Opinion
NO. 92127-0
01-14-2016
In Re the Adoption of: T.A.W. R.B. and C.B., Petitioners, v. C.W., Respondent.
RULING GRANTING REVIEW
¶1 R.B. and C.B. seek review of a published Court of Appeals decision reversing trial court orders terminating C.W.'s parental rights to T.A.W. and allowing R.B., C.B.'s husband, to adopt T.A.W. Both T.A.W. and his mother C.B. are enrolled members of the Shoalwater Bay Tribe. C.W. is the biological father of T.A.W. and is non-Indian.
¶2 In appealing the termination and adoption orders, C.W. urged that R.B. and C.B. had not met the requirement in the federal Indian Child Welfare Act (ICWA) and the parallel state statute that a party seeking to terminate parental rights to an Indian child must 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) ; RCW 13.38.130(1). R.B. and C.B. argued that these provisions do not apply to an Indian biological mother's petition to terminate the parental rights of a non-Indian biological father to allow a stepparent adoption. Additionally, R.B. and C.B. argue that under Adoptive Couple v. Baby Girl , 133 S.Ct. 2552, 186 L.Ed.2d 729 (2013), the "active efforts" provisions do not apply where a parent has abandoned the child. Here, the trial court found that C.S. had abandoned T.A.W., though the record reflected C.S. had some contact with the child.
¶3 The Court of Appeals rejected these arguments and summarized its holdings as follows:
We hold that (1) CW can raise the "active efforts" requirement [of the Indian Child Welfare Act] for the first time on appeal under RAP 2.5(a)(2) because the issue involves sufficiency of the evidence, (2) the plain language of 25 U.S.C. § 1912(d) and RCW 13.38.130(1) required CB and RB to show that active efforts were made to prevent the breakup of the Indian family consisting of CW and TAW before CW's parental rights could be terminated, (3) these provisions apply to both the Indian and non-Indian parents of an Indian child, and (4) Adoptive Couple does not eliminate ICWA's "active efforts" requirement under Washington law. Because CW and RB did not produce evidence of active efforts at the trial court, we reverse the trial court's termination and adoption orders and remand to the trial court for further proceedings consistent with this opinion.
In re Adoption of T.A.W. , 188 Wn. App. 799, 803, 354 P.3d 46 (2015). R.B. and C.B. do not seek review of the first holding, that C.W. can raise the claim that they failed to show active efforts to prevent the breakup of the Indian family as required by federal and state versions of ICWA. However, they do seek review of the other holdings that require a biological Indian mother and adoptive father to show active efforts to prevent the breakup of "the Indian family" by showing remedial services and rehabilitative programs were offered to the non-Indian biological father of the Indian child.
¶4 The Court of Appeals reached its decision after granting accelerated review pursuant to RAP 18.13A. This court will grant discretionary review of a decision on accelerated review only if the decision conflicts with a decision of this court or with another decision of the Court of Appeals, or if the case involves a significant constitutional question or an issue of substantial public importance. RAP 13.4(b) ; RAP 13.5A(a)(3), (b).
¶5 I agree that this case involves issues of substantial public importance. In reaching this conclusion, I have considered this court's decision in In re Adoption of Crews , 118 Wn.2d 561, 825 P.2d 305 (1992), and the subsequent amendments to chapter 13.34 RCW. See LAWS OF 2004, ch. 64, § 4. In Crews this court held that ICWA was inapplicable when the child, who was discovered to be an Indian child after the finalization of an adoption, was considered not to have been removed from an Indian family. Crews , 118 Wn.2d at 569. Although the child and the biological mother were eligible to become members of the Choctaw Nation, there were no other cultural or tribal ties. Id. Both the mother and the intervenor Choctaw Nation asked this court to apply ICWA, but it declined to do so because "[t]o apply ICWA in this specific situation would not further the policies and purposes of ICWA." Id. The state law was amended in 2004, several years after Crews was decided, and the Court of Appeals decision is based in large part on language adopted at that time. The Court of Appeals observed that RCW 13.34.040(3), added by that amendment, broadly states that "[i]f the child is an Indian child chapter 13.38 RCW [ICWA] shall apply." T.A.W. , 188 Wn. App. at 810. The court then concluded that "[t]his statute unequivocally provides that under Washington law, ICWA applies in all termination cases in which the child is an Indian. RCW 13.34.040(3) does not condition the application of ICWA on whether the parent also is an Indian." Id. (Emphasis in original.)
¶6 But there may be questions about whether RCW 13.34.040(3) is so sweeping. There are several factors a court considers in deriving the plain meaning of a statute as an expression of legislative intent, even if the court determines a statute is unambiguous. The plain meaning is derived from the context of the entire act as well as any related statutes which disclose legislative intent about the provision in question. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Here, the context of the entire act contains indicia that the amendment of RCW 13.34.040(3) was focused on the notices required by ICWA. This subsection was added to the law by enactment of Substitute House Bill 3051, entitled "AN ACT Relating to notice provisions for proceedings involving the Indian child welfare act; and amending RCW 26.10.034, 26.33.040, 13.34.040, and 13.32A.152." In accordance with the title, each provision in the bill included references to required ICWA notices. The bill added subsections (3) and (4) to RCW 13.34.040, as follows:
The Shoalwater Tribe evidently had actual notice of the pending petition to terminate C.W.'s parental rights, as the trial court's memorandum decision notes that the Tribe submitted a letter approving the adoption.
Sec. 3. RCW 13.34.040 and 2000 ch. 122 § 2 are each amended to read as follows:
(1) Any person may file with the clerk of the superior court a petition showing that there is within the county, or residing within the county, a dependent child and requesting that the superior court deal with such child as provided in this chapter. There shall be no fee for filing such petitions.
(2) In counties having paid probation officers, these officers shall, to the extent possible, first determine if a petition is reasonably justifiable. Each petition shall be verified and contain a statement of facts constituting a dependency, and the names and residence, if known to the petitioner, of the parents, guardian, or custodian of the alleged dependent child.
(3) Every petition filed in proceedings under this chapter shall contain a statement alleging whether the child is or may be an Indian child as defined in 25 U.S.C. Sec. 1903. If the child is an Indian child as defined under the Indian child welfare act, the provisions of the act shall apply.
(4) Every order or decree entered under this chapter shall contain a finding that the Indian child welfare act does or does not apply. Where there is a finding that the Indian child welfare act does apply, the decree or order must also contain a finding that all notice requirements and evidentiary requirements under the Indian child welfare act have been satisfied.
LAWS OF 2004, ch. 64, § 3. When viewed in context of the enactment of Substitute House Bill 3051, the "plain meaning" of this provision could be viewed in a different light. And if the meaning is viewed in a different light, the analysis of the applicability of Adoptive Couple could also change, since the Court of Appeals holding is based in part on the unique provision of RCW 13.34.040(3), which does not have a counterpart in the federal ICWA. See T.A.W. , 188 Wn. App. at 815-16. Additionally, the context of ICWA is that it was "enacted to help preserve the cultural identity and heritage of Indian tribes," Adoptive Couple , 133 S.Ct. at 2565. And "Indians are granted preferences under ICWA, not because of their race, but because of their membership in quasi-sovereign tribal entities," and because "ICWA is rationally related to Congress's obligation to protect and advance the Indian family and tribal relations." In re Beach , 159 Wn. App. 686, 693-94, 246 P.3d 845 (2011). This context may also provide grounds for differences of opinion in resolving the plain meaning of the words used in RCW 13.34.040(3).
The Final Bill Report summary of Substitute House Bill 3051 emphasizes the notice provisions that were added to various statutes as follows:
Notice provisions regarding the ICWA are added to the statutes dealing with third party custody proceedings, adoptions, dependencies, and CHINS [child in need of services] and ARY [at-risk youth] proceedings.
Whenever the court or petitioner knows or has reason to know that an Indian child is involved, the petitioning party must promptly give notice to the child's parent or Indian custodian and the child's Indian tribe. Notice must be by certified mail, return receipt requested. If the identity or location of the parent or Indian custodian or the tribe cannot be determined, notice must be given to the Secretary of the Interior. If the child may be a member of more than one tribe, notice must be sent to all tribes the petitioner has reason to know may be affiliated with the child. The notice must contain a statement notifying the parent or Indian custodian and the tribe of the pending proceeding and notify the tribe of the tribe's right to intervene and/or request that the case be transferred to tribal court.
A provision is added to the adoption statutes stating that no termination, relinquishment, or placement proceeding shall be held until at least 10 days after receipt of notice by the tribe. The tribe may request an additional 20 days to prepare for the proceeding.
¶7 Accordingly, this case raises issues of substantial public importance that warrant discretionary review under RAP 13.4(b)(4).
¶8 The motion for discretionary review is granted.