebee has not challenged this finding.
Accordingly, it is a verity on appeal. Washington
Ass'n of Child Care Agencies v. Thompson,
34 Wash.App. 235, 247, 660 P.2d 1129 (1983).
It is clear from the record that the State made active efforts to provide
Ms. Applebee with remedial services and rehabilitative programs designed
to prevent the breakup of her family--from before A.M.'s birth until Ms.
Applebee ceased participating in drug treatment, went back to using drugs
and committing crimes, and abandoned her child in total disregard for
her parenting obligations. Ms. Applebee's whereabouts were unknown to
her family, her tribe and her social workers for nearly two years. She
had been gone for over a year when the dependency order was entered, and
had been gone for nearly two years when the termination petition was filed.
At the time of trial, she was some two years away from her earliest release
date, barely started with the remedial and rehabilitative programs provided
at Purdy, and would be in need of long term treatment and outpatient care
after her release from prison.
Under Washington law,
" 'a parent's unwillingness or inability to make use of the services
provided excuses the State from offering extra services that might have
been helpful.' " In
re Dependency of P.A.D.,
58 Wash.App. 18, 26, 792 P.2d 159 (1990) (quoting **835
In re Ramquist,
52 Wash.App. 854, 861, 765 P.2d 30 (1988)). We hold that this same rule
applies to the services that must be actively offered under § 1912(d).
We reject the contention that the State cannot meet its burden under §
1912(d) where the *137
parent was voluntarily inaccessible to the State, thereby making it impossible
for the State to offer additional remedial and rehabilitative services.
Moreover, there can be no clearer evidence that the State's active efforts
have proved unsuccessful than a parent's untimely termination of detoxification
treatment, resumption of a lifestyle of drug use and crime, and voluntary
disappearance in total disregard for parenting obligations for a substantial
period of time. By so ruling, we have also rejected the proposition that
§ 1912(d) entitles such a parent to additional remedial and rehabilitative
services once she has been located in prison.
Accordingly, we need
not further address Ms. Applebee's contentions that the State's efforts
in the few months before the termination trial were not active enough
or unsuccessful enough to pass muster under § 1912(d). Time did not
stand still for A.M. while Ms. Applebee pursued a lifestyle of drugs and
crime. As is true in many termination cases, the mother's efforts on the
eve of the termination trial came too late. See,
e.g., In re the Interest of Infant Child Skinner,
97 Wash.App. 108, 982 P.2d 670 (1999); In
re Dependency of A.G.,
93 Wash.App. 268, 968 P.2d 424 (1998); In
re Dependency of O.J.,
88 Wash.App. 690, 947 P.2d 252 (1997). That the ICWA applies to this termination
proceeding does not change the analysis.
Without assigning error, Ms. Applebee complains in her opening brief that
the trial judge failed to specifically find that active efforts had been
made and that they were unsuccessful. Indeed, the court failed to enter
a finding using the specific words contained in § 1912(d). While
it would be preferable
for the court to make an ultimate finding in the language of § 1912(d)
where Indian children are concerned, as well as in the language of the
services provisions of our state statute, the evidentiary and ultimate
findings utilizing the language of the state statute are sufficient in
this case. As we have noted, any difference in the requirements of §
1912(d) and RCW 13.34.180(d) and (e) are largely semantic; if anything,
the showing required by *138
our state statute is more stringent than that contained in § 1912(d).
Therefore, for this court to remand for an additional finding in the language
of ICWA would be to place form over substance.
We affirm the termination
of Ms. Applebee's parental rights.
AGID, C.J., and APPELWICK,
J., concur.
106 Wash.App. 123, 22
P.3d 828
|