In this decision, the Court of Appeals holds that a child’s membership in a tribe, even absent eligibility for enrollment, is sufficient for a child to be an Indian child pursuant to the Indian Child Welfare Act (ICWA). The Court of Appeals affirms the trial court order terminating the parent-child legal relationship between the father and the children because the record supported the trial court’s finding that the department provided active efforts for the father, but reverses the order terminating the parent-child legal relationship between the mother and the children because the record did not support the trial court’s finding that the department provided active efforts for the mother, and remands further proceedings.

A representative of the Colville Confederated Tribes appeared at the temporary custody hearing, confirmed that the mother is an enrolled member of the Tribe, and stated that while she had not been able to verify whether the children were eligible for enrollment, they would be considered members of the Tribe. The trial court did not make any ICWA findings, a week later ordered the mother to complete an ICWA assessment form, and later ruled that because the children were not eligible for enrollment, ICWA did not apply.

Three years later, after the department filed a motion to terminate, the department reported that the tribal representative indicated that the children were members but not enrolled. The trial court found that membership absent enrollment was an “ICWA gray area.”

At the commencement of the termination hearing, the department informed the court that the Tribe considered the case to be subject to ICWA. The court found that there was reason to know the children are Indian children and continued the hearing. The Tribe participated in the rest of the proceedings. The trial court applied ICWA when it terminated parental rights.

The mother appealed. The Court of Appeals agrees with the mother that the court erred by not timely recognizing the children’s Indian status, noting that the statutory definition of “Indian child” references membership rather than enrollment and that the ICWA guidelines specifically explain that enrollment is not always required for membership. However, the Court of Appeals determines that the error does not automatically provide grounds for reversal, as the question to be resolved is not whether the department believed it had to provide active efforts but instead, whether the record supports the trial court’s findings that the department made active efforts. Applying the clear error standard of review, the Court of Appeals holds that the record supports this finding as to the father but does not support this finding for the mother. Although the treatment plan required the mother to have a legal form of income sufficient to support herself and her children and the mother requested job training and assistance, the record does not indicate that the department offered any job training or assistance.

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