In re D.B.C.K.-S.

1

In the Matter of the Dependency of D.B.C.K.-S.^[†] In the Matter of the Dependency of L.R.C.T.K.-S.

Nos. 38075-1-III, 38076-9-III

Court of Appeals of Washington, Division 3

May 17, 2022

UNPUBLISHED OPINION

Lawrence-Berrey, J.

This appeal concerns the dependency proceedings of Ms. K.'s Indian children, D.B.C.K.-S. and L.R.C.T.K.-S. In 2019, the trial court found both children dependent due to Ms. K.'s chemical dependency, mental health issues, and unstable housing. Ms. K. appealed and this court affirmed. Our Supreme Court reversed, holding that the Department of Children Youth, and Families (Department) failed to engage in active efforts to prevent the breakup of the Indian family and remanded to immediately return Ms. K.'s children unless doing so would subject them to substantial and immediate danger or threat of such danger.

On remand, the trial court found Ms. K. had a long-standing chronic, and untreated substance abuse disorder that created a substantial and immediate danger or threat of such danger and accordingly did not return the children to her.

Ms. K appeals, arguing the Department failed to meet the heightened standard on remand, and the trial court's findings are not supported by sufficient evidence. She notes the Department presented mostly the same allegations from the 2019 dependency trial. But the Department's reliance on that evidence was reasonable, given that Ms. K. continued to refuse all engagement with the Department, the Northern Arapaho Tribe (Tribe), the court-appointed special advocate (CASA), and service providers other than visitation. The new evidence presented by the Department comes from Ms. K.'s recent run-ins with law enforcement, her continued association with felons and known drug users, her text messages involving drugs, and visitation center notes. The Department acknowledged its need to make active efforts going forward, but in light of the remedy here-immediate return-it necessarily presented the evidence it had available at the time of the hearing.

Ms. K argued, alternatively, if there was sufficient evidence she had an untreated substance abuse disorder, there was no causal connection between that disorder and a substantial and immediate danger or threat of such danger to her children. We conclude there was sufficient evidence and affirm the trial court.

FACTS

In August 2018, the Department filed a dependency petition against Ms. K., who has three children.^[1] Her two youngest children, D.B.C.K.-S. (D.) and L.R.C.T.K.-S. (L.), are enrolled members of the Tribe through their father. As such they are subject to the federal 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. The Tribe intervened in January 2019.

In early 2019, after two days of trial, the court found D. and L. dependent as to Ms. K. The court found Ms. K.'s primary parenting deficiencies were a chemical dependency, mental health issues, and unstable housing. The court ordered Ms. K. to participate in a chemical dependency assessment, a hair follicle test, random urinalyses, a psychological evaluation and treatment, and to maintain contact with the Department. She was later ordered to participate in a domestic violence assessment and parenting education.

Initial appeals

In March 2019, Ms. K. appealed to this court, arguing the Department had not engaged in active efforts to prevent the breakup of her family as required by ICWA and WICWA. This court declined to review her claim under the invited error doctrine. In re Dependency of A.L.K., No. 36621-9-III, slip op. at 8-9 (Wash.Ct.App. Mar. 31, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/366219_unp.pdf.

Our Supreme Court granted discretionary review, held that the invited error doctrine did not apply, and concluded the Department did not engage in active efforts. In re Dependency of A.L.K., 196 Wn.2d 686, 697, 701, 478 P.3d 63 (2020). The court affirmed the dependency order, vacated the out-of-home placement, and remanded "for immediate return of these two children to their mother, unless the court finds that returning the children puts the children in 'substantial and immediate danger or threat of such danger.'" Id. at 690-91 (quoting 25 U.S.C. § 1920). The Supreme Court issued its mandate on January 12, 2021.

Remand: January 2021 dispositional hearings^[2]

As directed, the trial court held a hearing to determine whether returning the children to Ms. K. would put them in substantial and immediate danger or threat of such danger. The court heard testimony and reviewed declarations from the Department's social worker, Breanne Reeves, the children's court-appointed special advocate, Jay Brunner, tribal representative, Shelly Mbonu, and Ms. K.

Breanne Reeves^[3]

Ms. Reeves was assigned to this case in August 2018. Before the current dependency, the Department had been involved with Ms. K. for substance abuse treatment and to address an unstable living environment. In 2017 and 2018, Ms. K. allegedly left her children with an unsafe person who was known for weapons, drugs, and prostitution.

Ms. Reeves testified that returning the children to Ms. K. would subject them to substantial and immediate danger or the threat of such danger due to her significant untreated chemical dependency, lack of parenting skills, mental health issues, and lack of safe and stable housing.

Ms. Reeves summarized her concerns as follows:

Ms. [K.] continues to demonstrate that she cannot-cannot or will not control her behavior and her behavior impacts the child's safety. She has significant untreated substance abuse issues that can be shown by her drug charges from May of 2019 where she was riding in a vehicle with known felons and drug users. Meth and heroin were found in her possession and she has pending charges stemming from this incident. She was then again found in a vehicle in April of 2020 with felons and known drug users to law enforcement. She was then again found in possession of meth, heroin suboxones, as well as foils, a digital scale. And she's . . . shown that she's continuing to associate with known felons and drug users. And in relations with a bunch of unsafe individuals which pose a safety risk to her children. Ms. [K.]'s children are very young in age. They're very vulnerable and do not have the ability to protect themselves.

Report of Proceedings (Jan. 14 & 28, Feb. 24, 2021) (RP) at 116.

Ms. Reeves testified that children of heroin or methamphetamine users face safety risks including the parent's "poor judgment, confusion, irritability, inadequate supervision, inconsistent parenting, chaotic home life" as well the children's "accidental ingestion of drugs [and] safety risks with other individuals that are around the parents that are also using." RP at 19. She explained, "parents who are under the influence or using drugs associate with other known criminals and drug users and this creates a safety risk because . . . parents sometimes do not have the ability to judge dangers for their children." RP at 19. Methamphetamine users often have "odd schedules, staying up for hours and hours, sometimes days at a time and falling asleep at times where other individuals are going about their main daily lives." RP at 117. Parents who use methamphetamine spend time with others who use and sell and could expose their children to those individuals.

At visits, Ms. K.'s parenting "is chaotic, it is not consistent, she is unable to manage the children's behaviors, [and] she's not consistent in her discipline." RP at 21. Ms. Reeves observed two visits where Ms. K. attempted to discipline but did not follow through. In other visits, Ms. K.'s children "would run from her, taunt her to chase them," and that "Covid protocol was not being followed, masks were not being worn or encouraged to wear." RP at 111. The "inconsistency creates this power struggle between her and the children." RP at 111. Furthermore, Ms. K. was "chronically late to her visits" due to transportation issues, yet she denied the Department's efforts to assist her with those barriers. RP at 113.

Furthermore, Ms. Reeves noted that up until this date, Ms. K.'s address was unknown and she had a history of moving from home to home with unsafe individuals and in homes known for criminal and drug activity.

Ms. Reeves reviewed a police report from an incident between Ms. K. and Josh Saylor in October 2020. Ms. K. had a black eye and her belongings were inside of Mr. Saylor's motorhome. Mr. Saylor said he was helping her gather items for court when she began yelling at him. Ms. Reeves learned that Mr. Saylor was potentially Ms. K.'s significant other based on Mr. Saylor's statements and the fact that the responding officers offered domestic violence information to Ms. K. Mr. Saylor is currently incarcerated for driving while intoxicated, intimidating a witness, and harassment or threats to kill.

Shelly Mbonu

Ms Mbonu is the ICWA director for the Northern Arapaho Tribe. When she started this case, she met with Ms. Reeves and read the case notes and court documents. Ms. Mbonu had participated in the 2019 fact-finding hearings, review hearings, and meetings since the appeal. She had spoken to Ms. K. about the case but had not done any independent investigation or personally observed visitation.

Ms. Mbonu believed that returning Ms. K.'s children would expose them to potential substance abuse and unsafe conditions. The safety risks include "being cared for with others and being exposed to people who may be using substances and just being around that environment." RP at 30.

Ms Mbonu also believed that returning the children to Ms. K. would subject them to substantial and immediate...