Wash. Rev. Code » Title 13 · Chapter 13.38

Wash. Rev. Code § 13.38.130

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(1) 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.
(2) No involuntary foster care placement may be ordered in a child custody proceeding in the absence of a determination, supported by clear and convincing evidence, 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. For purposes of this subsection, any harm that may result from interfering with the bond or attachment between the foster parent and the child shall not be the sole basis or primary reason for continuing the child in foster care.
(3) No involuntary termination of parental rights may be ordered in a child custody proceeding in the absence of a determination, 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. For the purposes of this subsection, any harm that may result from interfering with the bond or attachment that may have formed between the child and a foster care provider shall not be the sole basis or primary reason for termination of parental rights over an Indian child.
(4)(a) For purposes of this section, "qualified expert witness" means a person who provides testimony in a proceeding under this chapter to assist a court in the determination of whether the continued custody of the child by, or return of the child to, the parent, parents, or Indian custodian, is likely to result in serious emotional or physical damage to the child. In any proceeding in which the child's Indian tribe has intervened pursuant to RCW 13.38.090 or, if the department is the petitioner and the Indian child's tribe has entered into a local agreement with the department for the provision of child welfare services, the petitioner shall contact the tribe and ask the tribe to identify a tribal member or other person of the tribe's choice who is recognized by the tribe as knowledgeable regarding tribal customs as they pertain to family organization or child rearing practices. The petitioner shall notify the child's Indian tribe of the need to provide a "qualified expert witness" at least twenty days prior to any evidentiary hearing in which the testimony of the witness will be required. If the child's Indian tribe does not identify a "qualified expert witness" for the proceeding on a timely basis, the petitioner may proceed to identify such a witness pursuant to (b) of this subsection.
(b) In any proceeding in which the child's Indian tribe has not intervened or entered into a local agreement with the department for the provision of child welfare services, or a child's Indian tribe has not responded to a request to identify a "qualified expert witness" for the proceeding on a timely basis, the petitioner shall provide a "qualified expert witness" who meets one or more of the following requirements in descending order of preference:
(i) A member of the child's Indian tribe or other person of the tribe's choice who is recognized by the tribe as knowledgeable regarding tribal customs as they pertain to family organization or child rearing practices for this purpose;
(ii) Any person having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child's tribe;
(iii) Any person having substantial experience in the delivery of child and family services to Indians, and knowledge of prevailing social and cultural standards and child rearing practices in Indian tribes with cultural similarities to the Indian child's tribe; or
(iv) A professional person having substantial education and experience in the area of his or her specialty.
(c) When the petitioner is the department or a supervising agency, the currently assigned department or agency caseworker or the caseworker's supervisor may not testify as a "qualified expert witness" for purposes of this section. Nothing in this section shall bar the assigned department or agency caseworker or the caseworker's supervisor from testifying as an expert witness for other purposes in a proceeding under this chapter. Nothing in this section shall bar other department or supervising agency employees with appropriate expert qualifications or experience from testifying as a "qualified expert witness" in a proceeding under this chapter. Nothing in this section shall bar the petitioner or any other party in a proceeding under this chapter from providing additional witnesses or expert testimony, subject to the approval of the court, on any issue before the court including the determination of whether the continued custody of the child by, or return of the child to, the parent, parents, or Indian custodian, is likely to result in serious emotional or physical damage to the child.
[ 2011 c 309 s 13.]
Notes of Decisions
Cited in 37 cases (17 in the last 5 years), 2014–2025 · leading case: R.B. v. C.W.
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R.B. v. C.W. (2016) wash · cites it 6× “§ 1912 (d) of ICWA and RCW 13.38.130(1) of WICWA should have applied to the termination trial.”
In re Dependency of G.J.A. (2021) wash · cites it 9× “§ 1912 (d); RCW 13.38.130. Active efforts must be thorough, timely, consistent, and culturally appropriate.”
R.B. v. C.W. (2015) washctapp · cites it 12× “§ 1912 (d) and RCW 13.38.130(1) required CB and RB to show that active efforts were made to provide CW with remedial services and rehabilitative programs to prevent the breakup of the Indian family, and to show that those programs were unsuccessful, before the trial court could…”
In re Dependency of A.L.K., L.R.C.K.-S., D.B.C.K.-S. (2020) wash · cites it 3× “§ 1912 (d); see also RCW 13.38.130(1). Two of L.K.’s three children are Indian children for the purposes of ICWA and WICWA.”
In Re The Welfare Of A.l.c. (2019) washctapp “RCW 13.38.130(1). We will apply these provisions coextensively unless one provision provides greater protection than the other, in which case, we will apply the more protective act.”
In Re The Adoption Of T.a.w. (2019) washctapp · cites it 7× “10  Horne contacted CW when he was served with the Tribal no-contact order to offer help. (FF C22). The trial court concluded “that the active efforts described [in its findings were] more than sufficient to meet the requirements of the statute.”
In re the Termination Of: S. E. & A. E. (2016) washctapp · cites it 6× “and S.E. RCW 13.34.190(l)(a)(i). Challenges under the Indian Child Welfare Act (ICWA) In the context of Indian children, federal and state statutes place additional burdens on DSHS prior to termination.”
In re Adoption of T.A.W. (2016) wash · cites it 6× “§ 1912 (d) ofiCWA and RCW 13.38.130(1) ofWICWA should have applied to the termination trial.”
In the Matter of the Parental Rights to: D.J.S. (2020) washctapp · cites it 6× “RCW 13.38.130(1) (emphasis added). Neither 25 U.”
In re Adoption of T.A.W. (2016) wash · cites it 6× “§ 1912 (d) ofiCWA and RCW 13.38.130(1) ofWICWA should have applied to the termination trial.”
In the Matter of the Dependency of: A.T. (2024) washctapp · cites it 6× “RCW 13.38.130(1); 25 U.S.C. § 1912 (d). Second, the court must find “by clear and convincing evidence” that continued custody by the child’s parents “is likely to result in serious emotional or physical damage to the child.”
In the Matter of the Welfare of: C.J.J.I. (2024) washctapp · cites it 5× “§ 1912 (d); RCW 13.38.130. Active efforts must be thorough, timely, consistent, and culturally appropriate.”
Show all 37 citing cases →
— Wash. Rev. Code § 13.38.130(1) — 35 cases
R.B. v. C.W. (2016) wash “§ 1912 (d) of ICWA and RCW 13.38.130(1) of WICWA should have applied to the termination trial.”
In re Dependency of G.J.A. (2021) wash “§ 1912 (d); RCW 13.38.130. Active efforts must be thorough, timely, consistent, and culturally appropriate.”
R.B. v. C.W. (2015) washctapp “§ 1912 (d) and RCW 13.38.130(1) required CB and RB to show that active efforts were made to provide CW with remedial services and rehabilitative programs to prevent the breakup of the Indian family, and to show that those programs were unsuccessful, before the trial court could…”
In re Dependency of A.L.K., L.R.C.K.-S., D.B.C.K.-S. (2020) wash “§ 1912 (d); see also RCW 13.38.130(1). Two of L.K.’s three children are Indian children for the purposes of ICWA and WICWA.”
In Re The Welfare Of A.l.c. (2019) washctapp “RCW 13.38.130(1). We will apply these provisions coextensively unless one provision provides greater protection than the other, in which case, we will apply the more protective act.”
— Wash. Rev. Code § 13.38.130(2) — 4 cases
In the Matter of the Dependency of: A.T. (2024) washctapp “RCW 13.38.130(1); 25 U.S.C. § 1912 (d). Second, the court must find “by clear and convincing evidence” that continued custody by the child’s parents “is likely to result in serious emotional or physical damage to the child.”
In Re The Dependency Of: B.m.a., Dob 10/26/08 Seth Gladstone, App v. Dshs, Resp (2017) washctapp
Dependency Of: Z.j.g. 9/3/16, Scott James Greer v. Dshs (2019) washctapp
Dependency Of: K.l.c., 05/26/03, Dshs, Resp v. Nicole Cadiente, App (2014) washctapp
— Wash. Rev. Code § 13.38.130(3) — 9 cases
In Re The Adoption Of T.a.w. (2019) washctapp “10  Horne contacted CW when he was served with the Tribal no-contact order to offer help. (FF C22). The trial court concluded “that the active efforts described [in its findings were] more than sufficient to meet the requirements of the statute.”
In the Matter of the Parental Rights to: D.J.S. (2020) washctapp “RCW 13.38.130(1) (emphasis added). Neither 25 U.”
In re the Termination Of: S. E. & A. E. (2016) washctapp “and S.E. RCW 13.34.190(l)(a)(i). Challenges under the Indian Child Welfare Act (ICWA) In the context of Indian children, federal and state statutes place additional burdens on DSHS prior to termination.”
In Re The Dependency Of: F.y.o., Michael Foster Jr. v. Dcyf (2020) washctapp
In Re The Dep Of D.c-c., Janaye M. Clausen, V. Dcyf (2021) washctapp
— Wash. Rev. Code § 13.38.130(4)(a) — 1 case
Dependency Of K.s., Dob: 12/20/13, Dshs, Resp v. Michelle Frank (2017) washctapp
— Wash. Rev. Code § 13.38.130(4)(b) — 3 cases
In re the Termination Of: S. E. & A. E. (2016) washctapp “and S.E. RCW 13.34.190(l)(a)(i). Challenges under the Indian Child Welfare Act (ICWA) In the context of Indian children, federal and state statutes place additional burdens on DSHS prior to termination.”
Dependency Of K.s., Dob: 12/20/13, Dshs, Resp v. Michelle Frank (2017) washctapp
In Re The Adoption Of T.a.w. (2019) washctapp “10  Horne contacted CW when he was served with the Tribal no-contact order to offer help. (FF C22). The trial court concluded “that the active efforts described [in its findings were] more than sufficient to meet the requirements of the statute.”
— Wash. Rev. Code § 13.38.130(e) — 1 case
In the Matter of the Welfare of: C.J.J.I. (2024) washctapp “§ 1912 (d); RCW 13.38.130. Active efforts must be thorough, timely, consistent, and culturally appropriate.”
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