In re Adoption of T.A.W. ( 2016 )

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/ F'I_I:".E This opinion was filed for record
IN CL&RKI OFFICE
11JPM1oE COURT,IITATI! OF WAllHINGlOII at ~: (X){lfVl on od-n 2J)l (,
) 't'
DATE OC l l } 2016
..J1t£L.d:i4~=rc[!__,·rz_
..,..,.,. Jusr:c¥·- SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) No. 92127-0
In the Matter of the Adoption of )
T.A.W., )
) ENBANC
R.B. and C.B., )
)
Petitioners, )
) Filed OCT 2 7 20!6
v. )
)
C.W., )
)
Respondent. )
)
FAIRHURST, J.-T.A.W. is an "Indian child" under the federal Indian Child
Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, as well as the Washington
State Indian Child Welfare Act (WICWA), chapter 13.38 RCW. T.A.W.'s biological
father, C.W. is non-Indian, 1 and T.A.W.'s mother, C.B., is Indian and an enrolled
1
With the understanding that "Indian" may not be preferred when referencing Native
Americans, American Indians, indigenous peoples, or First Nations, we use the term throughout
this opinion only because it is the expression adopted by both ICWA and WICWA. We intend no
disrespect.
             
In reAdoption ofT.A. W, No. 92127-0
member of the Shoalwater Bay Tribe. 2 C.B. and T.A.W.'s stepfather, R.B}
successfully petitioned the trial court to terminate C.W.'s parental rights and to allow
R.B. to adopt T.A.W. In reaching its decision, the trial court found that ICWA
applied to the termination proceedings and that ICWA's requirements were met
beyond a reasonable doubt. The trial court did not require C.B. and R.B. to prove
that active efforts were undertaken to remedy C.W.'s parental deficiencies prior to
terminating his parental rights and made no finding to that effect. The Court of
Appeals reversed, holding (1) ICWA and WICWA protect non-Indian and Indian
parents alike, (2) the trial court erred by not making an active efforts finding, (3) the
United States Supreme Court's decision in Adoptive Couple v. Baby Girl, _
U.S._, 133 S. Ct. 2552, 2557, 186 L. Ed. 2d 729 (2013), was factually
distinguishable, and (4) WICWA has no abandonment exception. In reAdoption of
T.A. W, 188 Wn. App. 799, 354 P.3d 46, review granted, 184 Wn.2d 1040 (2015).
C.B. and R.B. appealed. We now affirm the Court of Appeals and remand this case
to the trial court so that it may reconsider the termination petition in light of these
holdings.
2
T.A.W. is also an enrolled member of the Shoalwater Bay Tribe.
3
R.B. is Native American, but the record indicates that he has no formal tribal membership.
2
             
In reAdoption ofT.A. W., No. 92127-0
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual background
In December 2007, when T.A.W. was born, C.B. and C.W. were married and
living together. C.W. was present at T.A.W.'s birth and signed the paternity affidavit
confirming that he is T.A.W. 's father. Though the parties dispute the exact duration,
C.W., C.B., and T.A.W. resided together between four months to one year following
T.A.W. 's birth. At some point during this period, the parties shared a home on the
Shoalwater Bay Tribe reservation. C.W. and C.B. dispute how much of the parenting
responsibilities C.W. contributed, but C.W. testified that he cared for T.A.W. while
C.B. worked. C.B. eventually asked C.W. to leave the family home because of
C.W. 's addiction to methamphetamine.
After C.W. left, he continued to abuse methamphetamine. C.W. voluntarily
enrolled in inpatient drug treatment in 2009 but was unable to maintain his sobriety.
C.B. filed for dissolution of marriage in April 2009 following an incident
where C.W. attempted to take T.A.W. from C.B.'s home. When C.B. refused
permission, C.W. punched a wall in C.B. 's home while T.A.W. was present. As part
of the dissolution proceedings, the court granted C.B. a temporary restraining order
(TRO) that prevented C.W. from contacting her. The TRO permitted only supervised
visits between C.W. and T.A.W. until C.W. completed drug treatment. However,
C.W. did not attempt to visit T.A.W. during the dissolution proceedings.
3
             
In reAdoption ofTA. W, No. 92127-0
Following the dissolution, C.B.'s mother drove C.B. and T.A.W. to C.W.'s
mother's house for visitations on at least two occasions. Aside from those two
occurrences, C.B. 's mother claimed she was unable to facilitate any additional
visitations because C.W. no longer resided in the area. C.W. testified that his drug
addiction prevented him from maintaining his visitations with T.A.W.
In July 2009, law enforcement arrested C.W. for violating the TRO after C.W.
went to C.B.'s house to reconcile and attempted to enter the premises without
permission. Following that incident, the court granted C.B. 's petition to cease all of
C.W.'s visitations with T.A.W. pending C.W.'s completion of drug treatment.
In September 2009, the court entered a final parenting plan that permitted
supervised visitation between C.W. and T.A.W. Nevertheless, with the exception of
two short releases in 2010 and 2012, C.W. has spent the majority of the past seven
years in prison. C.W. last saw T.A.W. before he went to prison near the end of2009.
After C.W.'s release in 2012, C.B. obtained a domestic violence protection
order from the Shoalwater Bay Tribal Court. In October of that year, the Shoalwater
Bay Tribal Court modified the protection order to permit C.W. to petition for
rehearing if he completed at least six months of domestic violence perpetrator
classes. During the same period, C.B. petitioned the superior court for modification
of the parenting plan based on C.W.'s recent release from prison, allegations of
C.W. 's suspected involvement in an unsolved murder, and the fact that the protection
4
             
In reAdoption ofTA. W., No. 92127-0
order was still in place preventing C.W. from contacting C.B. Based on these
assertions, the court modified the parenting plan. As modified, the parenting plan
prohibited all visitations between C.W. and T.A.W.
In April 2013, C.W. was sentenced to another 43 months in prison with an
expected release date in September 2015. C.W. remained incarcerated during the
termination trial.
B. Procedural history
In June 2013, C.B. married R.B. C.B. and R.B. filed a petition for termination
of parental rights and adoption later that month, which C.W. answered pro se. R.B.
and C.B. obtained a court ordered home study pursuant to RCW 26.33.200. 4 The
placement evaluator visited R.B. and C.B. 's home, viewed their interactions with
T.A.W., performed a criminal background check on R.B., and spoke to R.B.'s
references. The placement report recommended that the court terminate C.W.'s
parental rights and permit R.B. to adopt T.A.W.
The termination trial was held in March 2014 in Pacific County Superior
Court. The trial court found that T.A.W. was an Indian child and that ICWA applied
to the proceedings. The trial court also found beyond a reasonable doubt that the
elements of ICWA were met. The trial court then found by clear, cogent, and
4
RCW 26.33.200(1) requires a postplacement report "to determine the nature and adequacy
of the placement and to determine if the placement is in the best interest of the child."
5
             
In reAdoption ofTA. W, No. 92127-0
convincing evidence that C.W. abandoned T.A.W. and granted R.B. and C.B.'s
termination and adoption petition. C.W. appealed the trial court's orders.
The Court of Appeals granted accelerated review under RAP 18.13A. 5 Id. at
799. On appeal, C.W. invoked for the first time 6 the protections of ICWA and
WICWA and argued that R.B. and C.B. failed to provide him with active efforts to
remedy his parental deficiencies before the trial court terminated his parental rights.
R.B. and C.B. asserted that in light of Adoptive Couple, 133 S. Ct. at 2557, ICWA
and WICWA did not apply to parents who abandoned their children. R.B. and C.B.
alternatively argued that ICWA and WICWA do not operate to protect the rights of
non-Indian parents like C.W.
Division Two of the Court of Appeals unanimously held that both 25 U.S.C.
§ 1912(d) ofiCWA and RCW 13.38.130(1) ofWICWA should have applied to the
termination trial. TA. W, 188 Wn. App. at 810. The Court of Appeals considered the
plain language of the active efforts provisions of ICWA and WICWA and the
underlying policy of each statutory scheme. Jd. at 808-12. The court reasoned that
those provisions require the petitioning party to prove, prior to the termination of
parental rights, that active efforts have been made to remedy the parental
5
RAP 18.13A grants accelerated review for orders terminating parental rights.
6
The Court of Appeals held C.W. could properly raise the active efforts argument on
appeal, despite his failure to do so at trial, pursuant to RAP 2.5(a)(2), because it applied when
"proof of particular facts at trial is required to sustain a claim." T.A. W., 188 Wn. App. at 807-08.
R.B. and C.B. do not challenge that holding.
6
             
In reAdoption ofTA. W, No. 92127-0
deficiencies justifying the termination and that the efforts have proved to be
unsuccessful. Id. at 806-07. The Court of Appeals reversed the ruling of the trial
court, holding instead that ICWA and WICWA apply in all cases where (1) an Indian
child is (2) involved in a child custody proceeding, without regard for the Indian
status of the parents. Id. at 810. This conclusion was based partially on language
found in other dependency and adoption statutes indicating that if an Indian child is
involved, ICWA shall apply. I d. Finally, the Court of Appeals held it was not bound
by the ruling in Adoptive Couple because that case was factually dissimilar and
because WICWA does not contain the abandonment exception that the Supreme
Court recognized as existing in ICWA. Id. at 815-16.
R.B. and C.B. appealed the Court of Appeals' ruling. Our Supreme Court
commissioner granted discretionary review.
II. ISSUES
A. Does ICWA or WICWA apply to the termination of parental rights of
a non-Indian biological parent?
B. Does ICWA or WICWA apply to stepparent adoptions?
C. Do ICWA's or WICWA's active efforts provisions apply to privately
initiated terminations when the child will remain with the Indian parent?
7
             
In reAdoption ofTA. W, No. 92127-0
III. ANALYSIS
A. ICWA and WICWA apply to the termination of parental rights of a non-Indian
biological father
As a threshold issue, we must determine whether the protections of ICWA or
WICWA apply to C.W., T.A.W.'s non-Indian biological father. The Court of
Appeals held that neither act conditioned applicability on a parent's Indian status.
Id. at 810. R.B. and C.B. advance that because C.W. is non-Indian and because, in
their view, the divorce between C.B. and C.W. broke up the Indian family, ICWA
and WICWA do not apply to the termination proceedings. Specifically, R.B. and
C.B. argue that the Court of Appeals erroneously interpreted the acts and, as a result,
mistakenly placed a burden on them to prove they had provided active efforts to
C.W. before his rights were terminated. R.B. and C.B. 's position ignores the express
dictates of ICWA and WICWA. We hold that the plain language of ICWA and
WICWA apply to and protect the parental rights of a non-Indian parent of an Indian
child.
1. Standard of review
The active efforts provisions and the abandonment exception to ICWA need
be considered only if either ICWA or WICWA applies to the present case.
Accordingly, the primary question we must answer is whether ICWA or WICWA
applies to the termination of a non-Indian's parental rights.
8
             
In reAdoption ofTA. W., No. 92127-0
Statutory interpretation is a question of law that we review de novo. State v.
Sanchez, 177 Wn.2d 835, 842, 306 P.3d 935 (2013) (citing Dep't of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)). The purpose of our
inquiry is to determine legislative intent and interpret the statutory provisions to
carry out its intent. Id.Within our statutory interpretation process, we first consider the statute's plain
language. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007) (citing
State v. JP., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). "If the plain language is
subject to only one interpretation, our inquiry ends because plain language does not
require construction." HomeStreet, Inc. v. Dep 't of Revenue, 166 Wn.2d 444, 451,
210 P.3d 297 (2009) (citing Armendariz, 160 Wn.2d at 110; State v. Thornton, 119
Wn.2d 578, 580, 835 P.2d 216 (1992)). If the statutory language is both plain and
unambiguous, the meaning we give the statute must be derived from the statutory
language itself. I d. (citing Wash. State Human Rights Comm 'n v. Cheney Sch. Dist.
No. 30, 97 Wn.2d 118, 121, 641 P.2d 163 (1982)). To ascertain the statute's plain
meaning, we may examine (1) the entirety of the statute in which the disputed
provision is found, (2) related statutes, or (3) other provisions within the same act.
Campbell & Gwinn, 146 Wn.2d at 10. If the statute at issue, or a related statute,
incorporates a relevant statement of purpose, our reading of the statute should be
9
             
In reAdoption ofT.A. W., No. 92127-0
consistent with that purpose. See Nationscapital Mortg. Corp. v. Dep 't ofFin. Insts.,
133 Wn. App. 723, 736, 137 P.3d 78 (2006).
Like statutory interpretation, whether ICWA and WICWA apply is a question
of law that we also review de novo. In re Custody ofC.C.M, 149 Wn. App. 184,
194, 202 P.3d 971 (2009) (citing In re Dependency of A.L.W., 108 Wn. App. 664,
669, 32 P.3d 297 (2001)).
As we have in the past, we recogmze that '"courts undertake a grave
responsibility when they deprive parents of the care, custody and control of their
natural children."' In re Pawling, 101 Wn.2d 392, 399, 679 P.2d 916 (1984)(quoting
In re Welfare ofSego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973)). A parent's right to
the care, custody, and control of his child "is perhaps the oldest of the fundamental
liberty interests recognized." Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054,
147 L. Ed. 2d 49 (2000) (plurality opinion); see also In re Welfare of Sumey, 94
Wn.2d 757, 762,621 P.2d 108 (1980). When an Indian child is at issue, ICWA and
WICWA impose more exacting requirements than a typical termination proceeding.
Because understanding the context in which the contested provisions are found is
necessary to our plain language analysis and because the purposes on which each act
is predicated must guide our interpretation, we begin by consulting the background
and overview of each act.
10
             
In reAdoption ofT.A. W, No. 92127-0
2. Purposes ofiCWA and WICWA and concurrent interpretation
Congress enacted ICWA in 1979 to address "'the consequences to Indian
children, Indian families, and Indian tribes of abusive child welfare practices that
resulted in the separation oflarge numbers oflndian children from their families and
tribes through adoption or foster care placement, usually in non-Indian homes."'
Adoptive Couple, 133 S. Ct. at 2557 (quoting Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989)). Congressional
action was prompted by the "'alarmingly high percentage of Indian families ...
broken up by the removal, often unwarranted, of their children from them by
nontribal public and private agencies,"' which Congress described as the
"'wholesale removal oflndian children from their homes."' Id. (quoting 25 U.S.C.
§ 1901(4)). ICWA provides heightened protections in order
to protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families by the establishment
of minimum Federal standards for the removal oflndian children from
their families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture, and by
providing for assistance to Indian tribes in the operation of child and
family service programs.
25 U.S.C. § 1902.
11
             
In reAdoption ofT.A. W., No. 92127-0
Among other requirements, ICWA demands a higher burden of proof before
the trial court may terminate the relationship between an Indian child and his parent.
See 25 U.S.C. § 1912(±).7
Importantly, after its protections are triggered, ICWA 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) (emphasis added). ICWA, however, does not define "active
efforts," nor does it indicate the requisite amount of services required before the
termination of parental rights may occur.
In 2011, Washington joined several other states8 by enacting its own version
of ICWA. Like ICWA, WICWA requires that parties seeking the involuntary
7
According to ICWA:
No tennination of parental rights may be ordered in such proceeding in the
absence of a detennination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.
25 u.s.c. § 1912(f).
8
See, e.g., IoWA CODE §§ 232B.l to 232B.l4 (Iowa Indian Child Welfare Act); MICH.
CoMP. LAWS§§ 712B.l to 712B.41 (Michigan Indian Family Preservation Act); MINN. STAT. §§
260.751 to 260.835 (Minnesota Indian Family Preservation Act); NEB. REV. STAT.§§ 43-1501 to
43-1517 (Nebraska Indian Child Welfare Act); OKLA. STAT. tit. 10, §§ 40.1 to 40.9 (Oklahoma
Indian Child Welfare Act); see also State Statutes Related to the Indian Child Welfare Act,
National Conference of State Legislatures (Aug. 25, 2016), http://www.ncsl.org/research/human-
services/state-statutes-related-to-indian-child-welfare.aspx [https://perma.cc/HHL8-3TVK]
(discussing individual states' adoption ofiCWA-related legislation and providing a list of those
provisions).
12
             
In reAdoption ofTA. W., No. 92127-0
termination of parental rights to an Indian child "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." RCW 13.38.130(1). Unlike ICWA, however, WICWA provides a
definition for "active efforts." RCW 13.38.040(1).
As part of its express intent, WICWA states that it "is a step in clarifying
existing laws and codifying existing policies and practices," but that it is "not [to]
be construed to reject or eliminate current policies and practices that are not included
in its provisions." RCW 13.38.030. In addition to the analogous, and in some
provisions identical, statutory language found in both acts, several of WICWA's
provisions explain that compliance with the requirements of WICWA equates to
compliance with ICWA. See, e.g., RCW 13 .38.040(2) (defining "best interests of the
Indian child"), .030 (legislative intent is that the same resources should serve as
persuasive authority for interpreting both ICWA and WICWA), .070 (adopting
federal standards for determination of Indian status), .140 (compliance with both
acts for emergency removal of children).
ICWA, by its express language, permits states to expand the protections that
it provides. See 25 U.S.C. § 1921 (declaring that when ICWA applies, it will yield
to state laws that provide "a higher standard of protection to the rights of the parent
or Indian custodian of an Indian child"). WICWA contains a similar provision
13
             
In reAdoption ofT.A. W., No. 92127-0
indicating that it seeks to provide minimum requirements to child custody
proceedings but that nothing in its provisions should be read as preventing higher
standards of protection. See RCW 13 .38.030. WICWA also clarifies that it is not
meant to "affect, impair, or limit rights or remedies" available under ICWA. RCW
13.38.190(2).
Considering these provisions, our legislature's desire to import much of the
language of ICWA into WICWA, and WICWA's aim of clarifying existing law, 9
our belief is that the acts should be read as coextensive barring specific differences
in their statutory language. See In re W.B., 55 Cal. 4th 30, 54, 281 P.3d 906, 144 Cal.
Rptr. 3d 843 (2012). In this way, and consistent with ICWA's unambiguous
directive, the acts will be interpreted as analogous and conterminous unless one
provides greater protection, in which case the more protective act will supplant the
less protective act. See 25 U.S.C. § 1921.
3. ICWA and WICWA application
As defined by ICWA, an "Indian child" is "any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian
tribe." 25 U.S.C. § 1903(4). ICWA defines "parent" as "any biological parent or
9
This is presumably in reference, at least partially, to ICWA, given ICWA's and WICWA's
governance of the same subject matter.
14
             
In reAdoption ofT.A. W., No. 92127-0
parents of an Indian child or any Indian person who has lawfully adopted an Indian
child, including adoptions under tribal law or custom." 25 U.S.C. § 1903(9). As
unambiguously set forth in its provisions, ICWA must be applied to all "child
custody proceeding[s]," which it defines to include '"foster care placement,"'
"'preadoptive placement,"' "'adoptive placement,'" or "'termination of parental
rights"' to an Indian child. 25 U.S.C. § 1903(1). ICWA expressly exempts two types
of proceedings~delinquency proceedings and custody determinations following
divorce when one parent retains custody of the Indian child. 25 U.S.C. at§ 1903.
Reading these provisions together, the heightened protections ofiCWA are triggered
if ( 1) the child at issue is an Indian child and (2) the proceedings are a child custody
proceeding that is not subject to either of the two express exemptions. See 25 U.S.C.
§ 1903(1), (4); see also William N. Smith and RichardT. Okrent, The Washington
State Indian Child Welfare Act: Putting the Policy Back Into the Law, 2 AM. INDIAN
L.J. 148 (Fall2013) (citing 25 U.S.C. §§ 1903(4), 1911(b)).
The requirements of ICWA and WICWA are analogous in many of these
respects. WICWA's definition of "Indian child" is nearly identical to ICWA's
definition. See RCW 13.38.040(7) ('"Indian child' means an umnarried and
unemancipated Indian person who is under eighteen years of age and is either: (a) A
member of an Indian tribe; or (b) eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe."). Under WICWA, "parent" is
15
             
In reAdoption ofT.A. W., No. 92127-0
defined as "a biological parent or parents of an Indian child or a person who has
lawfully adopted an Indian child, including adoptions made under tribal law or
custom." RCW 13.38.040(13). The express language ofWICWA states that it "shall
apply in all child custody proceedings." RCW 13.38.020 (emphasis added).
WICWA also defines "child custody proceeding" to include foster care placement,
termination of parental rights, 10 preadoptive placement, and adoptive placement.
RCW 13.38.040(3)(a)-(d). Like ICWA, WICWA exempts custody determinations
stemming from delinquency proceedings and custody determinations following
divorce where one parent retains custody. RCW 13.38.040(3).
The plain language of both acts emphasizes that application is predicated on
an Indian child's involvement in a child custody proceeding without reference to the
Indian status of the parents. A reasonable reading of the plain and unambiguous
language indicates that both ICWA and WICWA condition applicability not on the
Indian status of the parents, but rather on the Indian status of the child.
The conclusion that both acts apply regardless of the parents' status is further
supported by their definitional sections. Congress and our legislature took great care
to qualify several different parties as "Indian." See 25 U.S.C. § 1903(4) ("'Indian
child'"), (5) ("'Indian child's tribe"'), (6) ('"Indian custodian"'), (7) ("'Indian
10
"Termination of parental rights" is defined as "any action resulting in the termination of
the parent-child relationship." RCW 13.38.040(3)(b) (emphasis added).
16
             
In reAdoption ofTA. W., No. 92127-0
organization"'), (8) ("'Indian tribe"'); see also RCW 13.38.040(6)-(11 ). This
qualification, however, was not used to modify "parent" under ICWA, nor does the
definition of"parent" as "any biological parent or parents of an Indian child" permit
application of ICWA to differ based on the parents' Indian status. 25 U.S.C. §
1903(9) (emphasis added); see also RCW 13.38.040(13).
As part of our plain language analysis, we should also consider the stated
purposes of both ICWA and WICWA. The stated purposes confirm our
interpretation. Indeed, Congress' and our legislature's purposes evidence that the
provisions of their respective statutes depend not on the status of either parent but
instead on the status of the child. 25 U.S. C. § 1902 ("The Congress hereby declares
that it is the policy of this Nation to protect the best interests ofIndian children and
to promote the stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal oflndian children from
their families." (emphasis added)); RCW 13.38.030 (same); see also 25 U.S.C. §
1901(3) (Congressional findings indicate "that there is no resource that is more vital
to the continued existence and integrity of Indian tribes than their children and that
the United States has a direct interest, as trustee, in protecting Indian children who
are members of or are eligible for membership in an Indian tribe." (emphasis
added)). Both acts signal an intent to protect Indian children and tribal relationships,
but neither premises applicability on the Indian status ofthe parents.
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In reAdoption ofTA. W, No. 92127-0
Finally, we have the benefit of an additional source that confirms our current
interpretation-one that was not made available until after oral arguments in this
case-the federal Bureau oflndian Affairs (BIA) rule regarding ICWA proceedings
in state courts. See Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38778-01
(June 14, 2016) (to be codified at 25 C.F.R. pt. 23). The stated purpose ofthis rule
is to "addresses requirements for State courts in ensuring implementation ofiCWA
in Indian child-welfare proceedings." Id. at 38778. Though the rules do not come
into effect until December 12, 2016, they are nevertheless informative. Regarding
the definition of"Indian family" for the purposes of the active efforts provisions, the
BIA's commentary states, "The term 'Indian family' is also found in 25 U.S.C.
1912(d) ... , and it is clear from context that this means the Indian child's family."
Id. at 38798 (emphasis added). Again, this evidences that whether a family meets
the requirements of an Indian family-and is therefore subject to the active efforts
requirement at issue in this case-is premised not on the Indian status of the parents
but is instead based on whether the child is an Indian child.
For these reasons, we hold that whether the parent whose rights are being
terminated is non-Indian is immaterial to a finding that ICWA and WICWA apply.
If the child at issue is an Indian child and that child is involved in a child custody
proceeding, ICWA and WICWA shall apply.
18
             
In reAdoption ofT.A. W, No. 92127-0
4. ICWA and WICWA application to the present proceedings
R.B. and C.B. also argue that the present action is not a child custody
proceeding, which they contend should preclude application ofiCWA and WlCWA.
We disagree.
Both ICWA and WlCWA define "child custody proceeding" to include the
"'termination of parental rights,"' which includes "any action resulting in the
termination of the parent-child relationship." 25 U.S.C. § 1903(1)(ii) (emphasis
added); RCW 13.38.040(3)(b). There is no dispute that the proceeding at issue had
as its purpose the termination of C.W.'s parental rights to T.A.W. 11 This, in
conjunction with the undisputed fact that T.A.W. is an Indian child, is sufficient to
trigger both ICWA' s and WlCWA's heightened protections. Ifthis were not enough,
11
As a corollary argument, R.B. and C.B. assert that their initiation of termination and
adoption proceedings did not cause the "breakup of an Indian family," which would trigger the
heightened ICWA requirements. Pet. for Review at 11. Instead, they contend the divorce between
C.B. and C.W. caused the breakup, and because custody disputes stemming from divorce are not
covered by ICWA or WICWA, it follows that ICWA and WICWA do not apply. R.B. and C.B.
are correct that ICWA does not cover custody determinations springing from divorce proceedings
where one of the parents retains custody of the Indian child. See 25 U.S.C. § 1903(1); RCW
13.38.040(3). However, R.B. and C.B. mischaracterize the nature of the proceedings below.
Invohmtary adoptive proceedings, like the one at issue, do not spring forth from divorce, but are
instead independent statutory proceedings. In reAdoption of ]{L.A., 2006 OK CIV APP 138, ~ 6,
147 P.3d 306. In a divorce, the parties are the husband and wife attempting to dissolve their
marriage, not a spouse who later becomes a stepparent. Id. A reading of the definitional sections
of ICWA and WICWA confirms this view. Stepparents are not included in the definition of
"parent," but are instead found in the "extended family member" term. 25 U.S. C.§ 1903(2); RCW
13.38.040(8). The "divorce proceeding" exceptions of25 U.S.C. § 1903(1) and RCW 13.38.040(3)
pertain only to "parents" under the acts. By their plain language, the divorce exception cannot
apply to a proceeding in which a stepparent is a party. See 25 U.S.C. § 1903(1); RCW 13.38.040(3).
Because the proceedings at issue include R.B., T.A.W.'s stepparent, the divorce proceeding
exception is not applicable.
19
             
In reAdoption ofTA. W., No. 92127-0
the concurrent purpose of the trial proceeding was to enter an adoption decree that
would permit R.B. to adopt T.A.W. The acts define "child custody proceeding" to
include '"adoptive placement,"' which they deem "the permanent placement of an
Indian child for adoption, including any action resulting in a final decree of
adoption." 25 U.S.C. § 1903(1)(iv) (emphasis added); RCW 13.38.040(3)(d). This
too requires application ofiCWA and WICWA.
Although R.B. and C.B. argue that ICWA and WICWA protect only Indian
parents, the language of both acts plainly and unambiguously necessitates their
application in the present case. This is so because (1) T.A.W. is an Indian child and
(2) the termination proceedings clearly met the definition of "child custody
proceeding." The Court of Appeals did not err in making this determination. 12
12
In the ruling granting review, Commissioner Pierce recognized that the Court of Appeals
grounded its conclusion that ICWA applies in all termination cases involving an Indian child
largely on amendments made to the Juvenile Comt Act in Cases Relating to Dependency of a Child
and the Termination of a Parent and Child Relationship, chapter 13.34 RCW, in 2004. Specifically,
the Court of Appeals stated, "This statute unequivocally provides that under Washington law,
ICWA applies to all termination cases in which the child is an Indian. RCW 13.34.040(3) does not
condition the application ofiCWA on whether the parent also is an Indian." TA. W., 188 Wn. App.
at 810. The commissioner's ruling considered the argument that the legislature's purpose in
amending these provisions~to provide only adequate notice in ICWA eligible cases~may impact
our plain language statutory analysis. If this in fact is true, the commissioner reasoned, we would
be justified in revisiting the extent of the Court of Appeals' broad ruling. See Ruling Granting
Review, In reAdoption ofTA. W., No. 92127-0, at 6 (Wash. Jan. 14, 2016). Although R.B. and
C.B. now attempt to adopt that argument, neither party raised it prior to arriving at this cotut.
Further, even if the Court of Appeals' reading of the amendments may overstate the purpose of
those amendments as envisioned by the legislature, any doubt as to the broad reach of ICWA in
cases involving Indian children was resolved with the passage of WICWA, which clarifies its
provisions shall apply in all "child custody proceedings." RCW 13.38.020. Because of (l) the
nature of the proceedings (termination and adoption) and (2) T.A.W. 's status as an Indian child,
ICWA and WICWA apply in this case. See also Jean K v. Jeremy M, 2015 WL 4748010, at *1
20
             
In reAdoption ofT.A. W., No. 92127-0
B. ICWA and WICWA apply in stepparent adoption cases
R.B. and C.B. next suggest that ICWA and WICWA are inapplicable to
stepparent adoptions when the parental rights being terminated belong to a non-
Indian. As explained in the preceding section, neither ICWA nor WICWA condition
applicability on parents' Indian status. Still, whether the acts were meant to apply to
stepparent adoption is a question that this court has yet to address. We hold that
ICWA and WICWA apply in stepparent adoption cases.
The plain language ofiCWA and WICWA are telling of the applicability to
stepparent adoptions. As previously stated, ICWA and WICWA both apply to child
custody proceedings, which include all termination and adoption proceedings. See
25 U.S.C. § 1903(1)(ii), (iv); RCW 13.38.040(3)(b), (d). Neither scheme limits
application to state-initiated terminations or adoptions.
In the present case, R.B.'s adoption ofT.A.W. cannot proceed unless C.W.'s
parental rights are first terminated. As explained above, the current action is a child
custody proceeding within the meaning of both acts under the termination and
adoption provisions. Stepparent adoptions like the one at issue, however, do not fall
into either of the expressly stated exceptions to ICWA or WICWA-that is, it is not
a delinquency proceeding or custody determination made during a divorce in which
one parent retains custody. See 25 U.S.C. § 1903(1); RCW 13.38.040. Further,
(Ariz. Ct. App. Aug. 11, 2015) (unpublished) (holding that biological mother could assert ICWA
protections when the record contained no evidence that she was a member of an Indian tribe).
21
             
In reAdoption ofT.A. W., No. 92127-0
neither statutory scheme exempts custody disputes within an extended family, nor
do they condition coverage based on the identity of the postadoption parent. See 25
U.S.C. § 1903(1)(iv); RCW 13.38.040(d).
The plain language ofiCWA and WICWA provides no exception to coverage
if adoption is sought by a stepparent. Legislative history from both ICWA and
WICWA confirms our reading. The legislative histories of both acts lack any
discussion of stepparent adoptions. However, "[w]e presume that the legislature
enacts laws 'with full knowledge of existing laws."' Maziar v. Dep 't of Carr., 183
Wn.2d 84, 88, 349 P.3d 826 (2015) (quoting Thurston County v. Gorton, 85 Wn.2d
133, 138, 530 P.2d 309 (1975)); see also Mississippi ex ref. Hood v. AU Optronics
Corp.,_ U.S._, 134 S. Ct. 736, 742, 187 L. Ed. 2d 654 (2014) ("[W]e presume
that 'Congress is aware of existing law when it passes legislation."' (internal
quotation marks omitted) (quoting Hall v. United States, 566 U.S._, 132 S. Ct.
1882, 1889, 182 L. Ed. 2d 840 (2012))).
Washington has had a stepparent adoption statute since 1979, which long
predates the passage of WICWA. See former RCW 26.32.056 (1979). Many other
states also have stepparent adoption statutes predating Congress' passage ofiCWA.
See In re N.B., 199 P.3d 16, 19 (Colo. App. 2007) (collecting statutes and cases
addressing stepparent adoption).
22
             
In reAdoption ofT.A. W., No. 92127-0
Given Congress' and our legislature's presumed awareness of stepparent
adoptions when they enacted ICWA and WICWA, had they wished to except
stepparent adoption from coverage they would have explicitly done so. Congress
and our legislature made only two exceptions to when the protections ofiCWA and
WICWA would otherwise be invoked. Absent express legislative intent to the
contrary, we refuse to create any additional exceptions. See Anthis v. Copland, 173
Wn.2d 752, 765, 270 P.3d 574 (2012) (citing State v. Taylor, 97 Wn.2d 724, 728-
29, 649 P.2d 633 (1982)). We hold that ICWA and WICWA apply to stepparent
adoptions.U
C. The active efforts provision ofiCWA and WICWA apply to privately initiated
terminations when the child will remain with the Indian parent
Despite our holding that ICWA and WICWA apply to the present case, R.B.
and C.B. assert that the active efforts provisions ofiCWA and WICWA do not apply
for two reasons. First, they claim that the active efforts provisions were intended to
apply to only state-initiated terminations. Second, they argue that the active efforts
provisions should not apply when the child will not be removed from an Indian
parent. We reject both arguments.
13
Several other states considering the applicability of ICWA to stepparent adoptions have
come to the same conclusion. See, e.g., NB., 199 PJd at 19; In re Crystal K., 226 Cal. App. 3d
655,662-66,276 Cal. Rptr. 619 (1990); R.L.A., 147 P.3d at 308-09; State ex rel. D.A.C., 933 P.2d
993, 997-1001 (Utah Ct. App. 1997).
23
             
In reAdoption ofTA. W, No. 92127-0
1. The active efforts provisions apply to both state and privately initiated
terminations
Both ICWA and WICWA require that "active efforts" be undertaken to
remedy and rehabilitate the parents of Indian children before their parental rights
may be terminated. R.B. and C.B. believe that to require a private party to assume
active efforts would be "nonsensical" and "absurd." Pet. for Review at 7, 12. In R.B.
and C.B.'s view, the active efforts requirements are concerned with only state-
initiated proceedings.
As the first step in statutory interpretation, we turn initially to the plain
language ofthe statutes. 25 U.S.C. § 1912(d) 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.
Similarly, RCW 13.38.130(1) reads:
A party seeking to effect an involuntary foster care placement of or the
involuntary termination of parental rights to an Indian child 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.
The plain language ofiCWA requires any party seeking to terminate parental
rights to an Indian child to produce sufficient evidence to satisfY that active efforts
have been made. Congress used the word "any" to modifY "party," and "Washington
courts have consistently interpreted the word 'any' to mean 'every' and 'all."' Stahl
24
             
In reAdoption ofT.A. W., No. 92127-0
v. Delicor of Puget Sound, Inc., 148 Wn.2d 876, 884-85, 64 P.3d 10 (2003) (citing
State v. Tili, 139 Wn.2d 107, 115,985 P.2d 365 (1999)). Thus, under ICWA, we
hold that any party, including a parent seeking to involuntarily terminate the parental
rights of the other parent, must comply with the active efforts requirements
articulated in 25 U.S.C. § 1912(d). ICWA offers no exceptions for privately initiated
actions.
The language ofRCW 13.38.130(1) is less telling, but WICWA's definition
of"active efforts" 14 leads us to the same conclusion. Subsection (a) of the definition
14
WICWA, RCW 13.38.040(1), in relevant part defines "active efforts" as:
(a) In any foster care placement or termination of parental rights proceeding
of an Indian child under chapter 13 .34 RCW and this chapter where the department
or a supervising agency as defined in RCW 74.13.020 has a statutory or contractual
duty to provide services to, or procure services for, the parent or parents or Indian
custodian, or is providing services to a parent or parents or Indian custodian
pursuant to a disposition order entered pursuant to RCW 13.34.130, the department
or supervising agency shall mal(e timely and diligent efforts to provide or procure
such services, including engaging the parent or parents or Indian custodian in
reasonably available and culturally appropriate preventive, remedial, or
rehabilitative services. This shall include those services offered by tribes and Indian
organizations whenever possible. At a minimum "active efforts" shall include:
(iii) In any termination of parental rights proceeding regarding an Indian
child under chapter 13.34 RCW in which the department or supervising agency
provided services to the parent, parents, or Indian custodian, 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.
(b) In any foster care placement or termination of parental rights proceeding
in which the petitioner does not otherwise have a statutory or contractual duty to
directly provide services to, or procure services for, the parent or Indian custodian,
"active efforts" means a documented, concerted, and good faith effort to facilitate
the parent's or Indian custodian's receipt of and engagement in services capable of
meeting the criteria set out in (a) of this subsection.
25
             
In reAdoption ofT.A. W., No. 92127-0
clarifies that the active efforts provision applies to any foster care placement or
termination proceeding in which "the departmentl 15l or a supervising agency" is
statutorily or contractually obligated to provide or procure services. RCW
13.38.040(1)(a). Subsection (b) applies the same active efforts requirements to any
adoption or termination proceeding initiated by a party that is not contractually or
statutorily obligated to provide services to the parents. RCW 13.38.040(1)(b).
Since RCW 13.38.040(1) provides requirements for both state and nonstate
entities, the legislature clearly contemplated WICWA's active efforts provision
would apply to more than just state-initiated termination and adoption proceedings.
This directly refutes R.B. and C.B. 's argument that the legislature meant for the
active efforts provision to apply to only state-initiated terminations. We therefore
hold WICWA applies to privately initiated terminations.
Because this is a termination proceeding and R.B. and C.B. were not
contractually or statutorily required to directly provide or procure services to C.W.,
R.B. and C.B. fall within the RCW 13.38.040(1)(b) definition. This being so, under
the plain language of both ICWA and WICWA, R.B. and C.B. were not exempt and
15
Under WICWA,
"[d]epartment" means the department of social and health services and any of its
divisions. "Department" also includes supervising agencies as defined in RCW
74.13.020(12) with which the department entered into a contract to provide
services, care, placement, case management, contract monitoring, or supervision to
children subject to a petition filed under chapter 13.34 or 26.33 RCW.
RCW 13.38.040(5) (code reviser's note omitted).
26
             
In reAdoption ofTA. W, No. 92127-0
were required to show that C.W. received active efforts before his parental rights
were terminated. The trial court made no finding as to active efforts made by R.B.
and C.B.; 16 thus, R.B. and C.B. must prove on remand that active efforts have been
provided to C.W. prior to the termination of his parental rights.
2. The existing Indian family doctrine does not except this case from
ICWA or WICWA coverage
Although R.B. and C.B. maintain the active efforts provisions do not apply to
privately initiated terminations, in the alternative they claim that even if ICWA and
WICWA would normally apply to the present case, they are exempt because C.W.
is non-Indian. This, they claim, is determinative of the acts' application because the
termination of C.W. 's parental rights would not result in the "breakup of the Indian
family" as is required under the "active efforts" provisions found in 25 U.S.C. §
1912(d) and RCW 13.38.130(1). R.B. and C.B. assert that since they are both native,
they constitute the "Indian family" that would remain intact ifC.W. 's parental rights
were terminated.
16 Because the trial court made no findings as to the active efforts provided to C.W., the
adequacy of the efforts made is a question not before this court. The dissent criticizes us for not
giving deference to the discretion vested in the trial court, dissent at 1, but the trial court must
exercise its discretion before deference can be given. Also, it is incorrect for the dissent to imply
more is expected of the mother, dissent at 7; rather, more is expected of the trial judge so that on
review we can ensure that the requirements of ICWA and WICWA were met.
27
             
In reAdoption ofT.A. W, No. 92127-0
a) The plain language of ICWA and WICWA unambiguously
confirm that "breakup of the Indian family" refers to the
termination of a biological parent's parental rights to an "Indian
child" regardless of that parent's Indian status
Though both acts refer to the "breakup of the Indian family" in their active
efforts provisions, neither defines "Indian family" or contains the phrase "existing."
See In re Baby Boy C., 27 A.D.3d 34, 48, 805 N.Y.S.2d 313 (2005). However, "[t]o
determine the plain meaning of an undefined term, we may look to the dictionary."
HomeStreet, 166 Wn.2d at 451 (citing Garrison v. Wash. State Nursing Bd., 87
Wn.2d 195, 196, 550 P.2d 7 (1976)). "[T]he definition of 'family' necessarily
depends on the field of law in which the word is used, the purpose intended to be
accomplished by its use, and facts and circumstances in each case." Claymore v.
Serr, 405 N.W.2d 650, 654 (S.D. 1987) (citing BLACK'S LAW DICTIONARY (5th ed.
1983)). "Most commonly ['family'] refers to a group of persons consisting of parents
and children; immediate kindred, constituting the fundamental social unit in
civilized society." !d.
Both ICWA and WICWA provide definitions for "extended family
member" 17 that include "the Indian child's grandparent, aunt or uncle, brother or
17
Under 25 U.S.C. § 1903(2),
"extended family member" shall be as defined by the law or custom of the Indian
child's tribe or, in the absence of such law or custom, shall be a person who has
reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second
cousin, or stepparent.
Under RCW 13.38.040(8),
28
             
In reAdoption ofT.A. W, No. 92127-0
sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or
stepparent." 25 U.S.C. § 1903(2); RCW 13.38.040(8). Because the "extended family
member" definition encompasses many of those outside the immediate family, it is
likely that Congress and our legislature intended "Indian family" to include only the
nuclear family with the "Indian child" at the center. We therefore hold that "Indian
family," in the context of the active efforts provisions, refers to the relationship
between the Indian child and his parents.
This conclusion is supported by the BIA guidelines and confirmed by the
BIA' s recently issued commentary concerning ICWA proceedings in state courts.
The BIA guidelines state that '"breakup of the Indian family"' refers to a situation
where a parent is unable or unwilling to raise the Indian child in a healthy manner
emotionally or physically. 44 Fed. Reg. 67592, Guideline D.2 commentary. The
guidelines therefore affirm that "Indian family" refers to the relationship between
the Indian child and his parents. The BIA's recent commentary also w1ambiguously
confirms our view, stating:
Comment: A commenter suggested clarifying ... that the active-efforts
requirements apply to parents of an Indian child, not simply to Indian
parents.
"extended family member" means an individual, defined by the law or custom of
the child's tribe, as a relative of the child. Ifthe child's tribe does not identify such
individuals by law or custom, the term means an adult who is the Indian child's
grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece,
nephew, first or second cousin, or stepparent, even following termination of the
marriage.
29
             
In reAdoption ofT.A. W, No. 92127-0
Response: ICWA applies when an Indian child is the subject of a child-
custody proceeding, and the active-efforts requirement of 25 U.S.C.
1912( d) applies to the foster-care placement or termination of parental
rights to an Indian child. The child's family is an "Indian family" because
the child meets the definition of an "Indian child." As such, active efforts
are required to prevent the breakup of the Indian child's family,
regardless of whether individual members of the family are themselves
Indian.
81 Fed. Reg. at 38815. 18
Again, none of these sources premise application on the parent's Indian status.
We therefore hold that "breakup of the Indian family" refers to a situation, such as
the one at present, in which a party seeks to terminate a biological parent's rights to
an Indian child.
b) WICWA overruled the existing Indian family exception
In addition to the argument that "Indian family" does not refer to non-Indian
parents' relationship to their Indian children, R.B. and C.B. maintain that the existing
Indian family exception exempts the present case from ICWA and WICWA
coverage. We disagree and hold that the existing Indian family exception was
legislatively overruled by the enactment ofWICWA.
18
Courts considering this question have likewise interpreted "Indian family" to mean the
parents of an Indian child or the child's Indian guardian. Crystal K., 226 Cal. App. 3d at 667 ("[25
U.S.C.][S]ection 1912(d) is simply directed at 'attempt[s] to preserve the parent-child
relationship."' (third alteration in original) (quoting In reAppeal in Pima County Juvenile Action
No. S-903, 130 Ariz. 202, 208, 635 P.2d 187 (Ct. App. 1981))); State ex rei. C.D. v. State, 2008
UT App. 477, "If 30, 200 P.3d 194 ("[T]he State must demonstrate that active efforts have been
made with respect to the specific parent or Indian custodian from whom the Indian children are
being removed or provide evidence that such efforts would be fi.Jtile.").
30
             
In reAdoption ofT.A. W., No. 92127-0
'"The existing Indian family exception is' a court made doctrine that exempts
'application of the ICWA' in those cases where the Indian child's family has not
'maintained a significant social, cultural, or political relationship with [their] tribe."'
Shawn L. Murphy, The Supreme Court's Revitalization of the Dying "Existing
Indian Family" Exception, 46 McGEORGE L. REV. 629, 636 (2014) (alteration in
original) (quoting Barbara Atwood, Flashpoints Under the Indian Child Welfare
Act: Toward a New Understanding of State Court Resistance, 51 EMORY L.J. 587,
625 (2002)).
We initially embraced the existing Indian family exception in In reAdoption
of Crews, 118 Wn.2d 561, 825 P.2d 305 (1992). There, we explained,
[T]here is no allegation by [the biological mother] or the [the Indian
child's tribe] that, if custody were returned to [the biological mother],
[the child] would grow up in an Indian environment. To the contrary,
[the biological mother] has shown no substantive interest in her Indian
heritage in the past and has given no indication this will change in the
future.
While [the child] may be an "Indian child" based on the [tribal
constitution], we do not find an existing Indian family unit· or
environment from which [the child] was removed or to which he would
be returned. To apply ICWA in this specific situation would not further
the policies and purposes ofiCWA.
Id. at 569.
The legislature's recent enactment ofWICWA requires that we reconsider our
adoption of the existing Indian family exception.
31
             
In reAdoption ofT.A. W., No. 92127-0
Under our above interpretation ofiCWA and WICWA, if a case (1) meets the
definition of a "child custody proceeding" and (2) involves an Indian child, both acts
shall apply. ICWA and WICWA recognize only two exceptions to coverage-
delinquency proceedings and custody disputes following divorce where one parent
retains custody of the Indian child. Our interpretation therefore overrules Crews to
the extent that it embraced the existing Indian family exception because it recognizes
no additional exceptions to coverage outside of the two expressly stated in ICWA
and WICWA. 19
3. Adoptive Couple does not preclude application ofICWA or WICWA
Next, R.B. and C.B. claim that ifiCWA is applicable to the present case, then
this court is bound by the Adoptive Couple decision and must apply the abandonment
exception to ICWA. R.B. and C.B. argue that the facts of their case are analogous to
those considered by the Supreme Court in Adoptive Couple, meriting our application
of ICWA's abandonment exception to the present case. The Court of Appeals'
holding as it related to Adoptive Couple was twofold: first, the court found that the
two cases are factually dissimilar; second, the court reasoned that the Adoptive
Couple decision interpreted only the federal ICWA and was therefore not binding
on the Court of Appeals' interpretation ofWICWA. We agree.
19
The BIA's recent commentary confirms this is the correct view: "[T)here is not an
'existing Indian family' exception to ICWA." 81 Fed. Reg. at 38815.
32
             
In reAdoption ofT.A. W., No. 92127-0
In Adoptive Couple, the Court held that the state could involuntarily terminate
the parental rights of a biological Indian father who had abandoned his Indian child
without triggering ICWA's protections. 133 S. Ct. at 2552. In that case, the father, a
member of the Cherokee Nation, refused to support the child and voluntarily
relinquished his parental rights in lieu of paying child support. Id. at 2558. The
biological mother had no Indian ties, and after learning that the father would not
support the child, the mother placed the child up for adoption. I d. It was undisputed
that the biological father made no attempt to support the child or to assume any
parental duties during the first four months of the child's life. Id. The day after
receiving the adoption notice, the father contacted an attorney, who immediately
requested a stay of the adoption proceedings. Id. at 2558-59.
The South Carolina Family Court, invoking 25 U.S.C. § 1912(f), ruled that
the adoptive couple had not proved beyond a reasonable doubt that the child would
suffer serious emotional or physical damage if the biological father had custody. Id.
at 2559. The adoptive couple was forced to hand over the child to the biological
father, whom she had never met, when she was 27 months old. Jd. The South
Carolina Supreme Court upheld this determination. I d.
The Supreme Court reversed the South Carolina Supreme Court's decision.
In so doing, the Court reasoned that ICWA, by its text, was aimed at the unwarranted
removal of Indian children from Indian families. Jd. at 2561. Thus, the Court
33
             
In reAdoption ofT.A. W., No. 92127-0
concluded, when "the adoption of an Indian child is voluntarily and lawfully initiated
by a non-Indian parent with sole custodial rights, the ICWA's primary goal of
preventing the unwarranted removal oflndian children and the dissolution oflndian
families is not implicated." !d. Because the biological father never had legal or
physical custody of the child, he could not invoke the protections of 25 U.S.C. §
1912(f). !d. at 2562. The Court relied on the state parentage laws of Oklahoma
(where the biological parents were domiciled) and South Carolina (where the
adoption took place) to determine that the biological father never had legal custody
of the child prior to the family court's ruling. !d.
The Court also held that ICWA's active efforts provision did not apply under
the facts of the case because the father abandoned the child prior to her birth and
never had legal or physical custody of the child. For these reasons, there was no
relationship to "break up" because the "breakup" of the relationship had long since
occurred. !d.
The facts of Adoptive Couple are distinguishable from those in the current
case, and the distinctions necessitate a different outcome. Under Washington law,
because C.B. and C.W. were married at the time T.A.W. was born, C.W. was
presumed to be his father. RCW 26.26.116(l)(a). This has never been disputed.
Pursuant to the Court's analysis in Adoptive Couple, RCW 26.26.116(1)(a)
establishes that C.W. had legal custody ofT.A.W. because he was T.A.W.'s father
34
             
In reAdoption ofTA. W., No. 92127-0
from birth. Additionally, it remains undisputed that for at least four months
following T.A.W.'s birth, C.W. lived with C.B. and shared parental responsibility
for T.A.W. This establishes, consistent with Adoptive Couple, that C.W. had actual
physical custody of T.A.W. for a time. Even following C.B. and C.W.'s divorce,
C.W. retained visitation rights with T.A.W. Finally, C.W. has never voluntarily
relinquished his parental rights to T.A.W. and has never evidenced an intent to do
so. In fact, C.W. attempted to reestablish visitation following his second release from
prison. These facts are plainly distinct from those considered in Adoptive Couple.
Unlike Adoptive Couple, there is still an "Indian family" to be broken up should
C.W.'s rights be terminated.
Also, because of the abandonment exception, ICWA supports an independent
interpretation and application of WICWA in the present case. As previously
explained, once its protections are triggered, WICWA excepts only delinquency
proceedings and custody determinations following divorce where one parent retains
custody-there is no additional exception for abandonment under WICWA. Our
interpretation of WICWA therefore provides additional protection to the parents of
Indian children by preventing termination when tribal culture would otherwise
permit the long-term absence of parents. See Dustin C. Jones, Adoptive Couple v.
Baby Girl: The Creation ofSecond-Class Native American Parents Under the Indian
Child Welfare Act of I978, 32 LAW & INEQ. 421, 423 (2014) (explaining that the
35
             
In reAdoption ofT.A. W., No. 92127-0
Court's decision creates an additional exception that disregards Indian customs and
values). ICWA provides:
In any case where State or Federal law applicable to a child
custody proceeding under State or Federal law provides a higher
standard of protection to the rights of the parent or Indian custodian of
an Indian child than the rights provided under this subchapter, the State
or Federal court shall apply the State or Federal standard.
25 U.S.C. § 1921; see also D.J, 36 P.3d at 672. We hold that because WICWA
provides greater protection to C.W., a "parent" under both ICWA and WICWA, the
Court of Appeals did not err by applying only WICWA and rejecting R.B. and C.B. 's
claim that C.W. abandoned T.A.W. under ICWA. 20
IV. CONCLUSION
We hold that ( 1) ICWA and WICWA protect the rights of non-Indian parents
and Indian parents alike, (2) ICWA and WICWA apply to stepparent adoptions, (3)
ICWA and WICWA require private parties initiating terminations to prove that
active efforts have been provided to any parent of an Indian child, regardless of their
Indian status, before a termination may occur, and (4) WICWA does not contain an
20 R.B.and C.B. argue that if we deem that ICWA and WICWA apply to their case, then
such application would be unconstitutional on equal protection grounds. They raised this argument
for the first time in their petition for review; thus, we will not address it. See Crystal Ridge
Homeowners Ass'n v. City of Bothell, 182 Wn.2d 665, 678, 343 P.3d 746 (2015) ("This court
generally does not consider issues, even constitutional ones, raised first in a petition for review."
(citing State v. Benn, 161 Wn.2d 256, 262 n.l, 165 P.3d 1232 (2007))). Moreover, R.B. and C.B.
provide no support for this argument besides dictum from Adoptive Couple. See Pet. for Review
at 13. We note several courts have already rejected these arguments because the disparate treatment
afforded Indians under ICWA is not race based, but is instead based on their political status in a
sovereign government. See, e.g., N.B., 199 P.3d at 22-23.
36
             
In reAdoption ofTA. W., No. 92127-0
abandonment exception. Accordingly, we affirm the Court of Appeals and remand
this case to the trial court so that it may reconsider the termination petition in light
of these holdings.
37
             
In reAdoption ofTA. W., No. 92127-0
WE CONCUR:
38
             
In reAdoption ofTA. W.; R.B. & C. B. v. C. W.
No. 92127-0
MADSEN, C.J. (dissenting)-The majority holds that RCW 13.38.130(1) of the
Washington State Indian Child Welfare Act (WICWA) applies to privately initiated
proceedings to terminate parental rights, that the termination proceeding here falls within
RCW 13.38.040(1)(b)'s definition of"active efforts," and that therefore the termination
petitioners, who are the Indian child's (T.A.W.'s) biological mother (C.B.) and the
mother's husband (R.B.), were "required to show" that T.A.W.'s biological father (C.W.)
had "received active efforts" before his parental rights were terminated. Majority at 27.
While I agree that these statutes apply here, in my view, the majority's reading of these
provisions gives insufficient deference to the discretion vested in the trial court by the
WICWA to assess such efforts in the context of the facts of the case presented. In my
view, under the particular circumstances of this case, the trial court's findings are
adequate and its termination order should be affirmed. Accordingly, I dissent.
Analysis
When construing a statute, our goal is to carry out the intent of the legislature.
Seven Gables Corp. v. MGMIUA Entm 't Co., 106 Wn.2d 1, 6, 721 P.2d 1 (1986). We
             
No. 92127-0
(Madsen, C.J., dissenting)
recently explained the appropriate analysis in BAC Home Loans Servicing, LP v.
Fulbright, as follows:
"[W]e strive to ascertain the intention of the legislature by first examining a
statute's plain meaning." G--P Gypsum Corp. v. Dep 't ofRevenue, 169
Wn.2d 304, 309,237 P.3d 256 (2010) (citing Dep't ofEcology v. Campbell
& Gwinn, LLC, 146 Wn.2d I, 9-10,43 P.3d 4 (2002)). To glean the
meaning of words in a statute, we do not look at those words alone, but
'""all [of] the terms and provisions of the act in relation to the subject of
the legislation, the nature of the act, [and] the general object to be
accomplished and consequences that would resultfrom construing the
particular statute in one way or another.""' Burns v. City of Seattle, 161
Wn.2d 129, 146, 164 P.3d 475 (2007) (quoting State v. Krall, 125 Wn.2d
146, 148, 881 P.2d 1040 (1994) (quoting State v. Huntzinger, 92 Wn.2d
128, 133, 594 P.2d 917 (1979))).
180 Wn.2d 754,766, 328 P.3d 895 (2014) (emphasis added).
RCW 13.3 8.130(1) provides, "A party seeking ... the involuntary termination of
parental rights to an Indian child shall satisfy the court tl1at 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." 1 (Emphasis
added.) The WICWA defines "active efforts" in RCW 13.38.040(1) and states in
relevant part:
In any ... termination of parental rights proceeding in which the petitioner
does not otherwise have a statutory or contractual duty to directly provide
services to, or procure services for, the parent ... , "active efforts" means a
documented, concerted, and good faith effort to facilitate the parent's ...
1
Similarly, the federal Indian Child Welfare Act provides, "Any party seeking ... 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) (emphasis added).
2
             
No. 92127-0
(Madsen, C.J., dissenting)
receipt of and engagement in services capable of meeting the criteria set out
in (a) of this subsection.
RCW 13.38.040(1)(b)_l
In my view, the trial court's findings adequately encompass these inquiries.
Relevant here, the trial court found that within less than six months after T.A.W.'s
December 23, 2007 birth, C.W. was addicted to methamphetamine. In the spring of
2009, C. W. engaged in domestic violence against C.B., and C.B. obtained a temporary
protection order and filed for dissolution. During the year preceding these events,
"[C.W.] had extremely limited contact with [T.A.W.]. Any contact between the father
and the child was initiated by [C.B.] or [C.W.'s] mother, not by any effort of [C.W.]."
Clerk's Papers at 91. The trial court found that "[t]he father has not had face-to-face
contact with the child since August 2009, and this failure is the sole responsibility of the
father." !d. The trial court found that "[C.B.] made a good faith effort to establish and
maintain a relationship between [C.W.] and the child, and this effort was rejected by
[C.W.]." !d. Noting that C.W. has been in and out of prison since 2010, the court found
that during that time period, C.W. made little or no effort to contact T.A.W. while he was
incarcerated and when he was not incarcerated. The court found that from the summer of
2010, C.W. did not communicate with T.A.W. in any way that demonstrated love or
affection for the child, that C.W. was "currently unfit to parent [T.A.W.]," that C.W. was
2
Subsection (l)(a) of the noted statute addresses DSHS's provision, pursuant to statute or
contract, of "reasonably available and culturally appropriate preventive, remedial, or
rehabilitative services" to the parent of an Indian child in a proceeding concerning placement,
dependency, or termination of parental rights. RCW 13.38.040(1)(a).
3
             
No. 92127-0
(Madsen, C.J., dissenting)
"currently incapable of providing a safe environment for [T.A.W.]," that it is in T.A.W.'s
best interest that C.W.'s parental rights be terminated, and that T.A.W. is presently in a
"stable home" with C.B. and his stepfather and has bonded with the stepfather. Id. at 92.
All of these findings find support in the trial transcript. Yet the majority chooses to
discount these findings because the trial court did not expressly label them as addressing
C.B.'s "active efforts" prior to seeking termination ofC.W.'s parental rights. Majority at
27 n.16. In my view, the "active efforts" inquiry is not a talismanic incantation-instead,
as discussed below, the judge's findings fully support the requirements intended by the
legislature. That is enough.
I find persuasive an Iowa appellate court decision addressing a comparable state
statute. 3 In In re Interest ofC.A. V, the Iowa court held, "The 'active efforts' requirement
must be construed in the context of the existing circumstances." 787 N.W. 2d 96, 104
(Iowa Ct. App. 2010). In C.A. V, like the present case, the mother of an Indian child
"encouraged [the father] to participate in his daughter's life by facilitating visits before
his incarceration and by inviting continued contact during his prison stay." Id. at 103.
The mother's "efforts to preserve the parent-child relationship were not successful
because [the father] decided not to communicate with [the child]." Id. When the mother
3
The Iowa statute at issue provides in relevant part:
A party seeking ... termination of parental rights over an Indian child shall
provide evidence to 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.
IOWA CODE§ 232B.5(19); C.A. V., 787 N.W.2d at 103. The Iowa statute further requires that
"active efforts" be "vigorous and concerted." IowA CoDE§ 232B.5(19).
4
             
No. 92127-0
(Madsen, C.J., dissenting)
sought termination of the Indian child's biological father's parental rights, the Iowa court
held that because resources enumerated in the state Indian child welfare statute were not
available to the mother "her duty under the statute was satisfied." !d. In other words, the
mother did all that she could do to facilitate the father's relationship with the Indian
child; those efforts did not include the provision of agency or institutional resources and
services that she did not have access to or which were otherwise unavailable. That is the
circumstance and the appropriate result here also. Like C.A. V., the mother here
facilitated the development of the father's relationship with the Indian child, but those
efforts were unsuccessful. The mother testified concerning her efforts and other efforts to
assist C.W., but she could not personally provide institutional resources. 4
Further, when the Pacific County Superior Court entered its September 21, 2014
findings of fact, conclusions oflaw, and order oftermination, a domestic violence
protection order that prohibited C.W. from having any contact with C.B. or T.A.W. was
5
still in place. Once the no contact order was in place, the existence of that order made
4
C.B. testified that her tribe helped C.W. get into drug treatment, and that when she and C.W.
first separated she took T.A.W. to C.W.'s mother's house to visit with C.W. C.B. also later
made a book containing photographs ofT.A.W. from 2007 to 2011 and sent it to C.W. C.B.
testified that she did so "[b]ecause at the time I thought he wanted to be a dad." Verbatim Report
of Proceeding (Mar. 31, 2014) at 60.
5
The protection order was issued by the Shoalwater Bay Tribal Court on September 12, 2012
and expressly ran through September 12,2015. It prohibited "any contact whatsoever, in person
or though others, by phone, mail, e-mail, answering machine, or any means whatsoever, directly
or indirectly," thereby ensuring that C.W. had no contact with C.B. and T.A.W. Ex. 10, at 2. In
October 2012, C.W. moved the tribal court to modify the no contact order, but the resulting order
directed that "defendant shall attend DV [domestic violence] prevention classes" and that "upon
at least 6 months ofDV classes/program defendant may petition [the tribal] court for rehearing
on this matter." Ex. 12 (emphasis added). The October 2012 order did not alter the effect of the
5
             
No. 92127-0
(Madsen, C.J., dissenting)
any efforts by C.B. to facilitate C.W.'s participation in rehabilitative services (drng
treatment) or visitation impracticable. Thus, in my view, considering the "active efforts"
inquiry in the context of the existing circumstances, under the facts of this case any
obligation C.B. had to provide "active efforts" under the federal Indian Child Welfare
Act (ICWA), 25 U.S.C. §§ 1901-1963, or WICWA was satisfied.
This approach is in accord with the legislative purpose behind the ICWA and the
WICWA. See 25 U.S.C. § 1902 (noting the national policy to protect best interests of
Indian children and the stability oflndian tribes); RCW 13.38.030 (noting state's
commitment to protecting tribal relations and best interests oflndian children). As the
Iowa decision discussed above opined, "While the [state] ICWA focuses on preserving
Indian culture, it does not do so at the expense of a child's right to security and stability."
C.A. V, 787 N.W.2d at 104. Again, I agree. The best interests ofthe child remains the
touchstone even in this termination proceeding. 6
In applying the statutes here, we are to keep in mind the '"object to be
accomplished"' by the legislation and the "'consequences that would result"' from
tribal court's September 2012 no contact order, and there is no evidence that C. W. met the
prerequisite for revisiting the no contact order.
6
See In re Interest ofD.S., 806 N. W.2d 458, 465 (Iowa Ct. App. 2011) (paramount concern in
termination proceedings is the best interests of the child, and remains so even where ICW A
applies); see also id. at 474 (in determining best interests, primary considerations are the child's
safety, the best placement for furthering the long-term nurturing and growth of the child, and the
physical, mental, and emotional condition and needs of the child); see also In re Interest of
Pawling, I 01 Wn.2d 392, 399, 679 P.2d 916 (1984) (in termination proceeding where rights of
the parent and welfare of the child conflict, the best interests of the child must prevail).
6
             
No. 92127-0
(Madsen, C.J., dissenting)
construing the statute one way or another. 7 BAC Home Loans, 180 Wn.2d at 766
(internal quotation marks omitted) (quoting Burns v. City of Seattle, 161 Wn.2d 129, 146,
164 P.3d 475 (2007)). Here, the trial court's orders terminating C.W.'s parental rights
and entering an adoption decree serve the legislative dual purposes of protecting tribal
relations and the best interests of the Indian child. As a result of the orders, Indian child
T.A.W. is in an Indian home with his Indian natural mother and with an Indian stepfather
with whom T.A.W. has bonded. As discussed above, in my view, the trial court's
findings sufficiently cover any "active efforts" inquiry and the majority's remand for
further findings concerning "active efforts" is not necessary.
Implicit in the majority's decision is that more is required of the mother than was
performed here. As discussed above, I disagree with that premise particularly in this
case, where a protection order forbade contact of any type between the father and the
mother and child. The correct approach is to leave the assessment of active efforts to the
sound discretion of the trial judge, as both the ICWA and the WICWA direct, in light of
the circumstances of the case.
Conclusion
Both the ICWA and the WICWA vest discretion in the trial court to assess active
efforts. In doing so, in my view, the trial court will take into account the particular
circumstances of each case and will remain cognizant of the best interests of the Indian
7
Notably, the problem that the ICWA was intended to address-"abusive child welfare
practices" that removed Indian children from their homes and placed them in non-Indian
homes-is not present here. Miss. Band a,[ Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.
Ct. 1597, 104 L. Ed. 2d 29 (1989).
7
             
No. 92127-0
(Madsen, C.J., dissenting)
child. In my view, the trial court here did so. Remand for reconsideration of the trial
court's termination decision is not warranted on this basis. Accordingly, I dissent.
8
             
No. 92127-0
(Madsen, C.J., dissenting)
9