In Re The Adoption Of T.a.w. ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
November 22, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Adoption of: No. 52684-1-II
T.A.W.,
R.B. and C.B.,
Petitioners,
UNPUBLISHED OPINION
v.
C.W.,
Respondent.
SUTTON, J. — CW, the biological father of TAW, an Indian1 child, appeals from the trial
court order terminating CW’s parental rights and granting TAW’s stepfather’s adoption petition
under the Indian Child Welfare Act (ICWA)2 and the Washington State Indian Child Welfare Act
(WICWA).3 CW argues that (1) the trial court improperly concluded that there had been “active
efforts” to provide him with remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family as required under ICWA and WICWA, (2) the trial court erred when
1
“With the understanding that ‘Indian’ may not be preferred when referencing Native Americans,
American Indians, indigenous peoples, or First Nations, we use the term throughout this opinion
only because it is the expression adopted by both [the Indian Child Welfare Act] and [the
Washington State Indian Child Welfare Act]. We intend no disrespect.” In re Adoption of T.A.W.,
186 Wash. 2d 828, 834 n.1, 383 P.3d 492 (2016).
2
25 U.S.C. §§ 1901-1963.
3
Ch. 13.38 RCW.
No. 52684-1-II
it found that the guardian ad litem (GAL) was qualified as an expert witness under ICWA based
on its erroneous finding that the GAL had over 30 years of experience as a GAL, and (3) the trial
court erred in concluding that continuing CW’s parental rights would likely result in serious
emotional or physical damage to TAW.
We hold that although facilitating visitation can be a remedial service, it was not reasonably
available under the circumstances after September 2012. Thus, CW does not show that the trial
court erred when it concluded that CB and RB had proved they had made active efforts to provide
CW with remedial services and rehabilitative programs designed to prevent the breakup of the
Indian family as required under ICWA. We further hold that CW waived his argument challenging
the GAL’s qualifications as a qualified expert witness and that, in light of this holding, any error
in the trial court’s finding that the GAL had 30 years of experience is harmless. Finally, we hold
that the trial court’s findings support its conclusion that continuing CW’s parental rights would
likely result in serious emotional or physical damage to TAW. Accordingly, we affirm.
FACTS
I. BACKGROUND AND CHRONOLOGICAL HISTORY4
CB and her son TAW are enrolled members of the Shoalwater Bay Indian Tribe (Tribe).
CW is not an enrolled member of any recognized Indian band or tribe nor is he eligible for such
enrollment.
4
Unless otherwise noted, these facts are based on the trial court’s unchallenged findings of fact,
which are verities on appeal. In re Welfare of L.N.B.-L., 157 Wash. App. 215, 243, 237 P.3d 944
(2010). These facts also include portions of the findings of fact challenged by CW to the extent
CW does not present any argument related to those portions of the challenged findings of fact,
which are also verities on appeal. See Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801,
809, 828 P.2d 549 (1992).
2
No. 52684-1-II
CB and CW began their relationship in 2004, married in 2007, and divorced in September
2009. CB married RB, TAW’s stepfather, in 2013.
A. 2004 THROUGH 2009 EVENTS
TAW was born to CB and CW in December 2007. When TAW was a few months old, the
family moved to Tokeland, which is located within tribal jurisdiction. For the next month and a
half, CW cared for TAW on the days CB worked in Longview. Starting in December 2008, CW
started selling drugs.
From March 11, 2009 through April 1, 2009, CW received inpatient drug and alcohol
treatment. During this treatment, CW and CB attended family counseling in an attempt to preserve
the family. CB provided CW with transportation so he could attend treatment. At CB’s request,
the Tribe paid for CW’s drug treatment and family counseling.
Upon CW’s release from the treatment facility, CB allowed CW to return home. Kathirine
Horne, the director of Shoalwater Bay Tribal Social Services, established a case plan for intensive
outpatient treatment for CW, which had been recommended by the treatment facility. Although
the Tribe was willing to pay for CW’s aftercare treatment and to provide transportation, CW
rejected this treatment.
Thirteen days after the end of his inpatient treatment, CW left for Mount Rainier with a
friend who had offered him (CW) employment. CB gave CW permission to take her vehicle and
cash card. When the employment did not materialize, CW relapsed into drug use off and on until
2017.
3
No. 52684-1-II
When CW failed to return from Mount Rainier, CB posted flyers attempting to locate him.
Horne located CW and offered to take him to another drug treatment facility at the Tribe’s expense.
CW refused this offer.
On April 20, 2009, CW had his last face to face contact with TAW. That same day, CW
assaulted CB. Around this time, CW moved out of the family home.
On April 22, CW committed felony attempt to elude; he was charged with this offense on
April 24. On April 23, CB obtained a temporary protection order. On May 1, a temporary
restraining order5 “restricting visitation” between CW and TAW was entered. Clerk’s Papers (CP)
at 47 (Finding of Fact (FF) A 21).
Soon after obtaining the May temporary restraining order, CB filed for dissolution of the
marriage. On CB’s motion, the superior court terminated the temporary order or orders6 because
CW was again in drug treatment.
In June 2009, CB and CW reconciled. The marriage failed again in July.
Meanwhile, on June 29, CW pleaded guilty to a violation of a domestic violence court
order; he entered the drug court program on or around August 23. The drug court ordered CW to
complete inpatient and intensive outpatient treatment. In early September, CW entered an
inpatient and outpatient treatment program that was paid through the drug court program.
5
The trial court’s written findings of fact use the terms “protection order” and “restraining order”
interchangeably. Because these facts are based on the trial court’s written findings of fact, we do
as well.
6
The trial court’s finding of fact does not state whether this motion related to only one of the
previously issued orders or to both.
4
No. 52684-1-II
During this time, the dissolution proceeded. A September 23, 2009 parenting plan allowed
CW to have supervised visitation with TAW at Reunion Outreach during CW’s drug treatment if
he provided proof of three months of clean urinalysis tests and stable housing. CW did not exercise
his visitation with TAW.
B. 2010 THROUGH 2011 EVENTS
On January 1, 2010, while still under drug court supervision, CW was charged with
possession of heroin with intent to deliver. His drug court agreement was terminated in February
2010, and he pleaded guilty to the underlying felony eluding charge.
In March, CW pleaded guilty to the January 2010 drug charge and received a drug offender
sentencing alternative (DOSA)7 sentence, which required drug treatment. CW started inpatient
treatment that was paid for by the Department of Corrections (DOC). In May or June, CW was
discharged from the program “apparently due to seizure or illness.” CP at 48 (FF 32).
Meanwhile, between April and May 2010, CW committed several more offenses including
second degree burglary, residential burglary, possession of a stolen vehicle, and theft of a motor
vehicle. He pleaded guilty to these offenses and was sentenced to prison. Soon after CW’s
incarceration, on CB’s motion, the May 1, 2009 protection order prohibiting contact with TAW
was terminated.
While CW was in prison in 2011, CB contacted CW by phone and letter and allowed TAW
to be involved in these communications. CB also sent CW a book of photographs of TAW. But
CB refused CW’s requests to allow TAW to visit him in person.
7
RCW 9.94A.660.
5
No. 52684-1-II
C. 2012 THROUGH 2018 EVENTS
CW was released from prison in September 2012. On September 12, CB obtained a
domestic violence protection order from the Tribal court. This protection order prohibited CW
from contacting CB or TAW or entering reservation property for any reason other than to attend
court hearings.
In October, CW obtained an order modifying the September 12, 2012 protection order to
allow him to petition for a rehearing if he completed at least six months of domestic violence
classes or programs. The Tribe offered CW further services upon request. Despite being aware
that the Tribe would pay for services and that domestic violence classes were available locally,
CW never attended any domestic violence classes or programs.8
In January 2013, within four months of his September 2012 release, CW committed a
second degree robbery. He pleaded guilty to this charge in April 2013, and was sentenced to 43
months of confinement followed by 18 months of community custody.
In June, CB and RB petitioned to terminate CW’s parental rights and to allow RB to adopt
TAW. These proceedings are described in more detail below.
CW was released from prison on September 6, 2015. On October 14, CB obtained another
domestic violence protection order from the Tribal court prohibiting contact between CB and
TAW. This order did not contain any purging conditions and expired on October 14, 2018. From
October 2015 through March 2016, CW “received intensive outpatient treatment . . . with services
paid by the [DOC].” CP at 53 (FF B9(g)).
8
CW assigns error to this factual finding, but he presents no relevant argument. Accordingly, we
consider this finding a verity on appeal. L.N.B.-L., 157 Wash. App. at 243.
6
No. 52684-1-II
In April and May 2016, CW was charged with additional offenses. In June, he pleaded
guilty to taking a motor vehicle without permission and was sentenced to 29 months in
confinement. In November, CW pleaded guilty to second degree robbery and two counts of theft
of a motor vehicle and was sentenced to 72 months in confinement to run consecutive to his 29-
month sentence on the taking a motor vehicle without permission conviction. In June 2018, the
DOC classified CW “as a High-Risk Violent Offender” and a “High-Risk Property Offender,”
which means there is a high risk when CW is released, he will commit another violent or property
crime. CP at 52 (FFs A58-A59).
II. TERMINATION/ADOPTION PETITION, TRIAL COURT’S INITIAL DECISION, AND FIRST APPEAL
In June 2013, CB and RB petitioned to terminate CW’s parental rights and to allow RB to
adopt TAW. Following a trial, the trial court granted the petition. In re Adoption of T.A.W. (T.A.W.
I), 188 Wash. App. 799, 805, 354 P.3d 46 (2015), aff’d, 186 Wash. 2d 828, 383 P.3d 492 (2016) (T.A.W.
II).
CW appealed and our Supreme Court held that (1) ICWA and WICWA apply to the
termination of parental rights of a non-Indian biological parent of an Indian child, (2) ICWA and
WICWA apply to stepparent adoptions of Indian children, (3) ICWA and WICWA’s active efforts
provisions apply to privately initiated terminations when the Indian child will remain with the
Indian parent, and (4) “WICWA does not contain an abandonment exception.” T.A.W. II, 186
Wash. 2d at 847, 850-51, 852, 861-62. Our Supreme Court remanded this case back to the trial court
to reconsider the “termination petition” in light of its holdings. T.A.W. II, 186 Wash. 2d at 862.
7
No. 52684-1-II
III. PROCEEDINGS ON REMAND
A new trial was held on June 13 and 14, 2018. Evidence of CW’s criminal and treatment
history and interactions with CB and TAW were presented at trial as described above. 9
A. EVIDENCE
GAL Keith Lawrence testified at trial. CW did not object to Lawrence’s testimony on the
grounds that he was not a qualified expert witness under ICWA.
Lawrence testified that he had a psychology degree and a 47-year history in criminal justice
and social service. He also described his extensive experience as a case worker with the
Department of Social and Health Services (DSHS) and Child Protective Services (CPS) and as a
juvenile probation officer. Lawrence stated that he had done home studies for adoptions for “about
forty years” and he had been on the GAL register for a year. 1 Report of Proceedings (RP) at 58.
Lawrence estimated that he had completed about 30 GAL reports in that year. As to his experience
with ICWA, Lawrence stated that he had worked on one ICWA dependency case when he was
working with CPS and that he had not been involved in any ICWA adoption cases.
Horne testified that the Tribe supported the adoption. She also testified that because of
CW’s relationship to TAW, the Tribe continued to offer services to CW and that it would continue
to offer services to CW even if his parental rights were terminated.
9
CW does not challenge the findings of fact described above, so they are verities on appeal.
L.N.B.-L., 157 Wash. App. at 243.
8
No. 52684-1-II
B. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The trial court terminated CW’s parental rights and granted the adoption petition. In
support of these decisions, the trial court issued 26 pages of written findings of fact and conclusions
of law.
In addition to the facts set out above, the trial court issued the following written findings
of fact:
4) . . . . As a result of [his numerous] criminal convictions [between 2010 and
2016, CW] has served most of the last 8 years in custody and remains in custody
until October of 2020.
5) 2005 to 2009 - Between 2005 and 2009, [CW] assaulted [CB] five times.
....
10) April 2009 to June 2018 - [CW] continued in drug use, was often incarcerated,
and was by his own admission addicted to methamphetamine. CW was convicted
of eleven felonies between 2010 and 2016. At the time of trial, he remained
incarcerated with a release date scheduled for October 2020.
11) April 2009 to June 2013 - Between April 2009 and June 2013, any contact
between the CW and child was initiated solely by [CB] or the [CW’s] mother, and
not by any effort of [CW].
....
13) April 2009 - After late April 2009, CW had not contacted nor made any
attempted contact with TAW, nor sought [c]ourt assistance to have such contact.
14) April 2009 to June 13, 2013 - Between April 2009 and June 13, 2013, [CB]
under the circumstances made a good faith and consistent effort to establish and
maintain a relationship between [CW] and the child, and this effort was rejected by
[CW].
....
19) The Shoalwater Bay Indian Tribe received actual notice of these
proceedings and approved of [CB’s] efforts in this action.
CP at 53-55 (FF B) (citations to exhibits and record omitted).
9
No. 52684-1-II
The trial court also made additional findings related to the “‘active efforts’” on behalf of
CB, RB, and others. CP at 55. In addition to the facts set out above, the trial court’s findings
included the following:
 At trial, Horne stated that CW was considered part of the Tribe family and the Tribe was
willing to offer him services if he requested them, just as the Tribe would have if he had
been a tribal member. (FF C9).
 Supervised visits with TAW were available as of May 1, 2009, but they did not happen
because CW’s mother declined to supervise the visits out of concern “that she was aiding
and abetting violations of other restraining orders.” CP at 57 (FF C10).
 Horne contacted CW in prison between October 2010 and September 2012, to inform him
that the Tribe would be willing to help with services, including drug treatment and domestic
violence classes, upon his release and would continue to offer him services even though he
was no longer married to CB. (FFs C22-C24). But CW never took advantage of this offer.
(FF C24).10
 Horne contacted CW when he was served with the Tribal no-contact order to offer help.
(FF C22).
The trial court concluded “that the active efforts described [in its findings were] more than
sufficient to meet the requirements of the statute. RCW 13.38.130[.]”11 CP at 60 (FF C). The trial
court stated,
10
CW assigns error to the trial court’s findings of fact C23 and C24, but he presents no argument
relevant to these portions of those findings, so we consider them verities on appeal. L.N.B.-L., 157
Wash. App. at 243.
11
Although the conclusion was part of a finding of fact, it is more properly characterized as a
conclusion of law. In re Welfare of A.L.C., 8 Wash. App. 2d 864, 871, 439 P.3d 694 (2019) (we
review conclusions of law erroneously characterized as findings of fact as conclusions of law);
Casterline v. Roberts, 168 Wash. App. 376, 382-83, 284 P.3d 743 (2012) (determinations made by
a process of legal reasoning from the facts in evidence are conclusions of law).
10
No. 52684-1-II
In the present case, [CB] sought to address [CW’s] drug problem by
encouraging the Tribe to pay for his treatment for drug addiction, which they did on
one occasion. The Tribe repeatedly made it clear to [CW] that they would continue to
provide treatment if he desired. [CW] clearly chose drugs over his child every single
time between 2009 and 2018, and during that time, there were at least four attempts at
treatment.
All during that time, up until 2012, [CB] sought to maintain the relationship
between [CW] and the child. It is true she sought restraining orders against him, but
she also repeatedly asked that those restraining orders be lifted so he could have a
relationship with his child. It is a fine line of survival that an abused woman walks
balancing her perception of what it takes to stay alive and giving her child the
opportunity to know his father. It is easy to “Monday morning quarterback” her
decisions, but in this case considering the intransigent nature of [CW’s] addiction
decisions, she more than met the requirements of the statute. On at least one
occasion, she sent photographs of the child to [CW] in prison and allowed telephone
communications. She attempted to allow visitation through [CW’s] mother, even
though a restraining order existed forbidding that contact. That that contact did not
occur, or occurred only one or two times, was the result of [CW’s] mother’s worry
that she was aiding and abetting a violation of the restraining order. [CB] here was
clearly attempting to allow a relationship yet keep herself safe by utilizing the
services [CW’s] mother.
It was only in 2012, after [CW] had committed four felonies (2 in Pacific County
and 2 in Grays Harbor County) and after the last domestic violence incident that
[CB] did not pursue efforts to maintain the father-son relationship. On the other
hand, other than obtaining a restraining order to protect herself from his assaults,
she did not do anything to interfere with the efforts by [CW] to seek a relationship.
He just never did. After 2009, he never contacted her about visitation; he never
went to court to obtain visitation except to modify the restraining order to get the
possibility of contact, if he completed domestic violence perpetrator education and
treatment (which he never pursued); and he never provided financial support.
[CB’s] attempts to maintain the father-son relationship between 2008 [and]
2012, the Tribe’s efforts and offers to provide treatment for drug addiction between
2008 and 2012, and the criminal justice system’s provision of treatment
opportunities between 2012 and 2017, through drug court, and pursuant to the
DOSA sentencing alternative requiring inpatient and aftercare, more than meet the
statute’s requirement of “active efforts”.
11
No. 52684-1-II
The only arguable ingredient of “active efforts” missing in the history of
the relationship of [CB], [CW] and son, is visitation. But visitation is not one of
the requirements under the statute[.] “In re Dependency of T.H.[12] holds that that
visitation is not a service that the [DSHS] is required to provide under RCW
13.34.180(1)(d). [] The [c]ourt noted that the term “services” required under RCW
13.34.136, includes domestic violence counseling, parenting classes, drug and
alcohol counseling, random urinalysis, and other similar services. [] Each of these
activities is a means of curing parental deficiencies, whereas visitation itself
provides no such rehabilitation. The [c]ourt went on to explain that RCW
13.34.136, clearly differentiates between services and visitation, and prohibits a
dependency court from limiting visitation as a sanction for a parent’s failure to
comply with services. [] Both of these circumstances imply that visitation is not
itself considered a service.” In re the [M]atter of S.B.-L., [noted at] 183 Wash. App.
1008[, 2014 WL 4198289]).
CP 60-61 (FF C) (emphasis added).
The trial court also discussed the effect of the existence of the Tribal [c]ourt restraining
order and CW’s incarcerations on CB and RB’s “active efforts” to maintain TAW’s relationship
with CW. The trial court concluded,
In the present case, this [c]ourt must give full and complete effect to the Tribal
Court [r]estraining [o]rder against [CW]. This [c]ourt cannot order [CB] to foster
a relationship between the [c]hild and [CW] that the Tribe forbids. This [c]ourt
cannot make some finding that “active efforts” should have included some sort of
relationship forged around the absence of contact. No such relationship would
fulfill the intent of the [s]tatute to maintain Tribal integrity.
Finally, between 2010 and 2018 [CW] spent almost 7 years in prison. The need for
any drug treatment resulting in a fit-father could not have been accomplished in the
brief stints of freedom between incarcerations. Even if it could be argued that more
services should have been offered, [CW] could not have accepted these services
since he kept returning to prison. Offering services in the face of the Tribal [o]rder,
the real danger presented by [CW] to [CB’s] health and safety, and the constant
return to incarceration by [CW] would have made the offer, or provision, of
additional services futile beyond a reasonable doubt.
CP at 62-63.
12
In re Dependency of T.H., 139 Wash. App. 784, 162 P.3d 1141 (2007).
12
No. 52684-1-II
The trial court then addressed Lawrence’s testimony. The trial court stated,
[CB] called Mr. Lawrence to fulfill the obligation required of the statute.
Mr. Lawrence is not a member of the Shoalwater Bay Tribe, does not have
substantial experience in delivering child and family services to Indians, does not
have extensive experience with delivery of services to any other tribe, he is however
a professional person having substantial education and experience in the area of his
or her specialty which is as a [GAL] for children for over 30 years.
CP at 63 (emphasis added) (internal quotation marks omitted). The trial court concluded that
Lawrence’s lack of specialized knowledge of the social and cultural aspects of Indian life did not
disqualify him as a qualified witness because this case did not involve any culturally sensitive
issues.
Quoting extensively from Lawrence’s report, the trial court then further discussed
Lawrence’s testimony about CW and the potential consequences of CW maintaining a relationship
with TAW:
Mr. Lawrence testified unequivocally to the likelihood of harm to [TAW]
if [CW] were allowed contact:
And what I have seen like when I was at Green Hill School and also looking at the
guys in Longview Work Release, is that when an individual is in prison they’re told
when to get up, what they’re going to do for day, what they’re going to eat, when
they’re going to go to bed. They never really truly have to exercise any decision-
making skills. And so, what happens is you end up with a 40 or 45 year old man,
who functions like a 13 or 14 year old emotionally. And they become very ah,
they’re self-centered, ah, they don’t plan things well, and that’s one of the reasons
they get caught so easily.
Now, his release date or earliest release date is October 20, 2020. [TAW] is now
10; by 2020, he will be 12. In [TAW’s] development he is just starting to get
through this security and love stage. He has a stable home, his mother, his stepdad,
both love him. They provide a secure home for him, and it’s a stable home life.
By the time he gets to be 12, he’s going to be moving into dealing with his social
needs, and he’s going to be, his friends are going to become a lot more important
to him than his parents. And so, what happens is if [CW] comes out of prison in a
13
No. 52684-1-II
couple years, and starts trying to visit with [TAW], you’re going to have one
teenager basically interacting with another. And [CW] hasn’t shown, from my
understanding of his record, that he can remain clean and sober or remain out of
trouble with the law, when he’s not in a very structured setting.
And my concern is that if [CW] tries to start renewing a relationship with [TAW],
is that [TAW] will be ultimately disappointed because [CW] will either get high
again or get into trouble again. And he’s going to start missing appointments to
visit. And [TAW], at his state of development, [TAW] is going to start internalizing
some of that, that he feels that it maybe was his fault. And I see that as being very
destructive . . . , and when he’s trying to visit his biological father, that [CW] can
be there on a regular basis.
CP at 63-64 (quoting 1 RP at 76-78) (emphasis added by trial court). The trial court also
acknowledged that Horne was an expert witness and that Horne testified that the Tribe was aware
of and supported the proposed adoption.
Ultimately, the trial court concluded that the evidence established beyond a reasonable
doubt that maintaining “contact” between CW and TAW “would likely result in serious emotional
or physical damage to the child.” CP at 65 (FF E). The trial court stated,
The evidence is sufficient for the [c]ourt to find beyond a reasonable doubt,
that contact by the child at issue, TAW, with [CW] would likely result in serious
emotional or physical damage to the child. As indicated above, [CW] is impulsive
and remains addicted to methamphetamine/heroin. He has an extensive criminal
record and is likely to commit property crimes if released. The child has seen [RB]
as his father for over six years. The fact that [CW] has an addiction to narcotics
and has a long history of committing criminal acts impulsively and has abandoned
the child for the past seven years, leads to the conclusion beyond a reasonable doubt
that actual harm to the child would occur if the child was allowed to have contact
with [CW].
....
Likewise, Mr. Lawrence testified, and provided in his [r]eport, that [CW]
has engaged in significant domestic violence toward the child’s mother and has not
been treated for this condition.
14
No. 52684-1-II
Untreated domestic violence tendencies, which could lead to violence [in]
the presence of the child, is a basis for determining that contact with the child here
would likely result in serious or physical harm to the child.
CP at 65 (citations omitted).
The trial court also entered the following findings related to CW:
1. [CW] is not a fit parent because he has failed to perform parental duties under
circumstances showing a substantial lack of regard for his parental obligations.
(RCW 26.33.120) Since 2009, [CW] has not expressed love and affection for the
child, has not expressed personal concern over the health education and general
well-being of the child, has failed to provide necessary food clothing and medical
care or the means to obtain the same, has not provided adequate domicile, and has
failed to furnish social or religious guidance. In [re] Adoption of Lybbert, 75 Wash. 2d
671[,453 P.2d 650] (1969).
2. Pursuant to RCW 26.32.040(4), [CW] has abandoned the child herein under
circumstances showing a willful substantial lack of regard for parental functions
3. While in prison, [CW] made no serious efforts to locate his son or attempt to
establish contact. Even if it could be said that he had made some efforts, which the
[c]ourt does not find, whenever he encountered resistance or obstacles he never
demonstrated sincere interest in retaining his parental rights. [In re Interest of
Skinner, 97 Wash. App. 108, 122, 982 P.2d 670 (1999)].
CP at 65-66 (FF F) (emphasis added). The trial court also found that the adoption was in TAW’s
best interests.13
13
The trial court’s conclusion stated,
[T]he [c]ourt finds beyond a reasonable doubt that [it] is in the best interests of the
child, TAW, to be adopted by the Petitioner, [RB]. Considering the physical and
mental condition of the child, as testified to by [RB] and [CB], the home
environment family life, the health of the parties, the facilities available to the child,
and the resources of [CB and RB], and also including the consideration of the
cultural heritage of both the mother and the child as Native Americans, there can
be no doubt that the best interests of [t]he child, TAW is to be adopted by [RB].
It is also of some significance to the [c]ourt that the child, TAW, not be
forced to live in limbo for the rest of his young life. As it stands now, if the adoption
were not granted, the child, TAW, would be in the position of having a natural
15
No. 52684-1-II
Finally, the trial court entered the following conclusions of law:
1) The above Findings of Fact have been proven beyond a reasonable doubt.
....
7) [CW] has been provided with access to reasonably available and culturally
appropriate preventative, remedial, or rehabilitative services. The Shoalwater Bay
Indian Tribe, and the Washington State Department of Corrections have actively
worked with [CW] to engage him in remedial services and rehabilitation programs
beyond simply providing referrals to such services.
8) [CB] actively engaged in preserving the family unit, and at the same time protect
herself from further serious harm, between April 2009 and June 13, 2013.
9) Any future contact between the child, TAW, and [CW] is likely to result in
serious emotional or physical damage to the child.
10) It is in the child’s best interest that [CW’s] parental rights be terminated.
CP at 66-67.
CW appeals the termination of his parental rights and the order granting the adoption
petition of TAW.
ANALYSIS
CW argues that the trial court erred when it (1) concluded that CB and RB had engaged in
“active efforts” based on its conclusions that visitation was not a remedial service and that CB and
RB’s efforts to provide remedial services after 2012 would have been futile, (2) concluded that
Lawrence was qualified as an expert witness under ICWA based on its erroneous finding that
Lawrence had over 30 years of experience as a GAL, and (3) concluded that continuing CW’s
father whom he is not able to see because of various restraining orders and
protection orders, and the unlikelihood that any of those would change, and that the
present active and loving father-figure could never be his “legal father”. Common
sense and traditional notions of decency and a fair application of existing law
should keep this from happening.
CP at 66 (FF G) (citation omitted).
16
No. 52684-1-II
parental rights would likely result in serious emotional or physical damage to TAW. These
arguments are either waived or fail.
I. LEGAL PRINCIPLES AND BACKGROUND
ICWA was enacted to protect Native American children, families, and tribes from
“‘abusive child welfare practices that resulted in the separation of large numbers of Indian children
from their families and tribes through adoption or foster care placement, usually in non-Indian
homes.’” T.A.W. II, 186 Wash. 2d at 841 (quoting Adoptive Couple v. Baby Girl, 570 U.S. 637, 642,
133 S. Ct. 2552, 186 L. Ed. 2d 729 (2013)). ICWA, and the state equivalent WICWA, apply when
the child qualifies as an Indian child;14 the parents’ status is not relevant. T.A.W. II, 186 Wash. 2d at
847, 857. Additionally, ICWA and WICWA apply in stepparent adoption cases. T.A.W. II, 186
Wash. 2d at 850-51.15
Under both ICWA and WICWA, before a trial court can terminate the relationship between
the Indian child and the child’s parent, the party seeking to terminate the parental rights must also
establish 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); see also RCW 13.38.130(1). The petitioning party must
14
The parties do not dispute that TAW is an Indian child.
15
We are aware that a federal district court in Texas concluded that ICWA was unconstitutional
for many reasons, including that it violates equal protection and improperly requires state agencies
to apply federal standards to state claims. Brackeen v. Zinke, 338 F. Supp. 3d 514 (N. D. Texas,
2018). The parties do not raise any issue with respect to ICWA’s or WICWA’s constitutionality,
so we do not address the constitutionality of ICWA or WICWA. We note that although, Brackeen
was reversed by the Fifth Circuit Court of Appeals, a motion for rehearing was recently granted in
the appeal. Brackeen v. Bernhardt, 937 F.3d 406, rehearing granted, ___ F.3d ___, 2019 WL
5847349 (Fifth Cir., 2019).
17
No. 52684-1-II
establish active efforts by clear, cogent, and convincing evidence. In re Dependency of A.M., 106
Wash. App. 123, 134-35, 22 P.3d 828 (2001). The active efforts requirement applies to privately
initiated terminations. T.A.W. II, 186 Wash. 2d at 854.
Additionally, under both ICWA and WICWA, in order to terminate parental rights, the trial
court must find, based on evidence “including testimony of a qualified expert witness,” that the
petitioning party has proved beyond a reasonable doubt “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(f); RCW 13.38.130(3).
When reviewing termination and adoption orders under ICWA or WICWA, we determine
whether the trial court’s findings of fact are supported by substantial evidence from which a
rational trier of fact could find the necessary facts by the relevant evidentiary standard. In re
Welfare of L.N.B.-L., 157 Wash. App. 215, 243, 237 P.3d 944 (2010). Substantial evidence exists
when the evidence would persuade a fair-minded rational person of the truth of the declared
premise. L.N.B.-L., 157 Wash. App. at 243. We defer to the finder of fact “on issues of witness
credibility and the persuasiveness of the evidence.” L.N.B.-L., 157 Wash. App. at 243. Unchallenged
findings are verities on appeal. L.N.B.-L., 157 Wash. App. at 243.
We review the trial court’s conclusions of law de novo to determine whether the trial
court’s findings support the conclusions of law. In re Welfare of A.L.C., 8 Wash. App. 2d 864, 871,
439 P.3d 694 (2019). We review conclusions of law erroneously characterized as findings of fact
as conclusions of law. A.L.C., 8 Wash. App. 2d at 871.
18
No. 52684-1-II
II. ACTIVE EFFORTS
CW first challenges the trial court’s conclusion that there had been “active efforts” to
provide him with remedial services and rehabilitative programs designed to prevent the breakup
of the Indian family as required under ICWA because CB and RB failed to “facilitate visitation”
between TAW and CW after 2012. Specifically, CW argues that (1) the trial court erred when it
concluded that “facilitating visitation” 16 was not a remedial service,17 and (2) CB and RB failed
to facilitate visitation by making an active effort to make domestic violence counseling available
for CW when such counseling was a precondition to visitation.18
CB and RB concede that “the case law and statute” establish that facilitating “visitation
can be a part of active efforts,” but they assert that facilitating visitation was not appropriate under
the circumstances here. Br. of Resp’t at 22. They also assert that they clearly showed that active
efforts were made to facilitate visitation to the extent possible. We agree that facilitating visitation
can be part of an active effort to preserve a family, and we also agree with CB and RB that active
efforts were made to facilitate visitation.
16
We recognize that the trial court appears to have concluded that “‘visitation is not itself
considered a service,’” not whether facilitating visitation can be a remedial service. CP at 61 (FF
C) (quoting S.B.-L., 2014 WL 4198289 *6). But this conclusion also suggests that the trial court
was unwilling to consider whether CB and RB’s failure to facilitate visitation weighed against
finding that they engaged in active efforts to prevent the breakup of the Indian family.
17
This argument relates to CW’s assignments of error 2 and 7 and challenges the portion of the
trial court’s unnumbered finding of facts in part C of its findings of fact, in which the trial court
states, “But visitation is not one of the requirements under the statute.” CP at 61 (FF C); Br. of
Appellant at 1-2. This statement is more properly characterized as conclusion of law. A.L.C.,
8 Wash. App. 2d at 871.
18
This argument relates to CW’s assignments of error 1, 3, and 7.
19
No. 52684-1-II
A. FACILITATING VISITATION
We first address whether facilitating visitation can be an active effort. We hold that it can.
Under WICWA, CB and RB were required to “make timely and diligent efforts to provide
or procure . . . services, including engaging the parent . . . in reasonably available and culturally
appropriate preventative, remedial or rehabilitative services.” RCW 13.38.040(1)(a). WICWA
defines “active efforts,” as “a documented, concerted, and good faith effort to facilitate the parent’s
. . . receipt of and engagement in” the “remedial services and rehabilitation programs.” RCW
13.38.040(1)(a)(iii), (b). But this definition does not help determine whether facilitating visitation
is a remedial service or rehabilitative program because the statute does not specify what remedial
services or rehabilitative programs are required or recommended. Similarly, “ICWA . . . does not
define ‘active efforts,’ nor does it indicate the requisite amount of services required before the
termination of parental rights may occur.” T.A.W. II, 186 Wash. 2d at 842.
A federal regulation, however, is helpful. 25 C.F.R. § 23.2 defines active efforts and
suggests that supporting visitation is among the actions that can help establish active efforts.
25 C.F.R. § 23.2 provides, in part:
Active efforts means affirmative, active, thorough, and timely efforts
intended primarily to maintain or reunite an Indian child with his or her family.
Where an agency is involved in the child-custody proceeding, active efforts must
involve assisting the parent or parents or Indian custodian through the steps of a
case plan and with accessing or developing the resources necessary to satisfy the
case plan. To the maximum extent possible, active efforts should be provided in a
manner consistent with the prevailing social and cultural conditions and way of life
of the Indian child’s Tribe and should be conducted in partnership with the Indian
child and the Indian child’s parents, extended family members, Indian custodians,
and Tribe. Active efforts are to be tailored to the facts and circumstances of the
case and may include, for example:
....
20
No. 52684-1-II
(7) Supporting regular visits with parents or Indian custodians in the most natural
setting possible as well as trial home visits of the Indian child during any period of
removal, consistent with the need to ensure the health, safety, and welfare of the
child[.]
(Emphasis added).
Additionally, the cases CW cites, In re Crystal K., 226 Cal. App. 3d 655, 276 Cal. Rptr.
619 (1990), and In re Interest of C.A.V., 787 N.W.2d 96 (Iowa 2010), support his assertion that
facilitating visitation can be considered when evaluating whether active efforts were made. In
Crystal K., the basis for the parental termination proceeding was the biological father’s alleged
abandonment of the child. 226 Cal. App. 3d at 666-67. The California Court of Appeals stated
that the remedial efforts had to be directed at remedying the basis for the parental termination
proceeding, abandonment, and that the mother could “meet [the] remedial and rehabilitative
services requirement by proving, for example, that efforts have been made to contact the tribe to
assist in maintaining the relationship between [the biological father and the child.]” 226 Cal. App.
3d at 667. We agree that Crystal K. demonstrates that facilitating visitation that maintains a
relationship between parent and child can be an example of an active effort.
Similarly, in C.A.V., the Iowa Court of Appeals held that the mother had satisfied the active
efforts requirement, in part, by taking steps to ensure that her daughter maintained contact with
the father, even after his incarceration. 787 N.W.2d at 103. Again, we agree that C.A.V.
demonstrates that facilitating visitation can be an example of an active effort.
As 25 C.F.R. § 23.2 and these cases show, facilitating an ongoing relationship between the
child and the parent is one of many possible active efforts CB and RB could have engaged in in
order to help prevent the breakup of the family.
21
No. 52684-1-II
But Crystal K., C.A.V., and C.F.R. § 23.2 do not require facilitating visitation in all
circumstances. “Active efforts are to be tailored to the facts and circumstances of the case.”
25 C.F.R. § 23.2. And the final clause of 25 C.F.R. § 23.2(7) requires that the child’s contact with
the parent be “consistent with the need to ensure the health, safety, and welfare of the child.”
25 C.F.R. § 23.2(7).
Here, there were protection orders prohibiting contact, which is strong evidence that
contact between CW and TAW was not “consistent with the need to ensure the health, safety, and
welfare of the child.”19 25 C.F.R. § 23.2(7). And CW does not cite any case law establishing that
facilitating visitation is required when there is an active protection order in place. Essentially,
facilitating visitation was not reasonably available, and a parent has no duty to provide a resource
that is not reasonably available. RCW 13.38.040(1)(a); C.A.V., 787 N.W.2d at 103. Here, where
there were protection orders prohibiting CW’s contact with TAW until CW complied with a
domestic violence treatment requirement, CB and RB cannot be faulted for failing to facilitate
visitation between CW and TAW after September 2012.
19
CW argues the portion of the trial court’s ruling that states, “This [c]ourt cannot order [CB] to
foster a relationship between the [c]hild and [CW] that the Tribe forbids,” implies that the Tribe
forbade contact between CW and TAW. Br. of Appellant at 20; CP at 62 (FF D). He contends
that this statement is incorrect because the Tribe did not seek the protection order. CW is correct
that it was CB, not the Tribe, who obtained the protection order. But, read in context, the trial
court was not asserting that the Tribe forbade the contact. Rather the trial court was stating that it
must give effect to an order issued by the Tribal court.
22
No. 52684-1-II
B. DOMESTIC VIOLENCE TREATMENT
CW further argues that the evidence did not support the trial court’s conclusion of law that
CB and RB engaged in active efforts after 2012 because CB and RB did not contact the Tribe to
attempt to facilitate the domestic violence treatment that was required for CW to be able to
challenge the protection orders issued in September 2012 and October 2015. As discussed below,
the findings of fact support the trial court’s conclusion of law.
Although CB and RB were not obligated to facilitate visitation when the protection orders
were in place, 20 they still had an obligation to make active efforts to provide the remedial or
rehabilitative services that were reasonably available under the circumstances. Arguably, they
could have provided support by assisting CW in accessing the domestic violence resources when
CW was not incarcerated. Once CW was arrested and incarcerated, however, CB and RB no longer
had any ability to provide for any such remedial services. Thus, we examine whether CB and RB
could have provided support during the periods CW was not incarcerated after the protection
orders were issued.21
CW was released from prison in September 2012 and remained in the community until he
was rearrested in January 2013. The trial court found that CB obtained a Tribal court domestic
violence protection order preventing CW from contacting her or TAW shortly after CW’s
September 2012 release from prison. On October 10, 2012, CW successfully moved to modify
20
The September 2012 protection order was in place until, at the least, the time of the 2018 trial.
The October 2015 protection order expired on October 14, 2018.
21
The first domestic violence protection order was issued on September 12, 2012. The second
domestic violence protection order was issued on October 14, 2015.
23
No. 52684-1-II
this order to allow for purging conditions that would allow him to petition for a rehearing on the
matter “[u]pon at least 6 months of [domestic violence] classes/programs.” CP at 50 (FF A48).
The trial court also found that on October 10, Horne advised CW that the Tribe would pay for any
treatment he needed even though he was no longer married to CB. The trial court further found
that CW did not take advantage of this offer.
The trial court’s finding that the Tribe offered to pay for treatment establishes that remedial
services were in fact offered to CW when the September 2012 protection order was issued.22
Accordingly, the trial court did not err when it concluded that the active efforts requirement was
satisfied during the period of time between CW’s September 2012 release and his January 2013
arrest.
CW was released from incarceration in September 2015 and was in custody again by
approximately June 2016.23 In October 2015, CB obtained another Tribal court domestic violence
protection order prohibiting contact between CW and TAW. The trial court found that this
protection order did not contain a purging condition, and CW does not challenge this finding so it
is a verity on appeal. L.N.B.-L., 157 Wash. App. at 243. Because this protection order did not contain
22
CW argues that “C.B. did not contact the Tribe to attempt to facilitate the provision of [the
domestic violence treatment]. In order to make ‘active efforts,’ CB could have--and should have-
-contacted the Tribe to pay for and facilitate this service. CB sat on her hands.” Br. of Appellant
at 19 (citations omitted). Given this statement, CW may also be arguing that CB and RB, rather
than the Tribe, were required to supply the resources. But CW cites no authority requiring
petitioners in the termination action to facilitate the provision of treatment when those services
have already been offered to the parent by another entity. Accordingly, we do not further address
this argument. Cowiche Canyon Conservancy, 118 Wash. 2d at 809.
23
The trial court made findings as to the dates of CW’s 2016 offenses and his 2016 pleas, but it
did not make a finding as to when CW returned to custody. It is most likely that he was in custody
by the time he pleaded guilty to taking a motor vehicle without permission in June 2016.
24
No. 52684-1-II
a purging condition, and there was such a short time between CW’s release in September 2015 and
the issuance of the October 2015 protection order, there were no services CB and RB could have
provided to facilitate TAW’s visitation with CW when he was in the community from September
2015 to approximately June 2016. Furthermore, even if there had been a purging condition, Horne
had already told CW that the Tribe would help facilitate any necessary treatment. Accordingly,
the trial court did not err when it concluded that the active efforts requirement was satisfied during
the period of time between CW’s September 2015 release and his next incarceration in or around
June 2016.
Although the trial court erred when it concluded that facilitating visitation was not a
remedial service that CB and RB were obligated to make active efforts to provide, such services
were either not reasonably available or were provided. And CW does not show that the trial court
erred when it concluded that CB and RB had proved they had made active efforts to provide CW
with remedial services and rehabilitative programs designed to prevent the breakup of the Indian
family as required under ICWA.
C. FUTILITY
CW further argues that the trial court erred in applying “some sort of futility doctrine to
excuse [CB and RB] from” making an active effort to facilitate visitation. Br. of Appellant at 19-
20. Citing In re J.L., 483 Mich. 300, 770 N.W.2d 853 (2009), CW asserts that other courts have
rejected application of the “futility doctrine” in the ICWA context. This argument fails.
Although the trial court used the term “futile,” it did not use the term in the same sense that
it was used in J.L. CP at 61-63 (FF D). Instead, the trial court here was discussing whether the
service was reasonably available under the circumstances of the case. See RCW 13.38.040(1)(a)
25
No. 52684-1-II
(petitioners are required to “[m]ake timely and diligent efforts to provide or procure . . . services,
including engaging the parent . . . in reasonably available and culturally appropriate preventative,
remedial or rehabilitative services.”) (Emphasis added).
Under RCW 13.38.404(1)(a), CB and RB were required to make active efforts to provide
“reasonably available” remedial or rehabilitative services. And “[a]ctive efforts are to be tailored
to the facts and circumstances of the case.” 25 C.F.R. § 23.2. Excusing petitioners from having
to make active efforts to provide services that were not reasonably available to the respondent is a
method of tailoring the active efforts to the facts and circumstances of the case. CW cites no
authority requiring the trial court to require the petitioners to attempt to provide services that are
not reasonably available under the circumstances. RAP 10.3(a)(6); Cowiche Canyon
Conservancy, 118 Wash. 2d at 809.
Furthermore, even if the trial court was attempting to apply a futility doctrine and that
approach was improper, “[e]rror without prejudice . . . is not grounds for reversal.” In re Welfare
of M.G., 148 Wash. App. 781, 791, 201 P.3d 354 (2009). As discussed above, CW does not show
that the trial court erred when it concluded that CB and RB had proved they had made active efforts
to provide him with remedial services and rehabilitative programs designed to prevent the breakup
of the Indian family as required under ICWA, thus, even if the trial court improperly referred to a
futility doctrine, any such error was harmless.
III. QUALIFIED EXPERT WITNESS
CW next argues that the trial court erred in concluding that Lawrence was a qualified expert
witness because it relied on the “faulty premise” that he had 30 years of experience as a GAL and
because Lawrence lacked experience with ICWA and Indian families. CW has waived the
26
No. 52684-1-II
argument regarding whether Lawrence was a qualified expert witness under ICWA; thus, whether
the finding that Lawrence had 30 years of experience as a GAL is harmless.
Both ICWA and WICWA require that before a court can involuntarily terminate the
parental rights of a parent of an Indian child, the petitioning party must provide “testimony of a
qualified expert witness” establishing beyond a reasonable doubt that the continued relationship
with that parent is likely to result in serious emotional or physical damage to the child.24 25 U.S.C.
§ 1912(f); RCW 13.38.130(3). However, a party’s failure to object to the witness’s qualifications
24
ICWA provides:
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(f).
Under RCW 13.38.130(4)(b), a person seeking to terminate the parental rights to an Indian
child must identify a witness who meets one or more of the following criteria:
(i) A member of the child’s Indian tribe or other person of the tribe’s choice who
is recognized by the tribe as a knowledgeable regarding tribal customs as they
pertain to family organization are child rearing practices for this purpose;
(ii) Any person having substantial experience in the delivery of child and family
services to Indians, and extensive knowledge of prevailing social and cultural
standards and child rearing practices within the Indian child’s tribe;
(iii) Any person having substantial experience in the delivery of child and family
services to Indians, and knowledge of prevailing social and cultural standards and
child rearing practices in Indian tribe’s with cultural similarities to the Indian
child’s tribe; or
(iv) A professional person having substantial education and experience in the area
of his or her specialty.
27
No. 52684-1-II
at trial waives the issue on appeal. ER 103(a); RAP 2.5(a).25 CW did not object to Lawrence’s
testimony based on whether Lawrence was a qualified to testify as a qualified expert witness.
Thus, he has waived this issue.
CW also argues that the trial court’s finding of fact that Lawrence had 30 years of
experience as a GAL is not supported by the evidence. Although we agree that the evidence does
not support this finding because Lawrence testified that he had only one year of experience as a
GAL, because CW did not challenge Lawrence’s qualifications as an expert witness under ICWA,
this error is harmless.
IV. SERIOUS EMOTIONAL OR PHYSICAL DAMAGE
Finally, CW argues that the trial court’s conclusion that a continued relationship between
him and TAW is likely to result in serious emotional or physical damage to the child is not
supported by substantial evidence. We disagree.
Under ICWA and WICWA, CB and RB have the burden of proving beyond a reasonable
doubt that “custody of the child by [CW] . . . is likely to result in serious emotional or physical
damage to the child.” 25 U.S.C. § 1912(f), RCW 13.38.130(3). The trial court concluded that
they had carried their burden. We agree with the trial court.
25
See also In re Interest of R.L.F., 437 N.W.2d 599, 602 (Iowa, 1989) (failure to object waived
“any improprieties in” expert’s testimony); In re Interest of B.L.L.S., 557 S.W.3d 486, 494 (Mo.,
2018) (failure to object waived argument regarding whether witness was qualified expert witness);
In re Interest of D.A.C., 933 P.2d 993, 1002 (Ut., 1997) (failure to object to testimony by mother’s
witness on grounds that witness was not a qualified expert witness waived the issue on appeal).
28
No. 52684-1-II
The trial court found, based on Lawrence’s testimony, that continuing the relationship
between CW and TAW could be “very destructive” because CW would likely be incapable of
maintaining the relationship and, due to TAW’s “state of development,” TAW could
“internaliz[e]” the problems in the relationship and start to believe that he was at fault. CP at 64
(FF E). In addition, the trial court found that CW has issues with impulsivity; continued drug
addiction; and a history of untreated domestic violence against CB, and there was a chance that
TAW could witness such violence. The trial court also noted that CW had not been part of TAW’s
life for at least seven years, that CW had an extensive criminal record, and that CW was at high
risk of reoffending upon release.
The trial court further considered the need for finality to allow TAW to fully integrate into
his existing family, noting that it was unlikely that TAW and CW could achieve a real relationship
in light of “various restraining orders and protection orders, and the unlikelihood that any of those
would change[.]” CP at 66 (FF G). These findings, as a whole, support the trial court’s conclusion
that continued contact between CW and TAW was likely to result in serious emotional damage to
TAW.
CW argues, however, that Lawrence’s testimony did not support the conclusion of law
stating that CW’s continued legal relationship to TAW would likely result in serious emotional or
physical harm to TAW because Lawrence (1) did not discuss TAW’s physical well-being, (2)
merely suggested that TAW could be disappointed, and (3) did not establish how CW’s continued
29
No. 52684-1-II
legal relationship with TAW could damage his secure and stable home with CB and RB.26 This
argument is unpersuasive.
First, the trial court was not required to find that the relationship could be both emotionally
and physically harmful. 25 U.S.C. § 1912(f) (court must find that continued custody “is likely to
result in serious emotional or physical damage to the child”). So there was no need for evidence
regarding TAW’s physical well-being.
Second, Lawrence testified that it was unlikely CW could maintain a relationship with
TAW and that, because of his age, TAW could blame himself for this failure, which would be
“very destructive.” CP at 64 (FF E). Lawrence’s testimony that TAW would take responsibility
for CW’s failures and that this would be “very destructive” to TAW is more than an assertion that
TAW could be disappointed. Instead, this statement is evidence that a continued relationship with
CW was potentially emotionally damaging to TAW.
26
In their argument, CB and RB refer to other evidence that was not included in the trial court’s
findings of fact. Because the trial court’s conclusion of law, that continued contact between CW
and TAW was likely to result in serious emotional damage to TAW, is a conclusion of law, we do
not consider evidence presented that was not part of the trial court’s written findings of fact in our
analysis. A.L.C., 8 Wash. App. 2d at 864 (we review the trial court’s conclusions of law de novo to
determine whether the trial court’s findings support the conclusions of law); L.N.B.-L, 157 Wn.
App. at 249 (treating conclusion that continued custody of child by parents is likely to result in
serious emotional or physical damage to the child as a conclusion of law); Casterline, 168 Wn.
App. at 382-83 (2012) (determinations made by a process of legal reasoning from the facts in
evidence are conclusions of law).
30
No. 52684-1-II
Additionally, although the trial court was required to consider testimony from a qualified
expert witness, the trial court was not restricted solely to Lawrence’s testimony.27 Lawrence’s
testimony in conjunction with the other evidence revealed CW’s past inability to maintain any
kind of relationship with TAW, his failure to seek or successfully complete treatment that would
assist him in having a relationship with TAW, and the existence of domestic violence and CW’s
failure to seek treatment for his domestic violence issues. These facts, combined with Lawrence’s
testimony, support the trial court’s conclusion that there was a likelihood of serious emotional
harm beyond a reasonable doubt.
CW also notes that Lawrence recognized that CW and his family objected to the
termination because they did not want TAW to think CW had given up on him and argues that the
risk of thinking that his natural father did not want him would be far more damaging to TAW than
the possibility that CW would “disappoint[ ]” him. Br. of Appellant at 31. CW does not direct us
to anything in the record establishing that the trial court failed to balance the risk of harm to TAW
due to severing CW’s parental rights with the risk of harm to TAW caused by maintaining the
relationship. And, despite CW’s assertion that he wanted to maintain a relationship with his son,
CW’s actions have not been consistent with this claim. Beyond opposing the termination and
27
25 U.S.C. § 1912(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.”
(Emphasis added).); RCW 13.38.130(3) (“No involuntary termination of parental rights may be
ordered in a child custody 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.”) (Emphasis added.)
31
No. 52684-1-II
adoption petitions and successfully moving to have a purging clause added to one of the protection
orders, CW’s actions overwhelmingly demonstrated that he was unable or unwilling to do what it
would take to have a relationship with TAW because he (CW) repeatedly failed to engage in the
services offered and repeatedly engaged in behavior that placed his ability to be part of TAW’s
life in peril. Accordingly, this argument fails.
CW also asserts that the trial court relied in part on the fact that the Tribe approved the
adoption and argues that the Tribe’s approval was not relevant to whether the continued
relationship would cause serious damage. There is nothing in the trial court’s findings of fact and
conclusions of law suggesting that the trial court considered the Tribe’s approval when
determining the serious emotional or physical damage element. Accordingly, this argument fails.
CW further contends that the trial court erred in considering the past domestic violence
because the domestic violence was solely between CW and CB, CB was now in a stable
relationship with someone else, and CB could maintain no contact orders prohibiting contact
between her and CW. CW argues that “[t]he circumstances do not show any likelihood of domestic
violence occurring within the sight or sound of TAW.” Br. of Appellant at 32.
But the trial court found that CW had an extensive history of untreated domestic violence
with CB, that CW had raped CB before their marriage, 28 and that CW had struggled with
impulsivity and drug use that resulted in his criminal behavior. The trial court also found that CW
had previously been convicted for violating a domestic violence protection order. Given CW’s
history of abuse, rape, impulsivity and drug use, and prior violation of a domestic violence court
28
Sometime before their marriage, CW raped CB.
32
No. 52684-1-II
order, the trial court properly concluded that there was a risk of exposing TAW to domestic
violence should CW retain his parental rights because contact or interaction with CB would be
difficult to avoid. Thus, we are not persuaded by this argument.
CW next argues that the trial court improperly relied on “abandonment” when the record
showed that CW’s lack of contact with TAW was due to CB’s actions and that our Supreme Court
had expressly rejected an abandonment finding in the first appeal. Br. of Appellant at 32.
Regardless of whether the findings of fact supported this conclusion, this error is harmless.
Prior to its repeal in 1984, the termination statute required the trial court to determine
“whether such parent has deserted or abandoned the child under circumstances showing a willful
substantial lack of regard for parental obligations.” Former RCW 26.32.056 (1979), repealed by
Laws of 1984, ch. 155 § 38. But the current statute, RCW 26.33.120, does not require an
abandonment finding.29 In re Adoption of McGee, 86 Wash. App. 471, 476, 937 P.2d 622, 625
(1997). Furthermore, because TAW is an Indian child, CB and RB had to meet the test from
ICWA, which likewise does not require an abandonment finding. See 25 U.S.C. § 1912(f)
(requiring petitioner to establish beyond a reasonable doubt “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”). Thus, the trial court’s abandonment finding is error. However, as discussed above,
the trial court’s other findings support the termination; therefore, any error is harmless.
29
We note that trial court’s findings cite to In re Adoption of Lybbert, 75 Wash. 2d 671, 453 P.2d
650 (1969), and former RCW 26.32.040(4) (1976). CP at 65-66 (FFs F 1, F 2d). Lybbert is
inapplicable here because it addresses the prior adoption statute, former RCW 26.32.040 (1955),
which required a showing of abandonment. And former RCW 26.32.040 (1976) is irrelevant
because it was repealed in 1979. Laws of 1979, Ex. Sess, ch. 165 § 23.
33
No. 52684-1-II
CONCLUSION
We hold that although facilitating visitation can be a remedial service, it was not reasonably
available under the circumstances of this case after September 2012. Thus, CW does not show
that the trial court erred when it concluded that CB and RB had proved they had made active efforts
to provide CW with remedial services and rehabilitative programs designed to prevent the breakup
of the Indian family as required under ICWA. We further hold that CW waived his argument
challenging the GAL’s qualifications as a qualified expert witness and that, in light of this holding,
any error in the trial court’s finding that the GAL had 30 years of experience is harmless. Finally,
we hold that the trial court’s findings support its conclusion that continuing CW’s parental rights
would likely result in serious emotional or physical damage to TAW. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MAXA, C.J.
LEE, J.
34