Catching up on posting the summer’s reported ICWA cases, so I’m starting with this Washington Supreme Court opinion on active efforts for the initial or shelter care hear.
We took discretionary interlocutory review of this case primarily to decide whether WICWA required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Consistent with the plain text and purpose of WICWA, we conclude that it did. We also conclude that the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. We remand to the trial court for further proceedings consistent with this opinion.
This opinion is trying to find some clarity in what ICWA standards apply when. Here are the two questions the Court sought to answer:
First, whether the department is required to make active efforts to keep an Indian child with their family under such circumstances as presented here. Second, whether the trial court was required to make a formal finding at the interim shelter care hearing that continued placement out of the home was necessary to prevent imminent physical damage or harm to the child.
The section question is essentially asking if the emergency standard of 1922 should apply whenever a child is placed out of the home and there is no 1912 (active efforts, QEW) findings. Interim shelter care hearings often happen before a jurisdictional/adjudication hearing, and can sometimes (often) extend the time before adjudication hearing happens. In many states the 1912 findings happen either at adjudication or even after that, at the disposition hearing.