Washington Supreme Court Opinion on Active Efforts

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.

Washington SCT Intervenes in Nooksack Disenrollees’ Housing Suit

Here are the materials in Oshiro v. Washington State Housing Finance Commission:

Relative Placement in Washington Supreme Court Decision

Even though this is not an ICWA case, three people have sent me this opinion by Justice Montoya Lewis regarding the primacy of relative placement in child protection proceedings. This opinion points to all sorts of issues that beleaguers relative placement, especially certain aspects of background checks and prior involvement with the system. Here, the Court explicitly holds that prior involvement in the system alone cannot be consider as a reason to keep a child out of a relative placement, and seems to imply that both criminal history and immigration status cannot be considered either.

But no wonder the ICWA advocates  noted this case–you can see ICWA’s influences implicitly and explicitly throughout:

This statutory scheme makes it clear that both the Department and the courts are directed by the legislature to preserve the family unit and, when unable to do so, to place the child with family members, relatives, or fictive kin before looking beyond those categories to nonrelatives.


This means that the dependency court is charged with actively
ensuring that relative placements have been fairly evaluated. This is an active
process required at each hearing. Id. Making a finding that no such family
placements exist at one hearing does not mean that the inquiry ends: the statute
contemplates that the inquiry is ongoing, recognizing that family circumstances
change, as they so often do, and as they did in this very case. Id.

(emphasis added)

Courts must do more than give a passing acknowledgment for relative preference,
as occurred in this case. Courts must actually treat relatives as preferred placement
options and cannot use factors that operate as proxies for race or class to deny
placement with a relative.


Prior involvement with child welfare agencies, without more, can serve as a proxy for race or class, given that families of Color are disproportionately impacted by the child welfare system.11 [!!!!!!]

(emphasis and punctuation added and oh BY THE WAY what does that footnote 11 say?? Is it a very long footnote on ICWA, the gold standard?? Now THAT is a long footnote I don’t mind reading):

11 For example, under the Indian Child Welfare Act (ICWA)—the “gold standard” in child welfare policy—children in foster care or preadoptive placement “shall be placed in the least restrictive setting which most approximates a family” with highest preference to a member of the child’s extended family, absent “good cause to the contrary.” 25 U.S.C. § 1915(b); BUREAU OF INDIAN AFFAIRS , U.S. DEP T OF INTERIOR, GUIDELINES FOR I MPLEMENTING THE INDIAN CHILD
WELFARE A CT 39 (2016). A party seeking to deviate from this placement preference must state their reasons on the record and bears the burden of proving by clear and convincing evidence that there is good cause to depart from the placement preference. 25 C.F.R. § 23.132(a), (b). One reason a court may conclude that there is good cause to depart from the placement preference is the unavailability of a suitable placement, but “the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child’s parent or extended family resides or with which the Indian child’s parent or extended family members maintain social and cultural ties,” and socioeconomic status may not be a basis to depart from the placement preference. 25 C.F.R. § 23.132(c)(5), (d). Notably, prior contact with the child welfare system, criminal history, and poverty are not good cause reasons to depart from the strong preference for placement with relatives under ICWA. Likewise, tribes located around Washington State prioritize placement with extended family or other members of the tribal community and rarely treat factors like prior child welfare proceedings or criminal history as disqualifying in determining out-of-home placements for children. See, e.g., NISQUALLY TRIBAL CODE § 50.09.09; NOOKSACK LAWS & ORDINANCES § 15.09.100; JAMESTOWN S’ KLALLAM TRIBE T RIBAL CODE § 33.01.09(J); PUYALLUP TRIBAL C ODE § 7.04.840. But see TULALIP TRIBAL CODE § 4.05.110(4) (prohibiting placement with someone with a criminal conviction, but only for certain crimes identified as disqualifying crimes by the social services division charged by the Tulalip Tribe with the responsibility to protect the health and welfare of Tulalip families and their children (beda?chelh)).

Finally, “Courts must afford meaningful preference to placement with relatives.” (not my emphasis this time)

The Washington Supreme Court is doing very important work right now, as are some of the best child protection activists/litigators in the country (IYKYK).

WA Supreme Court En Banc Decision on Active Efforts [ICWA]

Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. Trying to pull out one quote is nearly impossible–just go read from page 16 to the end. And her last paragraph may become on one of the most quoted in ICWA caselaw:

The history of the United States and its relationship with Native tribes, communities, and families tell a story of promises made and broken. We rely on the commitment made by Congress and the Washington State Legislature to decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met. Today, we hold our state child welfare system and our courts to those promises. We reverse the dependency court’s finding that the Department provided active efforts and remand to the trial court with instructions to order the Department to provide active efforts in accordance with this ruling. We also order the dependency court to not proceed to hear the termination petitions until the Department has provided active efforts.


In addition, the Washington team assembled a number of amicus briefs (including the MSU Indian Law Clinic) on this case. A special shout out to Tara Urs for being so on top of these cases every time. 

Seattle Times: “A victory for Native children’s rights to remain with family and tribe”

Op-ed by Kitty-Ann van Doorninck, Helen Halpert and Ron J. Whitener, here, profiling the recent watershed ICWA decision by the Washington Supreme Court, authored by Justice Raquel Montoya-Lewis.

Washington Supreme Court Finds Reason to Know in In re Greer/ZJG [ICWA]

The Supreme Court reversed the Court of Appeals. Justice Montoya-Lewis wrote the unanimous opinion.

The opinion is here: 

It is a long opinion with a lot of history, and information. Friend of the blog Sandy White Hawk is featured extensively. There are important law review articles and social science articles cited.

Importantly for future cases, the Court held “We hold that a court has a ‘reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage.”

The Indian Law Clinic at MSU represented the Tribes in this case, along with the Center for Indigenous Research and Justice.

(To be clear I am Very Excited about this and it is a Big Deal.)