IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Dependency of:

A.T.

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)

)

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No. 39603-7-III

PUBLISHED OPINION

PENNELL, J. — 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-ofhome placement due to safety concerns prompted by signs that A.T.’s father has 

significant untreated mental illness. 

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. 

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 

FILED

JANUARY 25, 2024

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
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2

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. 

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

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 

 

1 “Indian” is the statutory term of art used in ICWA and WICWA. See In re 

Dependency of R.D., 27 Wn. App. 2d 219, 230 n.7, 532 P.3d 201 (2023) (citing 25 U.S.C. 

§ 1903(4); RCW 13.38.040(7)). A.T. is an Indian child because his maternal grandmother 

is an enrolled member of the Oglala Sioux Tribe. See In re Dependency of Z.J.G., 196 

Wn.2d 152, 174-75, 471 P.3d 853 (2020) (noting ICWA and WICWA apply whenever a 

court has reason to know a child has tribal heritage); In re Adoption of T.A.W., 186 Wn.2d 

828, 847, 383 P.3d 492 (2016) (noting, for purposes of ICWA and WICWA, an “Indian 

family” is an Indian child’s family, regardless of the parent’s Indian status).
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3

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

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. 

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.

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 
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(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.

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.

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 
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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.

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. 

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.

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 
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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

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. 

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

 

2 It was not typical for two social workers to jointly visit a parent’s home, but 

the Department had instituted an unofficial policy of not allowing its female employees 

to be alone with the father after he purportedly made “inappropriate comments” to a prior 

social worker. 1 RP (Dec. 8, 2022) at 34.
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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.

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.

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, 
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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. 

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.

The crisis responders were unable to engage A.T.’s father in a productive 

conversation. He talked about conspiracies, socialism, and his belief that people had come 

to his door asking to buy A.T. The responders noted the apartment’s kitchen was mostly 

devoid of food, and all of the smoke detectors had been dismantled or covered in paper. 

Based on their observations, the police decided to effectuate an emergent removal of A.T.

that night.4

 

3 The father subsequently admitted to “heavy” use of methamphetamine. 1 RP 

(Dec. 15, 2022) at 260.

4 A.T. was placed with his paternal aunt the next day. By mid-November, the aunt 

found herself unable to manage A.T.’s behavior, and A.T. was eventually placed in a 

foster home.
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Post-removal facts and the dependency process

Post-removal interactions with A.T. revealed signs of medical and emotional 

neglect. In addition to his untreated eye conditions, A.T. was thin and poorly groomed. 

His skin was scarred by apparent insect bites and he had significant tooth decay. 

A.T.’s speech was delayed and it was discovered his academic performance and social 

development were at a kindergarten or pre-kindergarten level. A.T. had significant trouble 

regulating his emotions and often engaged in conduct similar to that of a toddler. A.T.’s 

care providers found he sometimes smeared feces and exhibited sexualized conduct.

The Department petitioned for dependency, alleging A.T. was dependent on the 

basis of having no parent capable of adequately caring for him such that he was in danger 

of substantial damage to his development. See RCW 13.34.030(6)(c).5 The Department 

alleged A.T. would be at “significant risk” of damage if returned to his father, on the 

basis of “unaddressed mental health, . . . substance use, concerns of abuse, [and] 

instability/chaotic lifestyle.” Clerk’s Papers (CP) at 3.

An uncontested shelter care hearing was held on September 14, 2022. At the 

 

5 The petition also alleged abuse and neglect as bases for dependency, see 

RCW 13.34.030(6)(b), but the juvenile court treated the petition as invoking only the 

subsection (6)(c) basis. Just over two months after the petition was filed, A.T.’s mother 

stipulated to entry of an order of dependency and disposition order for out-of-home 

placement.
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hearing, the juvenile court found it would be contrary to A.T.’s welfare for him to return

home and that continued out-of-home placement was necessary to prevent imminent 

harm. The Department recommended the father participate in (1) a chemical dependency 

assessment and any recommended treatment, (2) random urinalysis (UA) testing, 

(3) a parenting assessment, (4) an evidence-based parenting program, (5) mental health 

treatment, (6) a domestic violence assessment, (7) a neuropsychological evaluation, 

and (8) a sexual deviancy assessment, along with following the recommendations of any 

providers. Of these recommended services, the father agreed only to the evidence-based 

parenting program. The court granted the father three supervised visits with his son per 

week.

Justyna Dokken was the social worker assigned to the dependency. Ms. Dokken 

immediately recognized reliable communication might be a barrier for the father, so she 

procured a mobile phone for him with prepaid minutes, and helped him set the phone up. 

The father believed he should have been provided an Apple iPhone instead of an Android 

phone because “Android in itself is socialism.” 1 RP (Dec. 15, 2022) at 292. When the 

father told her he wanted a planner, Ms. Dokken procured one for him and filled in all 

of A.T.’s appointments, as well as the father’s own assessments, into its pages.

For the first two months of the dependency, Ms. Dokken communicated with the 
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father several times per week, via phone calls, text messages, and in-person meetings, and 

maintained at least weekly contact in the following months. Due to the father’s speech 

patterns, each phone call and in-person meeting typically lasted one to two hours. At 

numerous meetings, Ms. Dokken provided the father with written lists of providers for 

each of the Department’s recommended services, along with instructions for how to 

contact such providers and make appointments. She also offered to call providers, 

including mental health professionals, with the father. Despite these offers, the father 

persistently denied any need for most services—including a chemical dependency 

evaluation, mental health treatment, domestic violence assessment, neuropsychological 

evaluation, and sexual deviancy assessment.

The father was willing to do one UA exam in late September. When the father

needed a ride to the testing facility, Ms. Dokken personally drove him there. Ms. Dokken 

parked outside the facility, but when she noticed the father had entered a neighboring 

building by mistake, she got out of the car and steered him to the correct entrance. When 

the father came back out, Ms. Dokken drove him to the nearest bus stop to show him 

where it was in case he returned on his own for another UA exam, and gave him prepaid 

bus passes. The result of this UA exam was negative for all substances, but the father has 

not participated in any further testing. 
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On October 3, 2022, the father participated in an intake session for an evidencebased parenting program. The service provider was unable to complete the intake because 

the father’s pattern of rapid and pressured speech prevented the provider from obtaining 

necessary information. The father insisted on discussing his conspiracy theories about 

the Department. He also made comments about the female service provider’s body and 

talked about how much he loved women. The service provider ultimately concluded 

the father’s mental health would need to stabilize before he could meaningfully 

participate in any parenting program. The provider recommended that a 

neuropsychological evaluation be conducted first before making any further attempts 

to work on the father’s parenting skills.

6

Ms. Dokken summarized her efforts to engage the father with services as follows: 

she provided service letters and referrals for services; she scheduled appointments and 

offered to call service providers; she helped with transportation, both by giving the father 

rides and providing bus passes; she sent the father text messages to remind him of 

appointments; and, upon his request, Ms. Dokken provided the father with a prefilled 

daily planner. Specific to mental health, Ms. Dokken described her efforts to provide

 

6 The Department arranged for the father to meet with another provider for a 

parenting assessment, who made a similar recommendation.
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services as:

I have provided service letters on I believe four or five occasions, I believe 

four. And discussed . . . the list of providers with him and offered to make 

those calls with him. He’s declined to engage in mental health [services] 

and declined my assistance in calling providers.

1 RP (Dec. 20, 2022) at 470. There is no indication Ms. Dokken worked with the father 

to otherwise help him overcome his resistance to mental health treatment. 

The father has been a difficult client for Ms. Dokken. Given his rapid speech 

pattern and insistence on discussing government conspiracies, conversations are often 

long and unproductive. To make things worse, the father’s interactions with Ms. Dokken 

have been peppered with inappropriate sexual comments. The father has sent Ms. Dokken 

text messages commenting on her physical appearance. And he has told Ms. Dokken’s 

coworkers they need to “keep [her] single.” Id. at 447. Ms. Dokken does not feel safe 

being alone with the father. As a result, she always has a second social worker accompany 

her on visits with the father. 

Throughout the dependency, Ms. Dokken has prioritized facilitating the courtordered visitation between A.T. and his father. As has been true for other services, this 

has been extremely difficult. A.T. has often engaged in disruptive outbursts during 

visitation and expressed anger or frustration with his father, which the father has proved 

unable to manage. Meanwhile, the father has attempted to engage with visitation 
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supervisors through inappropriate conversations about the dependency process and 

lengthy conversations about various conspiracies. The visitation facility that originally 

picked up the ongoing referral cancelled regular visits, and multiple other agencies 

thereafter expressed an unwillingness to work with the father on an ongoing basis. 

But Ms. Dokken worked creatively and diligently to arrange for alternate visitation 

opportunities through medical appointments, one-time emergent visits, and offers for 

visits directly supervised by herself. 

Review hearings and fact-finding hearing

The juvenile court held two review hearings between the initial shelter care 

hearing and the dependency fact-finding hearing. One occurred in October and the other 

in November. At each of the hearings, the juvenile court found active efforts had been 

made. See CP at 135, 165-66. The description of active efforts was largely identical in 

both the October and November orders. The court summarized the Department’s active 

efforts as:

[C]onsistent communication with the parents including in person and in 

writing, ensuring the parents are aware of all of the child’s appointments 

and have an opportunity to attend, timely referrals for services, including 

all recommended services, offering to call and calling service providers to 

determine availability, multiple referrals to visitation providers, providing 

phone and minutes and assisting with activation, providing bus passes and 
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gas cards, providing transportation to services, conduct FTDM,[7] inviting 

Tribe to shared planning and all hearings, placing the child with relative 

and supporting that placement by assisting with daycare and transportation, 

providing concrete goods, referring for home study, enrolling child in 

school, and ensuring his educational and medical referrals and appointments 

are addressed.

Id. at 135.8 The court in its November order found that returning A.T. back home would 

subject him to “substantial and immediate danger” based on the father’s “unaddressed 

mental health, unmitigated substance use and . . . unwilling[ness] to change behaviors that 

impact child safety and welfare.” Id. at 166.

The dependency fact-finding hearing was held in December 2022 and lasted 

several days. Witnesses testified consistent with the above summary. One of the witnesses 

was a qualified expert witness (QEW) under ICWA and WICWA. The QEW testified he 

believed removal from the home was in A.T.’s best interest, and opined that continued 

custody of A.T. by his father would likely result in serious emotional or physical damage 

to the child. 

The juvenile court commissioner found, by a “preponderance of the evidence,” 

that A.T. was dependent, that the State had provided active efforts to prevent the breakup

 

7 Family team decision making meetings.

8 The orders also incorporated declarations by Ms. Dokken, which provided 

additional details.
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of A.T.’s family, and that thus far such efforts had been unsuccessful. Id. at 359-60. 

The court cited the state of the father’s mental health as the primary factor obstructing his 

ability to adequately care for A.T. According to the court, the father “has not made any 

progress in addressing or mitigating the challenges [that] brought [A.T.] out of his care.” 

Id. at 379.

The court further found “by clear, cogent, and convincing evidence” that returning 

A.T. to his father would likely result in serious emotional or physical damage to the child. 

Id. at 360.9 The court also found that A.T. would be in “substantial and immediate danger 

or threat of such danger should he be returned to [the father’s] care.” Id. 10

The court ordered a neuropsychological evaluation of the father and 30 days of 

random UA testing. The court declined to order any other services, pending the results 

of the neuropsychological exam.

The father timely appeals.

 

9 This finding is required any time the court orders out-of-home placement of an 

Indian child. See RCW 13.38.130(2).

10 This finding is required where out-of-home placement has been improperly 

ordered; for example, if the Department has not satisfied its obligation to provide active 

efforts. RCW 13.38.160. The juvenile court made this finding under RCW 13.38.160, 

despite also finding the Department had satisfied active efforts, at the request of the State.
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ANALYSIS

There are two stages to a dependency fact-finding and disposition hearing. First, 

the Department must establish a child meets one of the definitions of “[d]ependent child” 

under RCW 13.34.030(6). This finding must be made by a preponderance of the evidence.

RCW 13.34.130. 

The second step of the dependency process is the disposition. Disposition involves 

issues such as the child’s placement, visitation, and the parents’ service plan. A 

dependency does not require a child be placed out of home. See RCW 13.34.130(1)(a). 

But before an out-of-home placement may be ordered, ICWA and WICWA demand 

additional protections for Indian families. First, the juvenile court must find that active 

efforts have been made to prevent the breakup of the family. RCW 13.38.130(1); 

25 U.S.C. § 1912(d). Second, the court must find “by clear and convincing evidence” 

that continued custody by the child’s parents “is likely to result in serious emotional or 

physical damage to the child.” RCW 13.38.130(2); 25 U.S.C. § 1912(e). If active efforts 

have not been provided, the court may not order out-of-home placement unless it finds 

the child would be in “substantial and immediate danger or threat of such danger” in 

the parents’ care. RCW 13.38.160; 25 U.S.C. § 1920; see In re Dependency of A.L.K., 

196 Wn.2d 686, 703-04, 478 P.3d 63 (2020).
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The father does not challenge the trial court’s finding that A.T. meets the 

definition of a “[d]ependent child” under RCW 13.34.030(6). Instead, he first argues 

the Department failed in its obligation to provide active efforts. He also challenges 

the trial court’s determinations that A.T. would (1) suffer likely damage in his care, and 

(2) be in substantial and immediate danger in his care. We address each claim in turn. 

Active efforts 

Both ICWA and WICWA require the Department to engage parents in “active 

efforts . . . designed to prevent the breakup of the Indian family.” RCW 13.38.130(1); 

25 U.S.C. § 1912(d).

11 Under WICWA, the active efforts requirement applies any time 

the court orders an out-of-home placement of an Indian child, including at shelter care 

and dependency fact-finding hearings. See In re Dependency of J.M.W., 199 Wn.2d 837, 

847, 514 P.3d 186 (2022). If the Department has contact with a family that raises a 

“reason to believe” a child is “at risk of physical damage or harm,” it has “an obligation 

to at least begin active efforts to avoid breaking up the family.” Id. at 848.

“Active efforts means affirmative, active, thorough, and timely efforts intended 

primarily to maintain or reunite an Indian child with his or her family.” 25 C.F.R. § 23.2. 

 

11 Both ICWA and WICWA apply to juvenile courts in Washington. “We apply the 

provision that offers greater protections to Indian families.” In re Dependency of G.J.A., 

197 Wn.2d 868, 907, 489 P.3d 631 (2021).
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Active efforts must be “timely and diligent,” RCW 13.38.040(1)(a), and “tailored to the 

facts and circumstances of the case.” 25 C.F.R. § 23.2. The Department must not only 

identify appropriate services for a parent, but work with the parent to “overcome barriers” 

to the provision of services. 25 C.F.R. § 23.2(2); see In re Dependency of R.D., 27 Wn. 

App. 2d 219, 233-34, 532 P.3d 201 (2023). Mere referrals to services are not enough. 

RCW 13.38.040(1)(a)(ii); R.D., 27 Wn. App. 2d at 234. Furthermore, if “optimum 

services” for the family “do not exist or are not available,” active efforts will involve 

“[c]onsidering alternative ways to address the needs of the Indian child’s parents and, 

where appropriate, the family.” 25 C.F.R. § 23.2(10).

To satisfy the active efforts requirement, the Department must “meaningfully 

engage” with a parent to address the services necessary for family reunification. In re 

Dependency of G.J.A., 197 Wn.2d 868, 895, 489 P.3d 631 (2021). Remedial services can 

include “individual, group, and family counseling; substance abuse treatment services; 

mental health services; assistance to address domestic violence; services designed to 

provide temporary child care and therapeutic services for families; and transportation to 

or from any of the above services and activities.” RCW 13.34.025(2)(a). An assessment 

to determine necessary services is not, in and of itself, a remedial service. A.L.K., 196 

Wn.2d at 708 (Montoya-Lewis, J., concurring). 
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Whether the State satisfied the active efforts requirement is a mixed question 

of law and fact. A.L.K., 196 Wn.2d at 697. “We review the underlying findings for 

substantial evidence, but review de novo whether those findings satisfy the requirements 

of ICWA” and WICWA. In re Parental Rights to D.J.S., 12 Wn. App. 2d 1, 37, 456 P.3d 

820 (2020), overturned in part on other grounds by G.J.A., 197 Wn.2d at 901 n.16, 906 

n.17. 12

 

12 A.T.’s father argues the State is required to prove it provided active efforts

by clear, cogent and convincing evidence. We have previously opined as much, but 

those holdings arose in the termination context rather than, as here, in an appeal from 

a dependency fact-finding hearing. See, e.g., D.J.S., 12 Wn. App. 2d at 28; In re 

Dependency of A.M., 106 Wn. App. 123, 134-35, 22 P.3d 828 (2001). By contrast, the 

United States Department of the Interior, Bureau of Indian Affairs “favorably views cases 

that apply the same standard of proof for the underlying action to the question of whether 

active efforts were provided (i.e., clear and convincing evidence for foster care placement 

and beyond a reasonable doubt for [termination of parental rights]).” U.S. BUREAU OF 

INDIAN AFFS., DEP’T OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD 

WELFARE ACT 44 (2016), https://www.bia.gov/sites/default/files/dup/assets/asia/raca/pdf/Guidelines%20for%20Implementing%20ICWA_2016_OIS%20BIA.pdf.

The question of whether the services provided by the Department constitute active 

efforts is one of law, which is not subject to a burden of proof. See In re Welfare of

A.L.C., 8 Wn. App. 2d 864, 872, 439 P.3d 694 (2019). There is an antecedent factual 

question: What did the Department do to provide services and when did they do it? See id.

But, as is true here, those facts are rarely disputed. In such a case—where the parties 

disagree only about the legal component of the active efforts inquiry—it does not make 

sense to split hairs over which standard of proof applies to the factual component.
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21

The question of active efforts in this case is complex. Before the emergency 

removal of A.T. from his father’s home in September 2022, the Department likely 

satisfied its obligation. During the period of May through early September 2022, 

Ms. Zackuse was aware that the father was distrustful of the government due to apparent 

mental health struggles and that he refused treatment. Nevertheless, it appeared—based 

on his history with the Department—that the father would be able to safely parent A.T. 

if provided support such as help with appointments, transportation to services, and 

information about schooling options. Thus, Ms. Zackuse acted accordingly.

But early in September, things changed. At that point, the father’s seemingly

worsening mental state and distrust of government required an intervention by a mental 

health crisis team and an emergent removal of A.T. from the home. At that point, it was 

apparent the father’s untreated mental health problems had become a significant barrier 

to family unity. Thus, at that point, ICWA and WICWA obliged the Department to start 

engaging the father in an effort to overcome his resistance to mental health treatment.

The Department did a lot of work with the father after A.T. was removed from his 

care. Much of the work was aimed at facilitating visitation. Ms. Dokken worked tirelessly

and creatively to arrange for visits between A.T. and his father even after local visitation 

providers proved unwilling to facilitate visits on an ongoing basis. Ms. Dokken arranged 
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22

for emergent visits between father and son and offered to have visits take place under 

the Department’s direct supervision. Ms. Dokken also helped the father arrange for a 

parenting assessment and an intake with an evidence-based parenting program. And she

personally drove him to a facility for his UA test. Ms. Dokken frequently met with the 

father and listened to his concerns, despite the fact that he was often inappropriate and 

even made her feel unsafe.

But for everything Ms. Dokken and the Department did with the father, they did 

not actively engage him on the issue of mental health services. Ms. Dokken testified that 

when it came to mental health, she provided the father with service letters, discussed the 

list of providers and offered to make phone calls. This is similar to what Ms. Zackuse had 

done with respect to mental health prior to A.T.’s removal. Yet plainly, this type of effort 

was not sufficient to help the father overcome his resistance to services. Something new 

needed to be tried.

It is not uncommon for a parent to decline family preservation services. G.J.A., 

197 Wn.2d at 903, 905-06. The Department “should expect resistance from parents.” 

A.L.K., 196 Wn.2d at 707 (Montoya-Lewis, J., concurring). Nevertheless, the duty to 

provide active efforts persists. See G.J.A., 197 Wn.2d at 875 (holding the Department’s 

duty to provide active efforts to Indian families is not excused by apparent futility). 
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ICWA and WICWA demand case workers keep working with a parent despite the 

parent’s rejection of services or failure to engage satisfactorily. A.L.K., 196 Wn.2d 

at 699-700. 

Given that social workers are obliged to persistently engage the parents of Indian 

children, the active efforts requirement means the Department’s workers must engage 

in self-evaluation, reflection, and a willingness to change strategy. Active efforts must 

be meaningful. G.J.A., 197 Wn.2d at 895. This requirement is not met by repeating 

unsuccessful strategies with the hope of a different result. Rather than continuing with

efforts that have previously failed, the active efforts requirement demands case workers 

brainstorm new strategies, tailored to the specific needs of a particular case.

In this case, the strategy of recommending mental health services and offering to 

make appointments was tried and failed. Given this circumstance, the Department was 

obliged to actively reassess the situation and help the father “develop the skills required” 

to understand the importance of mental health treatment and thereby “keep custody” of 

A.T. D.J.S., 12 Wn. App. 2d at 31-32.

To be sure, prior to the dependency fact-finding hearing, the father could not be 

ordered into services without his agreement. See RCW 13.34.065(4)(j). But that does not 

mean the Department was relieved from trying to work with the father and encourage his 
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24

voluntary participation in services. The Department’s obligation to provide active efforts 

begins as soon as it has “reason to believe” an Indian child is at risk of harm in their 

parents’ care. J.M.W., 199 Wn.2d at 840, 848.

Our decision should not be interpreted to mean that the Department can prove

active efforts by only demonstrating successful engagement. ICWA and WICWA 

recognize that out-of-home placement will sometimes be required despite the 

Department’s best efforts at family preservation. See RCW 13.38.130(1) (contemplating 

that active efforts might “prove[] unsuccessful”); 25 U.S.C. § 1912(d) (same). 

Nevertheless, the possibility—and even the seeming probability—of failure “does not 

excuse” the Department from continuing to try. G.J.A., 197 Wn.2d at 906. 

Despite all the work that was done with A.T.’s father, the record fails to show the 

Department worked to actively engage the father in mental health services in a way that 

might have helped him overcome his resistance to treatment. We therefore reverse the 

juvenile court’s finding regarding active efforts. 

Remedy for failure to provide active efforts

In the context of a dependency disposition requiring out-of-home placement, the 

remedy for the Department’s failure to provide active efforts is to return the child home 

unless doing so “would subject the child to substantial and immediate danger or threat 
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25

of such danger.” RCW 13.38.160; 25 U.S.C. § 1920; see also A.L.K., 196 Wn.2d at 

703-04. When an appellate court reverses a juvenile court’s findings as to active efforts, 

the prescribed remedy is to remand for findings under the foregoing standard. A.L.K., 

196 Wn.2d at 703-04.

The Department argues remand for this purpose is unnecessary because the 

juvenile court made sufficient findings to satisfy the “substantial and immediate danger” 

standard. RCW 13.38.160; 25 U.S.C. § 1920. In its disposition decision, the juvenile 

court found “[A.T.] is at imminent risk of physical damage or harm and substantial and 

immediate danger or threat of such danger should he be returned to [the father’s] care.” 

CP at 360. We agree with the Department.

13

The evidence produced during the dependency fact-finding and disposition hearing

justified the juvenile court’s finding that returning A.T. to his father’s care would result 

in a substantial and immediate danger to the child. A.T. was in dire condition when he 

was removed from his father’s home. He was apparently malnourished, socially and 

academically delayed, and had not received adequate medical care in several years. 

 

13 For the same reasons that we agree with the juvenile court that A.T. would 

face a substantial and immediate threat of danger in his father’s care, we also agree 

the Department met its burden to show “continued custody” of A.T. by his father 

was “likely to result in serious emotional or physical damage.” RCW 13.38.130(3); 

25 U.S.C. § 1912(e).
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The lack of medical care was particularly troubling because, without regular treatment,

A.T.’s eye conditions brought a risk of permanent vision loss. Not only had A.T. already 

suffered in his father’s care, the father’s paranoia and untreated mental health issues 

placed A.T. at imminent risk of physical damage or harm. For instance, the father 

removed smoke detectors from the family residence based on his delusion that the 

detectors were actually government surveillance devices. This placed A.T. in immediate 

peril, especially in light of the father’s testimony that he uses the oven to heat his home. 

Based on the record produced at trial, it is apparent that unless the father addresses his 

mental health, he will not be able to provide a safe living environment for his son. The 

juvenile court’s order authorizing out-of-home placement was justified, the failure to 

provide active efforts notwithstanding.

CONCLUSION

We reverse the trial court’s findings as to active efforts but nevertheless affirm 

A.T.’s out-of-home placement pursuant to RCW 13.38.160 and 25 U.S.C. § 1920. Going 

forward, the Department must do more to engage A.T.’s father in necessary services, 

especially mental health services. At any future court hearings involving out-of-home 

placement, the Department must show that it has engaged in active efforts as set forth in 

this decision. If active efforts have not been met, then A.T. must be returned home unless 
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the Department remains able to prove that the father continues to pose a “substantial and 

immediate danger” to A.T. RCW 13.38.160; 25 U.S.C. § 1920.

_________________________________

Pennell, J.

WE CONCUR:

______________________________ _________________________________

Lawrence-Berrey, A.C.J. Staab, J.