46 Children’s Legal Rights Journal [Vol. 37: 1 2017]
requirements of ICWA were satisfied.260 But the Court of Appeals disagreed.261 It found
insufficient evidence in the record “that active efforts were made to provide C.W. with remedial
services and rehabilitative programs to prevent the breakup of the Indian family.”262 The fact
that C.W. was not an Indian was irrelevant, the court found, because “the plain language of
ICWA states that its provisions apply to the termination of parental rights to an Indian child
without regard to a parent’s status.”263 In short, despite plentiful reason for concluding that C.W.
was an unfit parent, despite the fact that he chose to absent himself from his child’s life, despite
the best judgment of both the Indian mother and her tribe, and despite the fact that ICWA was
operating in this case to interfere with the Indian parent’s choices, contrary to the wishes of the
tribe, and in service to the desires of the non-Indian birth parent, the court barred the termination
(and consequent adoption) because the parties had not made “timely and diligent efforts” to
“engag[e] [C.W.] . . . in reasonably available and culturally appropriate preventive, remedial, or
The Washington Supreme Court affirmed. “[W]hether the parent whose rights are being
terminated is non-Indian is immaterial,” it found.265 Consequently the “active efforts” provision
of ICWA—which requires the state to prove that “active efforts have been made to . . . to prevent
the breakup of the Indian family”266—meant the state must provide remedial services to a non-
260 In re Adoption of T.A. W., 188 Wash. App. at 806.
261 Id. at 799.
262 Id. at 806–07.
263 Id. at 808–09.
264 WASH. REV. CODE § 13. 38.040. In Adoptive Couple v. Baby Girl, the South Carolina Supreme Court observed
that the “active efforts” provision “requires that remedial services be offered to . . . attempt to stimulate Father’s
desire to be a parent.” 398 S.C. 625, 647 (2012). The United States Supreme Court, in reversing this decision,
observed that “if prospective adoptive parents were required to engage in the bizarre undertaking of ‘stimulat[ing]’ a
biological father’s ‘desire to be a parent,’ it would surely dissuade some of them from seeking to adopt Indian
children.” Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2563–64 (2013).
265 2016 WL 6330589, at 8 (Wash. Oct. 27, 2016)