IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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In the Matter of the Dependency of ) No. 75404-1-1 CJI

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B.M.A. DOB: 10/28/2008 ) DIVISION ONE

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) UNPUBLISHED OPINION

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) FILED: June 12, 2017

APPELWICK, J. — Following a 29 month dependency during which S.G. made little

progress with court ordered services, the superior court terminated his parental rights to

his daughter B.A. On appeal, he challenges the court's denial of the Yakama Nation

Tribe's motion to transfer jurisdiction to the tribal court under the federal and state

Indian Child Welfare Acts, ICWA1 and WICWA.2 He also challenges the court's

conclusion that the Department of Social and Health Services (Department) satisfied the

statutory prerequisites to termination. We affirm.

FACTS

Pretrial History

S.G. is an enrolled member of the Yakama Nation Tribe (Tribe) and the biological

father of a girl, B.A., born in October 2008.3 Because B.A. is an Indian child, the

proceedings below were governed in part by ICWA and WICWA.

1 Indian Child Welfare Act, 25 U.S.C. § 1901.

2 Washington Indian Child Welfare Act, chapter 13.38 RCW.

3 B.A.'s mother's parental rights were terminated in a separate proceeding.
No. 75404-1-1 /2

In early 2014, the superior court entered separate orders of dependency as to

B.A.'s parents. S.G.'s agreed order stated in part:

On 12/26/2013, the mother came into the Office of Indian Child Welfare

and stated that she could no longer take care of her children. She stated

that she was not ever meant to be a mother and is unable to protect her

daughter [B.A.] from her older child . . . . The mother stated that she

wanted to relinquish her rights as a parent. She stated that she was not

ever cut out to be a parent and they would be better off without her. . . .

. . . Law enforcement placed [the children] in protective custody. . . at the

Office of Indian Child Welfare.

The next day, the children were placed with their current foster care parents in a

residence located off the Yakama Nation reservation.

The dependency order detailed S.G.'s lengthy criminal history, including his

current incarceration for attempting to elude, possession of cocaine, and his third DUI

(driving while under the influence).4 The order stated that S.G. "has three other children

that he has not parented." The order directed S.G. to complete random urinalysis,

inpatient drug and alcohol treatment including any recommended treatment, a parenting

assessment and recommended treatment, and family preservation services.

In November 2014, the Tribe petitioned to intervene in the dependency. In

February 2016, it petitioned to transfer jurisdiction under 25 U.S.C. § 1911(b) of the

ICWA to the children's court of the Tribe. S.G. filed a brief supporting the Tribe's

4 Gladstone's crimes include DUls, assaults, delivery of cocaine, driving while

license suspended, burglary, possession of drug paraphernalia, vehicle prowling,

malicious mischief, taking a motor vehicle without permission, and trespass.

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No. 75404-1-1 /3

petition. B.A.'s mother objected to the transfer. In an order denying the Tribe's motion

to transfer, the court stated:

The current guidelines, provide, in part:

IV Guidelines for State Courts and Agencies in Indian Child

Custody Proceedings:

(a) Upon receipt of a petition to transfer by a parent, Indian

custodian or the Indian child's tribe, the State court must transfer

the case unless any of the following criteria are met:

(1) Either parent objects to such transfer;

(3) The court determines that good cause exists for denying the

transfer.

Thus it is clear from the language of the guidelines that either

parent . . . may bar the transfer, without consideration of whether good

cause exists to deny the transfer. This is consistent with the very few

cases that have discussed the issue, as discussed in the Department's

legal memorandum, and with at least one well-respected compendium of

Indian Law. National Indian Law Library, A Practical Guide to the Indian 

Child Welfare Act §7 (Transfers) (On-Line version) . . . . The motion for

transfer is therefore denied.

(Boldface omitted) (emphasis added).

In October 2015, the Department petitioned to terminate S.G.'s parental rights.

The petition alleged in part:

2.5e The father. . . has been in and out of jail throughout the dependency

action. When he is not incarcerated, he has not participated in any of his

court ordered services. [S.G.] has been released from his DOSA [(drug

offender sentencing alternative)] sentence since November 2014 and has

not been in contact with the Department since that time to begin engaging

in his services. [S.G.] has not visited with [B.A.] except for one phone

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No. 75404-1-1/4

conversation in November 2014, prior to his release. Since his release he

has made no attempts to visit with his daughter. Phone calls and service

letters in attempts to get [S.G.] engaged in services have gone

unanswered.

2.5f [S.G.] has a significant history of long-term drug abuse resulting in

legal issues and [an in]ability to maintain stable housing. [S.G.]'s drug use

impacts his ability to function in every aspect of his life and would

jeopardize the health, safety, and wellbeing of his daughter. S.G. has 2

adult children as well as a 9 year old that he has not parented.

2.5g Due to the parents' unwillingness to engage in their court ordered

services, their unresolved legal issues, as well as their pervasive and

unaddressed substance abuse issues, they are unable to provide a safe

and sober home environment.

Termination Trial 

Trial commenced in May 2016, but S.G. did not appear. MeLisa Carson, a

Department social worker, testified that she oversaw B.A.'s case from November 2014

until trial. She had "limited contact" and only "a couple of meetings in person" with S.G.

during the dependency.

Carson attempted to contact S.G. through service letters she sent to the address

S.G. gave her.5 Her February 2015 service letter stated that she had not heard from

S.G. since she took over the case in November 2014. The letter detailed S.G.'s court

ordered services, his service providers, and their phone numbers. It also said "contact

me as soon as possible so that I can make referrals for you, if you need." Carson

provided similar information in four additional letters in 2015 and three more in 2016.

S.G. never responded. Nor did he ask that correspondence be sent to a different

address.

Carson testified that Gladstone gave her his mother's address and said that

was where he would be receiving his mail.

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No. 75404-1-1/5

Carson also attempted to contact S.G. by phone but his voicemail was full, not

set up, or replaced with a message "that the phone's not in service." She actively

looked for S.G. by checking jail rosters every two to three months and asking his mother

if she had seen him. Carson did not recall any phone calls or information indicating that

he entered inpatient treatment in November 2015.

Carson testified that S.G. did not complete his court ordered urinalysis,

drug/alcohol treatment, and parenting assessment. He did complete paternity testing

and the inpatient treatment ordered in his criminal case, but he failed to complete followup outpatient treatment in the criminal case.

In Carson's view, S.G.'s primary parental deficiency was untreated substance

abuse. She testified that the impact of this deficiency was far reaching, undermining his

parenting, employment, housing, and his ability to safely parent B.A. His DUls

demonstrated a serious safety risk for B.A., and S.G. had no housing or employment at

the time of trial. His substance abuse also impacted his ability to handle B.A.'s special

needs, which include PTSD (posttraumatic stress disorder), anxiety, and tantrums that

can be harmful to herself or others. Carson testified that B.A. has

a lot of anxiety around transitions and especially . . . transitioning to an

environment that is chaotic. When you don't have housing or. . . a place

to stay, that could be very chaotic for a child. And given that [B.A.] has

PTSD and anxiety and a variety of behavioral issues, it would be really

important that wherever she is placed is secure and stable and a place

that she can ease into a transition.

B.A. also has an academic IEP, "which requires a lot of advocacy on the part of her

caregiver" and "a lot of meetings with the school." B.A. sees two therapists—one for

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No. 75404-1-1/6

attachment issues and one for trauma. Carson doubted S.G.'s "ability to get her to

those appointments" or to advocate for needs arising from those treatments.

Carson testified that S.G. had not taken "any active role in learning about [B.A.]'s

special needs" and does not have "any form of relationship with [B.A.]" His contact with

her during the dependency consisted of a phone visit in 2014 and an unauthorized

contact when B.A. was visiting her grandmother. S.G. never set up a visit through the

Department. At the time of trial, a court order prohibited him from visiting B.A. due to

her negative reaction to his prior contacts.

Carson concluded there was no likelihood that S.G. could remedy his parental

deficiencies in the near future. When asked if it would be reasonable for B.A. to wait

another six months, Carson said "No," explaining that "it's been two years and [B.A.]

has a lot of anxiety about her placement. 1 think she needs to know permanently . . .

what her future looks like." Carson also said that B.A. would be at "risk of serious

emotional harm if [she] were returned to her father." She added that B.A. had always

been placed with her brother J.A., that they were very close, and that separating them

would not be in B.A.'s best interest. Carson concluded termination was in B.A.'s best

interest because she wants to stay with her brother and be adopted by her foster

parents, and that can only happen if S.G.'s rights are terminated.

Carson discussed guardianship with B.A.'s foster parents, but they preferred

adoption. The Tribe preferred guardianship to termination but never proposed a specific

placement for B.A. In fact, at the time of trial, no one had offered to be a guardian for

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No. 75404-1-1 /7

B.A. S.G. suggested his mother as a potential placement, but the Department

concluded her age and health issues disqualified her given B.A.'s special needs.

On cross-examination, S.G.'s counsel asked if the Department had reached out

to S.G.'s other family members regarding placement. Carson replied that the

Department's placement unit always sends "letters out to all family members for both

sides of the family that they can find." Carson conceded she did not "refresh" those

searches when she joined the case. She testified, however, that she asked S.G. and

his mother for names of extended family members but none were provided.

Kathy Elias, B.A.'s court appointed special advocate (CASA), testified that at the

time of her appointment, S.G. "was not active, was not engaging, and had not sought or

participated in any of the services." B.A. "had a lot of mental health issues" but "had a

skilled foster family that was dealing with those issues." B.A. told Elias that "she would

like to stay in the home that she's in forever" and "wants to stay with her little brother."

Elias identified S.G.'s primary parental deficiencies as lack of employment and

housing, a long history of substance abuse, and periodic incarceration. Elias called this

"a very telling record that I've seen many times." She added that "where there are so

many deficiencies, it's very rare for a parent to suddenly be able to become . . . a

competent parent." She noted that during the first 18 months of the dependency,

[S.G.] was nowhere. He expressed no interest in his child. He never

asked about her. Other than the one phone call, he never asked for visits,

didn't engage in any of the services he was ordered to. And, now, another

year has passed. It's been two and a half years into . . . this process of

uncertainty for the child. And he doesn't appear to be showing any ability

to. . . become a parent.

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No. 75404-1-1/8

Elias testified it would take S.G. a minimum of six to twelve months to correct his

deficiencies. She concluded termination was in B.A.'s best interest because she had

been in foster care for two and a half years and "can't begin to address her insecurities,

her anxieties, . . . her mental health problems, her stability needs until this legal matter

is decided once and for all." She believed it was "vital for [B.A's] wellbeing" to know that

she will be adopted and that her situation is permanent."

Elias testified that she had not contacted the Tribe, nor had they contacted her.

She had no contact information for S.G. and had never received "any information like

that" from S.G. or his attorney. On cross-examination, she acknowledged that she did

not seek out S.G.'s contact information or attempt to facilitate his use of services.

Roberta Fletcher, a chemical dependency counselor with the Seattle Indian

Health Board, testified that she did two intake assessments of S.G. in the summer of

2015. The first resulted in outpatient treatment, but S.G. stopped attending. The

second resulted in a referral for inpatient treatment that S.G. eventually completed at

Thunderbird Treatment Center.

Susan Shannon, a counselor at the Thunderbird Treatment Center, testified that

she counseled S.G. during his inpatient treatment in November 2015. His issues

stemmed from alcohol, cocaine, and cannabis abuse. Shannon recalled S.G.

attempting to contact his social worker several times during treatment. When he

completed the program, Shannon recommended outpatient treatment.

Jeffrey Mitchell, a chemical dependency professional with the Seattle Indian

Health Board, provided outpatient services to S.G. for a short period in December 2015.

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No. 75404-1-1 /9

He diagnosed S.G. with cocaine, alcohol, and cannabis dependence. Although

outpatient treatment normally consists of 24 group meeting over 3 months, S.G. left the

program after only 6 meetings.

Support Enforcement Officer Christopher Glaser testified that S.G. owes back

child support for B.A. and several other children. As of February 2016, he owed over

$40,000 in back support to children other than B.A.

B.A.'s foster mother, F.P., testified that she has cared for B.A. for two and a half

years. She also cares for B.A.'s brother J.A. Although B.A.'s anxiety has improved, it

can escalate into "hitting, kicking, throwing things, screaming, yelling, . . . hitting herself,

violence towards other members of the home or the animals." B.A. also solicits

inappropriate contact from strangers—primarily males—by "giving them hugs, or asking

them if they thought she was pretty." B.A. is not allowed to have scissors because she

impulsively cuts things, including her clothes.

B.A.'s days "are very scheduled," but IT the schedule does not go as planned,"

she can become "very anxious" and escalate into the behaviors mentioned above. F.P.

testified that B.A. has not expressed an interest in having a relationship with S.G. F.P.

noted that after an initial phone contact with B.A., S.G. said he was going to

communicate with her through letters but never did.

B.A. is bonded with her brother J.A. and F.P. testified that separating the children

"would be devastating for [B.A.]. It would be another loss in a series of losses that she's

experienced during her early life." F.P. stated that B.A. wants her foster parents to

adopt her and that they are eager to do so.

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No. 75404-1-1/10

F.P. testified that they have fostered B.A.'s Indian heritage by engaging her in

drum-making, jingle dance lessons, a Native American storytelling summer camp, and

attending local powwows. She testified they have not attended activities at the Yakama

Nation Reservation in part because "traveling with [B.A.] can be stressful." But, it is

their "hope that we can get [B.A.] to the point where we could make that trip along with

other trips to . . . areas that are important to her culture." When asked on crossexamination why they preferred adoption over a guardianship, F.P. said a guardianship

would not provide the services B.A. requires because of her special needs. She

conceded she had not discussed the possibility of Social Security Disability Insurance

with the Department.6

Family therapist Theresa Strutynski testified that she has treated B.A. for anxiety

and PTSD for two and half years. B.A. also shows some symptoms of reactive

attachment disorder. B.A. has never discussed S.G. in therapy. When Strutynski

brings him up, B.A. "deflects" and "doesn't go there." B.A. continues to need therapy.

Department of Corrections employee Michelle Kaiser supervises community

corrections officers in Seattle. She testified S.G. received a DOSA for eluding police in

a car while under the influence of alcohol. The sentence required S.G. to complete drug

treatment during community supervision. S.G. completed inpatient treatment in October

2014, but did not complete outpatient treatment and had not reported to the Department

since that time. An outstanding arrest warrant still existed at the time of trial.

6 F.P.'s mother, K.P., echoed her daughter's testimony.

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No. 75404-1-1/11

Cynthia Blair, a supervisor for the Office of Indian Child Welfare, testified as a

qualified expert witness under ICWA. 25 U.S.C. § 1912(f); see In re Welfare of L.N.B.-

L., 157 Wn. App. 215, 245-46, 237 P.3d 944 (2010) (describing "qualified expert

witness" under ICWA). She addressed whether the Department made active efforts to

work with the Tribe for purposes of termination. Blair testified that she reviewed B.A.'s

case file and concluded the Department made active efforts to coordinate its actions

with the Yakama Nation Tribe but the Tribe was "not responsive." In Blair's opinion, the

Department made "active efforts" to reunify B.A. with her parents and to engage the

Tribe in finding a placement consistent with ICWA's placement preferences. She

believed B.A. would be at risk if she were reunified with S.G.:

[B.A.] has no relationship with [S.G.] He's not stable; we don't know

where he's living. It's unknown what kind of environment she would . . .

go into with him. . . . She needs . . . consistency, she needs support, and

she's getting that in the home that she's in.

Blair concluded that termination would be in B.A.'s best interest.

Blair also testified the placements frequently are made in "non-Native home[s]"

because there are "very few Native American homes, foster homes." When asked if

B.A. was "in an appropriate placement [given] the ICWA order of [placement]

preferences," Blair said: "It's my understanding in review of the file . . . that there had

been no identified relatives that could take the children. She is with her younger

brother. It's a . . . stable placement. So, I . . . believe it's the best placement she can

be in at this time."

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No. 75404-1-1 /12

Blair corroborated Carson's testimony regarding the Department's standard

approach to placement, stating:

A . . . And again, we have a relative search unit that provides us—they go

in—they have additional access to certain websites and things that help

in relative searches, and then they send letters out to relatives, and

then those letters are given to us and we're notified if a relative comes

forward and says they're interested. . . .

Q So, does the Department seek out possible placements [with relatives]?

A Absolutely. And we also go to the tribes, and it's customary for us to

ask the tribes if they have foster homes or relatives or tribal—other

tribal members that could take the children.

Q And—and per your review of this file, did the Department do that?

A They attempted to. They regularly attempted to bring the tribes on

board.

The court ruled orally that the Department had not only met its burden, but that

"every element has been one that would meet the standard of beyond a reasonable

doubt."

Findings and Conclusions 

On June 3, 2016, the court entered findings, conclusions and an order

terminating S.G.'s parental rights. The court found in pertinent part:

2.14 All necessary services, reasonably available, capable of correcting

the parental deficiencies within the foreseeable future have been

expressly and understandably offered or provided to the father.m

7 Findings addressing the statutory criteria for termination are emphasized for

easy identification.

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No. 75404-1-1/13

The father did not respond to most services. Without attending or

fully complying with the identified services [(]i.e[,] parenting

assessment, and drug/alcohol treatment, other services[)] cannot

be determined. The father established paternity; he attempted

drug/alcohol treatment on multiple occasions; he failed to contact

the social worker to allow her to set up the parenting assessment;

and he failed to attend referred urinalysis.

2.16 Ms. Carson sent the father numerous service letters after verifying

that he receives his mail at his mother's residence. Ms. Carson

attempted to call the father on multiple occasions, and his phone

would either not be functioning or the voicemail would be full. Ms.

Carson met with [S.G.] in person to discuss services, and

attempted to set up further in-person meetings but he would fail to

attend the meeting.

2.19 [S.C.] attended inpatient treatment through American Behavioral

Health Systems [(ABHS)] as part of his DOSA sentence following

his felony conviction for attempting to elude a police vehicle and

misdemeanor conviction for Driving Under the Influence in January

2014. [S.G.] completed treatment on May 6, 2014.

2.20 On May 22, 2014, a probation violation was filed for multiple

violations including consuming both cocaine and marijuana on May

13, 2014, just seven days after completing treatment. On August 1,

2014, the father admitted the probation violations and was ordered

to complete inpatient treatment and provide weekly UA's. On

August 14, 2014, a second probation violation was filed again for

multiple violations including consuming cocaine and marijuana on

August 11, 2014, and failing to enter treatment. A supplemental

probation violation as filed for consuming alcohol on August 20,

2014. [S.G.] again admitted violations and eventually reentered

treatment, which he completed on October 29, 2014.

2.21 Just seven days after completing treatment through ABHS for the

second time, [S.G.] again violated the terms of his probation. A

violation was filed and [S.G.] failed to appear in court. On

November 7, 2014, a warrant was issued for his arrest.

2.22 The November 7, 2014, felony arrest warrant is still active. CCO

Michelle Kaiser said that if [S.G.] is located he will be arrested and

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No. 75404-1-1/14

the Department of Corrections intends to recommend that he be

sentenced to prison to serve his 17-22 month prison sentence.

2.23 [S.G.] has been diagnosed with Cocaine Dependence, Cannabis

Dependence, and Alcohol Dependence by Chemical Dependency

Professionals with Seattle Indian Health Board. [S.G.] began using

Cocaine and Alcohol around the age of 12, and Cannabis at the

age of 18.

2.24 Seattle Indian Health Board recommended in November 2015 that

the father complete Intensive Inpatient Treatment. The father

attended Inpatient Treatment at Thunderbird Treatment Center.

Upon discharge it was recommended that he complete Outpatient

Treatment. Other than the intake, the father never attended

outpatient treatment and as of the conclusion of the trial there

exists no evidence that he has completed outpatient treatment.

2.25 Chemical dependence on cocaine, cannabis and alcohol impairs

[S.G.]'s judgment skills, attention skills, and his focus. It causes a

lack of stability in housing, employment, and meeting day to day

needs. The substances would prevent [S.G.] from planning for and

meeting the daily needs of [B.A.].

2.26 [S.G.] has not financially provided for his other children aside from

[B.A.] and according to the testimony of Christopher Glaser he

currently owes approximately $44,000 in back child support.

2.27 There is little likelihood that conditions will be remedied so that

JB.A.1 can be returned to [S.C.] in the near future. 

2.28 [B.A.] is currently seven and half years old. The father's criminal

issues are uncontested, and when he gets apprehended on his

warrant it is more likely than not that he will serve prison time for at

least a year and a half if not longer. The likelihood is that [S.G.] will

not be able to be a full time parent to [B.A.] for at least three years.

That is a very long time and is not a reasonable amount of time for

a child of [B.A.]'s age to have to wait.

2.29 [B.A.] has a lot of special needs, mental health diagnoses of anxiety

and posttraumatic stress disorder with a rule out for Reactive

Attachment disorder, and takes medications including Melatonin

and Guanfacine.

2.30 [B.A.] can have severe tantrums that include screaming, hitting,

kicking, and biting. She also has a history of self-harm, physically

harming her younger brother, and hurting household pets. If her

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No. 75404-1-1 /15

schedule becomes unpredictable she can put herself into situations

that can harm her. She cannot be given access to scissors at

home or at school because she will cut toys, clothes, or other

students. This is connected to her impulsivity.

2.31 [B.A.] can be very impulsive, which can put her into dangerous

situations. She solicits contact from strangers primarily older males

and sometimes in inappropriate ways.

2.32 [B.A.] meets weekly with her therapist and every other week with an

attachment therapist. She also has IEP meetings at her school.

2.33 [B.A.] has been ready for at least a year and a half for this case to

end. She reminds the caregivers that everyone needs to do a

better job to end this case, and wants the judge to know that she

wants the case to end.

2.34 [B.A.]'s anxiety will continue to be aggravated by [S.G.]'s unstable

life, and his inability to be able to provide permanence. At this time

there is no way to anticipate that the father is going to take any

different actions in his life that would be beneficial for [B.A.].

2.35 [S.G.] has had very limited contact with [B.A.] throughout her life.

There is no evidence that [S.G.] had any contact with [B.A.] before

the dependency started. During the dependency he has had one

impromptu visit with her, and one telephone conversation with her.

2.36 [S.G.] promised [B.A.] that he would send her cards and letters;

however, he has never sent any. [B.A.] has asked her caregivers

why she does not receive any letters from her father.

2.37 On October 16, 2015, the father filed a report to court where he

stated that he has not sought visits with Brenda due to his relapse.

He said he would start visits and the parenting assessment as soon

as he was clean.

2.38 In person visits between [S.G.] and [B.A.] were suspended by the

Dependency court on January 12, 2016, as not being in [B.A.]'s

best interests and they would be detrimental to her emotional

welfare.

2.39 The current foster mother has promoted Native American culture to

[B.A.] in several ways. She has obtained a Jingle dress and signed

[B.A.] up for Native American dance classes, has participated in

drum making, taken [B.A.] to several pow-wow's, purchased and

provided books on Native American culture, kept [B.A.] in contact

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No. 75404-1-1 /16

with family friend and tribal member Nellie who has been able to

share Native American culture and customs with [B.A.]

2.40 The father does not have suitable housing for [B.A.] to reside in at

this time. Additionally, there is no evidence that the father is

employed or has the financial resources to provide for [B.A.]

2.41 [S.G.] has failed to substantially improve his parental deficiencies in

the twenty four months following the entry of the disposition order.

2.42 Continuation of the parent-child relationship clearly diminishes the

child's prospects for early integration into a stable and permanent

home. [S.G.] has never been able to provide [B.A.] with a stable

home in the past. He has not demonstrated the ability to provide

his child with a stable home currently, and will not be able to do so

in the near future. [B.A.] is adoptable and has prospects for

adoption. [B.A.] cannot be adopted unless parental rights are

terminated.

2.43 The Department has given consideration to alternative permanent

plans. There was no evidence before the court that identified a

viable alternative permanent plan other than adoption.

2.44 S.G. is currently unfit to parent [B.A.]. 

2.45 [B.A.] would be at serious risk both physically and emotionally if

placed with [S.G.] Indian expert Cynthia Blair opines that this risk is

created by [S.G.]'s untreated alcohol and substance abuse which

leads to instability for [B.A.] because of a lack of awareness and

judgment while impaired; his unstable living environment; his lack

of relationship with [B.A.] and no understanding of her emotional

needs.

2.47 Ms. Elias has regularly sent her CASA reports to the Yakama

Nation, but has never received any contact back from the tribe. Ms.

Elias also has never been contacted by [S.G.]

2.48 Ms. Elias finds it very important that the foster family has

maintained [B.A.]'s Native American background. She has

observed that [B.A.] enjoys learning about her culture.

2.49 Ms. Elias believes that it would be devastating for [B.A.] to wait

another six months for permanence. She believes that the near

future for [B.A.] is now.

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No. 75404-1-1 /17

2.50 Ms. Elias believes that termination of [S.G.]'s parental rights is in

[B.A.]'s best interest.

2.51 The court finds by a preponderance of the evidence that

termination of parental rights is in the best interests of [B.A.'. The

father will not be able to remedy his parental deficiencies within the

near future. [B.A.] has a right to a safe, stable, and permanent

home and to a speedy resolution of this termination proceeding. 

2.52 Pursuant to 25 U.S.C. § 1912(f), the court finds beyond a

reasonable doubt from the evidence presented, including the

testimony of a qualified Indian expert witness, that continued 

custody of the child by the parent or Indian custodian is likely to

result in serious emotional or physical damage to the child. 

III. Conclusions of Law

3.2 Termination of the parent-child relationship between the abovenamed minor child and the father is in the child's best interest. •

3.3 The foregoing findings of fact and the allegations of RCW 13.34.180

and .190 have been proven by clear, cogent[,] and convincing

evidence unless otherwise noted.

3.4 The Court concludes that the legal standard of proof for proving the

elements in RCW 13.34.180(1)(a-f) is clear, cogent, and convincing

evidence, however, the elements in this case have been proven by

even the higher standard of proof of beyond a reasonable doubt.

3.5 Pursuant to 25 U.S.C. § 1912(d), active efforts have been made to

provide remedial services and rehabilitative programs designed to

prevent the breakup of the Indian family, and these efforts have

been unsuccessful.

3.6 Pursuant to 25 U.S.C. § 1912(f), the court finds beyond a

reasonable doubt from the evidence presented, including the

testimony of a qualified expert witness, that continued custody of the

child by the parent or Indian custodian is likely to result in serious

emotional or physical damage to the child.[81

8(Emphasis added.) Gladstone assigns error to finding of fact 2.15, 2.27, 2.28,

2.42, 2.44, 2.45, 2.51, 2.52 and conclusion of law 3.2-3.6.

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No. 75404-1-1 /18

S.G. appeals.

Standard of Review

Parental rights are a fundamental liberty interest protected by the United States

Constitution. Santosky v. Kramer,455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599

(1982). To terminate parental rights, the State must satisfy a two-step test. First, it

must prove the following statutory elements by clear, cogent, and convincing evidence9:

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant to

RCW 13.34.130;

(c) That the child has been removed or will, at the time of the

hearing, have been removed from the custody of the parent for a period of

at least six months pursuant to a finding of dependency;

(d) That the services ordered under RCW 13.34.136 have been

expressly and understandably offered or provided and all necessary

services, reasonably available, capable of correcting the parental

deficiencies within the foreseeable future have been expressly and

understandably offered or provided;

(e) That there is little likelihood that conditions will be remedied so

that the child can be returned to the parent in the near future. . . . ; and

(f) That the continuation of the parent and child relationship clearly

diminishes the child's prospects for early integration into a stable and

permanent home.

RCW 13.34.180(1), .190(1)(a)(i). If the trial court finds that the State has met its burden

under RCW 13.34.180, it must then find by a preponderance of the evidence that

termination is in the "best interests" of the child. RCW 13.34.190(1)(b).

9"Clear, cogent and convincing" means highly probable. In re Welfare of M.R.H.,

145 Wn. App. 10, 24, 188 P.3d 510 (2008).

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No. 75404-1-1 /19

When termination proceedings involve an Indian child, ICWA and WICWA

require the court to make two additional determinations. First, the court must find by

clear, cogent, and convincing evidence that the Department made "active efforts" to

help the parent remedy his or her parental deficiencies. 25 U.S.C. § 1912(d); RCW

13.38.130(1); see, e.g., In re Dependency of A.M., 106 Wn. App. 123, 130-31, 135, 22

P.3d 828 (2001) (clear, cogent, and convincing standard applies to 25 U.S.C. §

1912(d)). Second, the court must find that the Department proved, beyond a

reasonable doubt, that the parent's continued custody of the child is likely to result in

"serious emotional or physical damage to the child." 25 U.S.C. § 1912(1); RCW

13.38.130(2).

On review, unchallenged findings of fact are considered verities. In re Interest of

J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001). Challenged findings are reviewed

for substantial evidence. Id. at 728. Because the trial court hears the testimony and

observes the witnesses, its decision is entitled to deference. In re Dependency of

A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277 (1991). We defer to the trier of fact on

issues of conflicting testimony, credibility of the witnesses, and the weight or

persuasiveness of the evidence. Id.; In re Welfare of S.J., 162 Wn. App. 873, 881, 256

P.3d 470 (2011); State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

DISCUSSION 

I. Motion to Transfer Jurisdiction 

S.G. first contends the superior court abused its discretion in denying his motion

to transfer jurisdiction to the tribal court under ICWA, 25 U.S.C. § 1911(b) and WICWA,

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No. 75404-1-1 /20

RCW 13.38.080(2).10 He concedes those Acts grant any parent the power to veto a

transfer to tribal court and that "[a] trial court therefore errs when it transfers jurisdiction

over a parental veto." Nevertheless, he contends the mother's veto in this case was

ineffective because she had already consented to tribal jurisdiction. Citing In re the 

Welfare of R.I., 402 N.W.2d 173 (Minn. App. 1987), he claims she impliedly consented

to tribal jurisdiction when she left B.A. and her siblings at the Indian Child Welfare office

and said she intended to relinquish her parental rights. The Department contends R.I.

is distinguishable. We agree with the Department.

The children in R.I. became wards of an Oregon tribal court when their mother

left without them to live in Minnesota. Id. at *174. The mother subsequently returned to

the reservation and took the children to Minnesota. Id. at *175. Later that year, a

Minnesota court declared the children dependent and placed them in temporary foster

10 Without citing relevant authority, the Department contends Gladstone's failure

to immediately appeal the order denying the motion to transfer precludes review of that

order in this appeal from the later order terminating parental rights. Because

Gladstone's challenge to the order denying transfer lacks merit in any event, we need

not reach the Department's argument. We note, however, that there is authority holding

that failure to seek interlocutory review of similar orders waives review absent a

showing of prejudice. See Lincoln v. Transamerica Inv. Corp., 89 Wn.2d 571, 578, 573

P.2d 1316 (1978) (where party fails to seek immediate review of decision denying

change of venue, review of that decision is waived absent a showing of prejudice);

Saleemi v. Doctor's Assocs., Inc., 176 Wn.2d 368, 387, 292 P.3d 108 (2013) (party who

fails to seek review of an order compelling arbitration on venue grounds until after the

arbitrators award is known must show prejudice before an appellate court will reach the

merits); but see In re Interest of E.D., 886 N.W.2d 107 (Iowa Ct. App. 2016) (because

order denying transfer did not dispose of all issues in the case, it was not final

appealable order and mother was entitled to raise the issue on appeal from the final

termination ruling). In addition, given the strong interests in finality and expediency in

matters involving children, there may be policy reasons to encourage immediate

appeals of transfer decisions.

20
No. 75404-1-1 /21

care. Id. The tribal and state court agreed that the state court "would continue to

exercise 'courtesy supervision' of the case." Id. The mother then took the children back

to the reservation without the permission of the state court or the children's legal

custodians. Id. Once there, she was arrested for possession of narcotics and pleaded

guilty. Id. The tribal court gave her funds to return with the children to Minnesota and

warned that custody proceedings would commence if she and the children remained on

the reservation. Id. The mother took the money and moved off the reservation, but left

the children behind. Id.

The Tribal Court then issued an emergency custody order, found the children

were abandoned, and placed them in the custody of their aunts. Id. The tribe filed a

motion to transfer the state court proceedings to the tribal court, but the mother

objected. Id. at *175-76. In granting the motion, the state court ruled that the mother

consented to transfer by leaving her children on the reservation and that her consent

negated her objection to the transfer. Id. at *176. The appellate court affirmed, stating

in part,

The Tribal Court and the State argue and the trial court found that

although appellant verbally objected to the transfer of the proceedings,

she impliedly consented to the transfer by voluntarily bringing the children

to the Warm Springs Reservation. Appellant argues that the Tribal Court

had no right to issue an emergency custody order, claiming that she

placed the children with her extended family in accordance with accepted

Indian custom. The Tribal Court, however, found that she had abandoned 

the children. We will not disturb that finding. We hold that the trial court

properly concluded that appellant consented to the transfer of jurisdiction

by leaving her children on the reservation.

Id. at 177 (emphasis added). This case differs from R.I. in several significant respects.

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No. 75404-1-1 /22

First, neither the tribal court nor the state court made a finding in this case that

B.A.'s mother legally abandoned her children on the reservation. Second, prior to the

abandonment of the children in R.I., the tribal court had already issued custody orders

making the children wards of the Tribal Court. As the Department points out, those

custody orders gave the Tribal Court exclusive jurisdiction of the children under 25

U.S.C. sec. 1911(a) ("Where and Indian child is a ward of a tribal court, the Indian tribe

shall retain exclusive jurisdiction."). There were no prior tribal court proceedings in this

case and B.A. was never a ward of that court. Third, the mother in R.I. abandoned her

children on the reservation with full knowledge that her action would result in custody

proceedings in the Tribal Court. B.A.'s mother did not act with such knowledge. R.I. is

thus inapposite.

S.G. fails to demonstrate that the court abused its discretion in denying the

motion to transfer.

II. Statutory Prerequisites to Termination.

S.G. contends several findings supporting the statutory prerequisites for

termination are not supported by the record. For the reasons set forth below, we

conclude the findings are supported by sufficient evidence.

A. Likelihood of Reunification.

Before parental rights can be terminated, RCW 13.34.180(e) and RCW

13.34.190(1)(a)(i) require the Department to prove by clear, cogent, and convincing

evidence "[t]hat there is little likelihood that conditions will be remedied so that the child

can be returned to the parent in the near future." The focus of RCW 13.34.180(1)(e) is

22
No. 75404-1-1/23

on whether a parent's identified deficiencies have been corrected. In re Welfare of

M.R.H., 145 Wn. App. 10, 27, 188 P.3d 510 (2008). In this case, the trial court found

the Department satisfied RCW 13.34.180(e).11 S.G. argues, however, that "[n]either

current deficiencies nor the low probability of conditions being remedied was proven by

clear, cogent, and convincing evidence in this case." We disagree.

The Department had the burden of demonstrating it was highly probable that

there was little likelihood S.G. could remedy his parental deficiencies in the near future.

In re Welfare of C.B., 134 Wn. App. 942, 952, 143 P.3d 846 (2006). Ample evidence

demonstrated that S.G. made little progress over the 29 month dependency.

Unchallenged findings establish that he failed to complete drug/alcohol treatment,

contact social workers to set up a parenting assessment, perform urinalysis, or even

attend trial. He repeatedly violated conditions of his DOSA sentence, had an

outstanding arrest warrant at the time of trial, and, according to his CCO, will be

arrested when located. The CCO testified, and the court found, that the Department of

Corrections will likely recommend a sentence of 17-22 months in prison.

S.G. contends "it is not a foregone conclusion that [he] will be sent to prison to

serve the remainder of his sentence." S.G. is correct. But, the court nevertheless

properly considered the CCO's testimony since it bore on the likelihood that B.A. will be

returned to S.G. in the near future.

11 Finding of fact 2.27 states, "There is little likelihood that conditions will be

remedied so that [B.A.] can be returned to [S.G.] in the near future."

23
No. 75404-1-1 /24

S.G. also points to evidence that he "was at least partially capable of succeeding

in drug treatment." But, unchallenged findings establish that whatever success S.G.

had in treatment has been exceedingly short-lived. It is, in fact, highly probable that

S.G. would relapse from any future treatment in a very short period of time.

Furthermore, S.G. would almost certainly need to demonstrate a substantial period of

sobriety before a court would consider him fit to parent B.A. There is no likelihood he

could remedy his drug/alcohol deficiency in the near future. Finding of fact 2.27 is

supported by substantial evidence.

B. Early Integration into a Stable and Permanent Home.

S.G. next contends the Department failed to satisfy RCW 13.34.180(1)(f) and

RCW 190(1)(a)(i), that require clear and convincing evidence "[t]hat the continuation of

the parent and child relationship clearly diminishes the child's prospects for early

integration into a stable and permanent home." The trial court found:

. . . Continuation of the parent-child relationship clearly diminishes the

child's prospects for early integration into a stable and permanent home.

[S.G.] has never been able to provide [B.A.] with a stable home in the

past. He has not demonstrated the ability to provide his child with a stable

home currently, and will not be able to do so in the near future. [B.A.] is

adoptable and has prospects for adoption. [B.A.] cannot be adopted

unless parental rights are terminated.

S.G. claims "[t]he record does not show that [B.A.] experiences a lack of stability

in placement with her foster family, nor does the record show that continuing her

relationship with her father would jeopardize the placement." He also claims "there is

no showing that [B.A.'s] bond to her foster family would be undermined by a continued

relationship with her father." S.G. ignores substantial evidence that B.A. needs

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No. 75404-1-1 /25

permanency, especially given her anxiety issues, that she is adoptable and wants to

remain with her brother and foster parents, that visits with S.G. were suspended by the

court because they were detrimental to B.A.'s emotional welfare, and that B.A.'s early

integration into a stable and permanent home cannot be achieved until S.G.'s parental

rights are terminated. Where "prospects for a permanent home exist but the parentchild relationship prevents the child from obtaining that placement," RCW

13.34.180(1)(f) is satisfied. In re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d 620

(2013).

S.G. also points out that "[o]ther options, short of termination, can provide

stability and permanence without entirely cutting off all connection to the natural parent."

He argues that "[w]hen the options short of termination . . . remain unexplored, the

[D]epartment has not proven that a continued relationship with the parent diminishes the

child's prospects for integration into a stable and permanent home." S.G. cites no

authority for this proposition. Nor does he assign error to the court's finding that "[t]he

Department has given consideration to alternative permanent plans. There was no

evidence before the court that identified a viable alternative permanent plan other than

adoption."

The court's finding that the Department satisfied RCW 13.34.180(1)(f) is

supported by substantial evidence.

C. Current Parental Unfitness.

In addition to the statutory prerequisites to termination, the State must prove the

parent is "currently unfit to parent." In re Parental Rights to B.P., 186 Wn.2d 292, 312-

25
No. 75404-1-1 /26

13, 376 P.3d 350 (2016). To prove unfitness, the State must show that the parent's

deficiencies make him or her incapable of providing "basic nurture, health, or safety.' "

Id. at 313 (quoting In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062 (2004)).

The trial court found that "S.G. is currently unfit to parent" B.A. S.G. claims the court's

finding is not supported by clear, cogent, and convincing evidence because there was

"no impediment to at least establishing visitation such that he could serve as a

[nonresidential] parent until his warrant status, substance abuse issue, and housing

situation was resolved."

S.G. cites no authority, nor have we found any, supporting the proposition that a

finding of current parental unfitness is precluded if a parent can serve as a

nonresidential parent. The proposition runs counter to the above-mentioned rule that

parental fitness rests on the parent's ability to provide basic nurture, health, or safety.

Clear, cogent, and convincing evidence established that S.G. was incapable at the time

of trial of providing nurture, health, or safety for B.A. His ongoing substance abuse and

repeated DUls demonstrated that he could not provide safety for B.A. He had no

housing, no employment, no bond with B.A., and no interest in, or understanding of, her

special needs. In re Parental Rights to K.M.M., 186 Wn.2d 466, 490, 379 P.3d 75

(2016) (in determining parental fitness, it is necessary to consider whether a parent is

capable of parenting the particular child given the child's specific, individual needs).

In addition, a parent is deemed unfit if the Department satisfies the criteria for

termination in RCW 13.34.180(1) and proves that termination is in the best interest of

the child. In re Parental Rights to K.J.B., 187 Wn.2d 592, 598, 387 P.3d 1072 (2017).

26
No. 75404-1-1 /27

As discussed above, the Department met those burdens in this case. The court's

finding of parental unfitness is supported by substantial evidence.

D. Active Efforts under ICWA.

S.G. maintains the Department failed to make the "active efforts" required by

ICWA and WICWA.12 He contends "[t]he Department's failure to immediately place

[B.A.] with S.G.'s extended family under 25 U.S.C. 1915 violated the 'active efforts'

requirement of 25 U.S.C. 1912(d)."13 Noting that 25 U.S.C. § 1915(b) gives priority to

an Indian child's extended family in placement decisions, S.G. alleges the Department

"summarily rejected" B.A.'s paternal grandmother as a placement option and

"apparently took no further action to find other paternal relatives capable of caring for

her." This claim fails for several reasons.

First, S.G. agreed to continue B.A.'s nontribal foster care placement in the

agreed order of dependency. Second, S.G. fails to demonstrate how the Department's

efforts in exploring possible placements at the time of the initial placement decision are

12 25 U.S.C. § 1912(d); RCW 13.38.130(1). The former states:

Any party seeking to effect a foster care placement of, or termination of

parental rights to, an Indian child under State law shall satisfy the court

that active efforts have been made to provide remedial services and

rehabilitative programs designed to prevent the breakup of the Indian

family and that these efforts have proved unsuccessful.

25 U.S.C. § 1912(d).

13 "Active efforts" are defined as "a showing to the court that the department or

supervising agency social workers actively worked with the parent, parents, or Indian

custodian to engage them in remedial services and rehabilitation programs ordered by

the court or identified in the department or supervising agency's individual service and

safety plan beyond simply providing referrals to such services." RCW

13.38.040(1)(a)(iii).

27
No. 75404-1-1/28

material to the criteria for termination of his parental rights.14 Third, the Department did

not summarily reject B.A.'s paternal grandmother as a placement option and used

"active efforts" in its placement decision. At the time of B.A.'s initial removal and

placement, the Department considered placement with "the paternal grandmother, 2

maternal great aunts, 2 maternal aunts, and [the] girlfriend of Father S.G." Caseworker

Carson also testified that the Department vetted S.G.'s mother as a potential placement,

but her age and health issues disqualified her given B.A.'s special needs.

E. Likely Serious Physical or Emotional Damage under ICWA.

Under 25 U.S.C. § 1912(f), the Department has the burden of proving beyond a

reasonable doubt that "custody of the child by the parent. . . is likely to result in serious

emotional or physical damage to the child." The trial court found the Department carried

its burden, stating:

Pursuant to 25 U.S.C. § 1912(f), the court finds beyond a reasonable doubt

from the evidence presented, including the testimony of a qualified Indian

14 As counsel for the Department noted during argument on his successful

motion to strike testimony concerning placement:

There is nothing within the termination statutes or termination case

law that says that failure to follow the placement preferences . . . is an[]

element that must be proven or rebutted within termination. This child was

emergency placed one day after the mother dropped the child off. . . with

the Department. . . . [A]t that time, the Department would not have even

known that the father had Native American background. . . . [T]he

Department did have discussions with the grandmother about her ability to

parent and be a placement, and due to her medical needs it was

determined by the Department she would not be a suitable placement to

handle the behavioral issues that [B.A.] presents. So, it's not that the

Department completely ignored this relative, or other potential placements,

but placement issues are not relevant to termination and do not need to be

proven or rebutted in termination. Those are issues for the underlying

Dependency Court.

28
No. 75404-1-1/29

expert witness, that continued custody of the child by the parent. . . is likely

to result in serious emotional or physical damage to the child.

S.G. contends this finding is not supported by substantial evidence. Again, we

disagree.

The Department's qualified Indian expert, Blair, testified that B.A. would be at

serious risk of physical or emotional harm if she were reunited with S.G.. Reunification

would be particularly risky given "the fact that [S.G.] motioned for . . . visits, and they

were denied for therapeutic reasons." Blair believed B.A. would suffer serious

emotional harm because she has anxiety, PTSD, and attachment issues and "has no

relationship with S.G.. He's not stable; we don't know where he's living. It's unknown

what kind of environment she would . . . go into with him." Caseworker Carson

concurred, stating: "[B.A.] already struggles with attachment issues, and she's been

working through some of that. And her trauma, I think not having an established

relationship with [S.G.] is going to cause more trauma and more anxiety."

In addition to Blair and Carson's testimony, S.G.'s ongoing substance abuse,

DUls, lack of housing, lack of employment, and likely incarceration supported the court's

finding, beyond a reasonable doubt, that placing B.A. in S.G.'s custody would likely

result in serious emotional or physical harm.

Affirmed.