In re A.T.

541 P.3d 1079

In the MATTER OF the DEPENDENCY OF: A.T.

No. 39603-7-III

Court of Appeals of Washington, Division 3.

Filed January 25, 2024

Lise Ellner, Attorney at Law, P.O. Box 2711, Vashon, WA, 98070-2711, for Appellant.

Madeline Jane Ebel, Office of the Attorney General of Washington, 1116 W Riverside Ave. Ste. 100, Spokane, WA, 99201-1113, for Respondent.

PUBLISHED OPINION

Pennell, J.

¶1 A.T. is an Indian child as defined by 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. After a dependency fact-finding and disposition hearing, the juvenile court found A.T. was dependent and ordered out-of-home placement due to safety concerns prompted by signs that A.T.’s father has significant untreated mental illness.

¶2 A.T.’s father appeals, primarily arguing the Department of Children, Youth, and Families failed to engage him in active efforts to prevent the breakup of A.T.’s family. We agree with the father in part.

¶3 We agree the Department fell short on its obligation to provide active efforts. Although the Department's social workers worked extensively with the father, they never specifically engaged the father in an effort to help him overcome his aversion to mental health treatment. While the father could not be ordered to complete mental health services prior to the court's dispositional order, this did not excuse the Department from actively encouraging voluntary participation in services so as to avoid out-of-home placement.

¶4 Although we disagree with the juvenile court's finding regarding active efforts, we nevertheless affirm A.T.’s out-of-home placement. At the conclusion of the dependency fact-finding hearing, the juvenile court found that returning A.T. to his father's care would subject him to substantial and immediate danger or threat of such danger. This finding was amply supported by the record. Thus, the juvenile court was justified in ordering that A.T. be placed out of the home, despite the absence of active efforts. See 25 U.S.C. § 1920 ; RCW 13.38.160.

FACTS

¶5 A.T. is an Indian¹ child under ICWA and WICWA. He has spent most of his life in the exclusive care of his father. His mother has had limited involvement. A.T. was removed from his father's home shortly after his eighth birthday based on health and safety concerns.

Facts leading up to A.T.’s removal

¶6 The Department has been involved with A.T. and his family since A.T.’s birth. A.T. has eye conditions that place him at risk of vision loss. He had surgery as a toddler, but still requires regular checkups and monitoring. Over the course of his life, A.T.’s father has struggled to facilitate necessary eye care for A.T. But in prior involvement with the Department, the father had been responsive to A.T.’s eye care needs when prompted to take action. See 1 Rep. of Proc. (RP) (Dec. 8, 2022) at 107.

¶7 A.T.’s father was born in Brazil and spent much of his childhood in a Brazilian orphanage. The father was adopted by an American family and moved to Spokane when he was approximately 10 years old. When he came to the United States of America, the father had limited English proficiency. He was often bullied at school. As an adult, A.T.’s father has shown to be extremely distrustful of government officials, and he is fearful of institutions.

¶8 While the father's traumatic childhood has likely contributed to his distrust of government, individuals who have worked with the father believe the father's distrust is also rooted in ongoing "mental health" issues. See 1 RP (Dec. 8, 2022) at 47; 1 RP (Dec. 20, 2022) at 358, 435. The father frequently exhibits paranoia; grandiose thinking; persecutory delusions; pressured, rapid speech; and erratic behavior. He often expresses the belief he is being surveilled or bugged by government agencies. For example, during the course of this dependency the father revealed he had dismantled the smoke detectors in his apartment and was storing them in his dishwasher in order to prevent government surveillance.

¶9 Although the father's apparent mental health struggles are both obvious and significant, he is not involved in mental health treatment. Social workers have discussed mental health concerns with the father, but he has always said he is "not interested" in any help. 1 RP (Dec. 8, 2022) at 73; see also 1 RP (Dec. 20, 2022) at 422-23. The Department's social workers have deferred to the father's wishes, reasoning he has the "autonomy and self-determination to decline" services. 1 RP (Dec. 8, 2022) at 74. There is no evidence in the record before us that any of the Department's social workers have ever worked with the father to encourage him to rethink his resistance to mental health assistance.

¶10 In May 2022, Department social worker Shalana Zackuse began working with A.T. and his father after receiving a report of concern about the father's apparent "mental health paranoia." Id. at 20. During a family visit, Ms. Zackuse discovered A.T. was not enrolled in school, nor had he received any medical care since the onset of the COVID-19 pandemic. The father claimed he was homeschooling A.T. because he feared public school educators were "programming" his son. Id.

¶11 Ms. Zackuse worked with the father to address issues regarding school and A.T.’s health. She explained homeschooling requirements and advised about the possibility of online and tribal schools. Ms. Zackuse drove the father to an eye clinic so he could attempt to reestablish A.T.’s eye care. And she engaged in other efforts to address the family's needs, including facilitating access to housing assistance, clothing, and hygiene supplies.

¶12 Throughout her work with the family, Ms. Zackuse struggled to engage the father in conversations about his need for services. The father has a pressured speech pattern marked by nonlinear and paranoid thought processes. He generally dominates conversations, making it hard for others to participate. Ms. Zackuse found the father's problematic speech pattern would "escalate[ ]" when she talked about resources. Id. at 27.

¶13 While reviewing the family's case file, Ms. Zackuse discovered a note mentioning a 2021 police report. Further investigation revealed the report included an allegation that A.T. had told a neighbor "his best friend is his dad's wiener and ... he likes to play with his dad." Id. at 33. This caused Ms. Zackuse to become concerned about the possibility of sexual abuse. She arranged to meet the father at his home on September 8, 2022. A second social worker accompanied Ms. Zackuse to the visit.²

The September 8, 2022, home visit and emergency removal

¶14 At this September 8 meeting, the father cycled between periods of agitation and relative calm. Ms. Zackuse noticed the father seemed more paranoid than usual, and she grew concerned because the content of the father's delusions had begun to be targeted at the Department and herself. For instance, he claimed Department employees are all preprogrammed "slaves." Id. at 37. The father told Ms. Zackuse he believed she had been sent by his own father, and informed her he "wasn't afraid to go to jail." Id. at 44; see id. at 34.

¶15 During the visit, the father met with the social workers in a bedroom and tried to keep the social workers away from A.T. Eventually, A.T. wandered into the bedroom and Ms. Zackuse noticed the child had bruising under his right eye. The father explained the bruise was the reason he did not want them to see A.T. According to the father, the previous night he had been teaching A.T. to sweep when he accidentally struck him in the face with the end of the broom handle. The father "found it suspicious" the social workers had come to his home on a day that A.T. had a visible injury. Id. at 34. The father believed the Department knew about A.T.’s black eye in advance because they had been surveilling him in his home. The father forbade the social workers from asking A.T. about the injury.

¶16 The conversation was moved to the living room and, at that point, Ms. Zackuse became concerned A.T. was engaging in sexualized conduct. A.T. straddled his father's lap while thrusting his hips, and kissed his father's neck while caressing his chest and face. When Ms. Zackuse mentioned her concern about potential sexual abuse, the father denied the implication, stating, "children are preprogrammed sexually" and that he and A.T. "are just very affectionate." Id. at 43. The father told Ms. Zackuse he had been "dabbling" in MDMA (3,4-methylenedioxymethamphetamine), also known as ecstasy, id . at 39, and told her he used drugs in the bedroom, away from his son. Id. at 42.

¶17 Ms. Zackuse also grew alarmed for A.T.’s physical safety based on the father's use of the word " ‘sacrifice.’ " Id. at 35. According to Ms. Zackuse,

[The father] was talking about me being sent there by his dad and his dad is part of the elites and the Feds, and in regards to the insurance money, the millions of dollars of insurance money on [A.T.]. And that he needed to just sacrifice [A.T.] and get rid of him so that he could just get the money.

....

... I asked him, like, what did he mean by sacrifice .... And he said that, oh, I just mean, like, give him to my dad so he can go to foster care.

Id. Based on her interactions with A.T. and his father, Ms. Zackuse made a referral to the county's crisis response team. Mental health professionals and uniformed law enforcement officers responded to the family home later that evening.

¶18 The law enforcement officers immediately suspected the father of being under the influence of drugs. This was based not only on the father's rapid and pressured speech pattern, but also on a strong chemical smell coming from the father's bedroom that was consistent with methamphetamine.³ During the intervention, the father also admitted to using an unnamed substance.

¶19 The crisis responders were unable to engage A.T.’s father in a productive conversation. He talked...