When Dependency Equals Placement: Washington Supreme Court Requires ICWA/WICWA “Active Efforts” Findings at Dependency Fact‑Finding and Orders Immediate Return Absent Danger

When Dependency Equals Placement: Washington Supreme Court Requires ICWA/WICWA “Active Efforts” Findings at Dependency Fact‑Finding and Orders Immediate Return Absent Danger

Introduction

In In re Dependency of C.J.J.I., the Washington Supreme Court held that, when a child who is an “Indian child” under the Indian Child Welfare Act (ICWA) and the Washington State Indian Child Welfare Act (WICWA) is living outside the home at the time of the dependency fact‑finding hearing, the juvenile court must make an “active efforts” finding under WICWA (and by parity with ICWA) before entering an order of dependency that maintains the out‑of‑home placement. If the court fails to make such a finding, the dependency and any subsequent dispositional order must be vacated and the child immediately returned to the parent or Indian custodian unless return would subject the child to substantial and immediate danger.

The case involves mother M.R. and her three children: two (C.V.I. and C.J.J.I.) who are Indian children under ICWA/WICWA via their father’s Cheyenne River Sioux Tribe affiliation, and one (R.A.R.) who is not. After a series of reports and shelter care proceedings in 2022, the Department of Children, Youth, and Families (Department) pursued dependency. The juvenile court found dependency but deferred the ICWA/WICWA “active efforts” inquiry to disposition and expressly maintained the children’s out‑of‑home placements. On appeal, the Court of Appeals held that the juvenile court erred by not making the “active efforts” finding at dependency. The Supreme Court granted review and now clarifies that dependency fact‑finding hearings that functionally effectuate or continue a foster care placement trigger ICWA/WICWA’s heightened protections.

The decision addresses three core issues:

  • Whether a dependency fact‑finding hearing is a “foster care placement” event under ICWA/WICWA when the child is already out of the home.
  • Whether the juvenile court must determine “active efforts” at that stage and receive qualified expert witness (QEW) testimony supporting the statutory “serious emotional or physical damage” finding.
  • The proper remedy when those ICWA/WICWA requirements are not met.

Summary of the Judgment

The Supreme Court affirms the Court of Appeals in part and holds:

  • A juvenile court must make “active efforts” findings whenever it places or maintains the placement of an Indian child out of the home, including at the dependency fact‑finding stage if the child is then out of the home.
  • At that stage, the court must also make the heightened ICWA/WICWA determination—supported by clear and convincing evidence and QEW testimony—that continued custody by the parent is likely to result in serious emotional or physical damage to the child.
  • Because the juvenile court here refused to make “active efforts” findings at the dependency fact‑finding hearing and nevertheless maintained out‑of‑home care, the dependency and the subsequent disposition orders as to the two Indian children must be vacated.
  • The children must be immediately returned to their mother unless doing so would subject them to substantial and immediate danger or threat of such danger (RCW 13.38.160).
  • The dependency/disposition orders stand as to the non‑Indian child (R.A.R.) because ICWA/WICWA’s heightened protections do not apply to that child.

Analysis

Precedents and Authorities Cited

  • ICWA and WICWA textual framework:
    • ICWA, 25 U.S.C. §§ 1901–1963, including § 1901 (congressional findings), § 1902 (policy), § 1903 (definitions, including “foster care placement”), § 1912(d) (“active efforts”), § 1912(e) (clear and convincing evidence with QEW), § 1921 (apply higher protection), and § 1920 (remedy upon improper removal/retention).
    • WICWA, ch. 13.38 RCW, including RCW 13.38.020 (scope), RCW 13.38.040 (definitions and WICWA’s specific “active efforts” mandate in dependency proceedings seeking continued out‑of‑home care), RCW 13.38.130 (substantive ICWA/WICWA requirements at foster care placement), RCW 13.38.160 (immediate‑return remedy).
    • 25 C.F.R. § 23.2 (definitions; “child‑custody proceeding”), § 23.103 (scope).
  • Statutory interpretation methodology:
    • Department of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1 (2002) (plain meaning; context; structure).
    • Envolve Pharmacy Solutions, Inc. v. Department of Revenue, 4 Wn.3d 142 (2024) and PeaceHealth St. Joseph Med. Ctr. v. Department of Revenue, 196 Wn.2d 1 (2020) (contextual reading).
    • Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985) (ambiguities construed liberally in favor of Indians).
  • Washington ICWA/WICWA jurisprudence:
    • In re Dependency of Z.J.G., 196 Wn.2d 152 (2020) (ICWA applicability; standard of review).
    • In re Adoption of T.A.W., 186 Wn.2d 828 (2016) and In re Dependency of J.M.W., 199 Wn.2d 837 (2022) (apply the more protective law; § 1921 principle).
    • In re Dependency of G.J.A., 197 Wn.2d 868 (2021) (WICWA requires courts to evaluate active efforts at every hearing when child is out‑of‑home).
    • In re Dependency of E.M., 3 Wn.3d 845 (2024) (distinguishing roles of fact‑finding vs. disposition; services ordered at disposition; not controlling on placement effect at dependency).
    • In re Dependency of A.L.K., 196 Wn.2d 686 (2020) (remedy for lack of active efforts at removal; distinguished here because the juvenile court in A.L.K. made findings at dependency, whereas here the court refused to do so at dependency).
  • Persuasive authorities from other states:
    • State ex rel. CYFD v. Marlene C., 2009-NMCA-058, aff’d sub nom. In re Esther V., 2011-NMSC-005 (New Mexico: ICWA § 1912(d) and (e) findings required at adjudication because that stage affords maximum due process and evidentiary protections).
    • In re T.S., 2013 OK CIV APP 108, 315 P.3d 1030 (Oklahoma: adjudicatory hearing is proper stage for § 1912 findings).

Legal Reasoning

The Court’s reasoning is grounded in text, structure, purpose, and the liberal construction canon favoring Indian families and tribes.

  • Purpose and context drive interpretation. ICWA was enacted to stop the “wholesale removal” of Indian children and to ensure due process and tribal‑culturally informed decision‑making. Washington enacted WICWA to strengthen those protections in light of persistent disproportionality. Reading “foster care placement” broadly to include a dependency order that maintains out‑of‑home care best serves those purposes.
  • Statutory text supports the requirement at dependency fact‑finding.
    • ICWA and WICWA define “foster care placement” as any action removing a child for temporary placement where the parent cannot demand return (25 U.S.C. § 1903(1)(i); RCW 13.38.040(3)(a)).
    • WICWA further provides: “In any dependency proceeding under chapter 13.34 RCW, in which the petitioner is seeking the continued out‑of‑home placement of an Indian child, the department … must show to the court that it has actively worked with the parent …” (RCW 13.38.040(1)(a)(ii)). Thus, when the Department seeks an order of dependency that maintains out‑of‑home care, the dependency hearing is itself a “dependency proceeding” in which “continued out‑of‑home placement” is at issue—and active efforts must be proven then.
    • The Court underscores practical reality: even though RCW 13.34.110(4) contemplates an immediate disposition after fact‑finding, delays are common. During the gap, dependency orders often include or effectuate placement decisions (including via pattern orders that maintain placement pending disposition). Here, the court’s written dependency order explicitly continued out‑of‑home care “until disposition.” That is a placement decision.
  • Due process and evidence rules counsel adjudicating ICWA/WICWA findings at fact‑finding. Following New Mexico and Oklahoma, the Court reasons that the adjudicatory phase (Washington’s “dependency fact‑finding”) is where rules of evidence apply and QEW testimony can be received in a procedurally robust setting. Disposition, by contrast, allows reliance on information that may not meet evidentiary standards. Because ICWA/WICWA require clear and convincing proof, including QEW testimony, that continued custody would likely cause serious emotional or physical damage, the fact‑finding hearing is the proper stage to make those findings when the order will maintain out‑of‑home care.
  • Rejection of the Department’s “disposition‑only” view. The Department argued that active efforts and placement determinations are solely dispositional. The Court disagrees. While service orders occur at disposition (E.M.), a dependency order can and often does maintain out‑of‑home placement pending disposition. That practical and legal effect triggers ICWA/WICWA safeguards at fact‑finding.
  • Continuous “active efforts” oversight. Emphasizing G.J.A., the Court reiterates that courts must assess active efforts at every hearing when a child is out‑of‑home. Far from being an “absurd” result, the Court finds it fully consistent with WICWA’s design to ensure sustained, meaningful remedial work with the family to prevent breakup.
  • Scope limitation. The Court confines its holding to cases where the child is out of the home at the time of fact‑finding. If the child is in the home, the WICWA subsection invoked here (RCW 13.38.040(1)(a)(ii))—by its terms keyed to “continued out‑of‑home placement”—is not triggered in the same way.

Remedy

Because the juvenile court refused to decide “active efforts” at the dependency fact‑finding hearing yet maintained out‑of‑home care, the Supreme Court:

  • Vacates the dependency order and, necessarily, the subsequent disposition order for the two Indian children.
  • Orders immediate return unless return “would subject the child to substantial and immediate danger or threat of such danger” (RCW 13.38.160), in alignment with ICWA § 1920.
  • Distinguishes In re A.L.K., where the trial court made ICWA/WICWA findings at the dependency stage; here, the refusal to take up “active efforts” at dependency fact‑finding warrants vacatur of both dependency and disposition.

Impact

This decision will reshape Washington dependency practice in cases involving Indian children by front‑loading ICWA/WICWA’s core protections and aligning adjudicatory practice with the statutes’ protective purposes.

  • For juvenile courts:
    • Courts must make express findings on “active efforts” at every hearing maintaining out‑of‑home care, including dependency fact‑finding. A failure to do so risks reversal, vacatur, and immediate‑return orders.
    • At dependency fact‑finding, when the order will maintain out‑of‑home care, courts must receive QEW testimony and make the clear‑and‑convincing “serious damage” finding required by ICWA/WICWA.
    • Pattern orders should be used with care: checking a box that maintains out‑of‑home care triggers ICWA/WICWA duties at the adjudicatory phase.
  • For the Department and petitioners:
    • Prepare to prove “active efforts” at fact‑finding with documented, culturally appropriate, and family‑tailored services offered and undertaken pre‑ and post‑removal.
    • Secure QEW participation early—ideally by the earliest 30‑day shelter care hearing and certainly by dependency fact‑finding—so the record satisfies ICWA/WICWA.
    • Expect continuous judicial monitoring of active efforts at every hearing while the child remains out‑of‑home.
  • For parents’ and children’s counsel:
    • Challenge any attempt to defer “active efforts” to disposition when the order maintains out‑of‑home placement; insist on findings and QEW testimony at fact‑finding.
    • Develop evidence regarding the suitability and uptake of services, cultural considerations, and less restrictive alternatives to removal.
    • Preserve objections; the Court’s remedy demonstrates the power of a complete adjudicatory record for immediate return.
  • For tribes:
    • The decision heightens the importance of timely tribal intervention and QEW identification to ensure tribal child‑rearing norms and community standards inform the court’s determinations.
    • Tribal collaboration with the Department on early, culturally grounded services will be central to satisfying “active efforts.”
  • Systemic effects:
    • Reduces the risk that Indian children will spend weeks or months out of home without ICWA/WICWA findings, by tying those findings to the earliest adjudicatory decision that keeps a child out‑of‑home.
    • May prompt consolidated dependency/disposition settings when feasible—but if disposition is later, the ICWA/WICWA findings cannot be postponed.
    • Positions Washington as a jurisdiction insisting on early, rigorous ICWA/WICWA compliance, likely influencing practice beyond the state.

Complex Concepts Simplified

  • Active efforts: More robust than “reasonable efforts.” They require affirmative, culturally appropriate, and sustained engagement with the family to prevent breakup—often including hands‑on assistance, coordination with tribal resources, and tailored services—going beyond merely providing referrals.
  • Foster care placement: Under ICWA/WICWA, not just the initial removal. It includes any court action that removes, or maintains the removal of, an Indian child from the parent where the parent cannot demand immediate return and parental rights are not terminated. A dependency order that maintains out‑of‑home care is such an action.
  • Dependency fact‑finding vs. disposition:
    • Fact‑finding (adjudication) decides whether the child is “dependent.” Rules of evidence apply. Under this decision, if the order maintains out‑of‑home care, the court must also decide ICWA/WICWA issues (active efforts; serious‑damage finding with QEW) at this stage.
    • Disposition follows dependency and sets services and placement going forward; rules of evidence are relaxed.
  • Qualified Expert Witness (QEW): A culturally informed expert who testifies about whether the child is likely to suffer serious emotional or physical damage if continued in parental custody, ensuring the court does not apply a “white, middle‑class” standard to Indian families.
  • Burden and standard of proof:
    • Dependency itself is typically proven by a preponderance of the evidence.
    • But ICWA/WICWA require clear and convincing evidence, including QEW testimony, to order or maintain out‑of‑home foster care placement of an Indian child.
  • Remedy—Immediate return: If an Indian child is improperly removed or retained (e.g., without required ICWA/WICWA findings), the court must immediately return the child to the parent or Indian custodian unless that would subject the child to substantial and immediate danger (RCW 13.38.160; 25 U.S.C. § 1920).
  • More protective law rule: If state and federal provisions differ, courts apply the rule that provides greater protection to the Indian family (25 U.S.C. § 1921; Washington cases T.A.W., J.M.W.).

Conclusion

The Washington Supreme Court’s decision in In re Dependency of C.J.J.I. establishes a clear and consequential rule: when a dependency fact‑finding hearing will maintain the out‑of‑home placement of an Indian child, the court must make ICWA/WICWA “active efforts” findings and receive QEW testimony supporting the clear‑and‑convincing “serious damage” finding before entering the dependency order. This reading of “foster care placement” honors ICWA/WICWA’s protective purposes, comports with WICWA’s text requiring “active efforts” in dependency proceedings seeking continued out‑of‑home care, and ensures that the most robust due process protections operate at the decisive stage. Failure to comply results in vacatur of dependency and disposition and immediate return unless substantial and immediate danger is shown.

Practically, the decision brings ICWA/WICWA compliance forward in time, insisting on early, culturally grounded, and sustained remedial work with families, and meaningful tribal participation. It reinforces that Washington courts must examine “active efforts” at every hearing during out‑of‑home care and elevates the adjudicatory record to the proper centerpiece for ICWA/WICWA determinations. In a system where delays are common and stakes are profound, this ruling is a significant recalibration toward the statutes’ core commitments: preventing unnecessary breakup of Indian families and protecting the best interests of Indian children in a manner consistent with their tribes’ cultural standards.

Case Details

Year: 2025
Court: Supreme Court of Washington

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