In re D.H. ( 2017 )

No. 116,422
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of D.H., Jr.,
A Minor Child.
SYLLABUS BY THE COURT
1.
The rules pertaining to the termination of parental rights are reviewed and applied.
2.
Indian children are in a special category when it comes to child in need of care
proceedings. In Kansas, a child in need of care proceeding is generally governed by the
Revised Kansas Code for Care of Children, except in those instances when the court
knows or has reason to know that an Indian child is involved in the proceeding, in which
case, the Indian Child Welfare Act applies.
3.
If there is any reason to believe a child is an Indian child, the agency and state
court must treat the child as an Indian child, unless and until it is determined that the
child is not a member or is not eligible for membership in an Indian tribe.
4.
Where the court knows or has reason to know that an Indian child is involved in a
child in need of care proceeding, the party seeking the termination of parental rights to an
Indian child shall notify the Indian child's tribe, by registered mail with return receipt
requested, of the pending proceedings and of the tribe's right of intervention.
1
5.
The notice requirement includes providing responses to requests for additional
information, where available, in the event that a tribe indicates that such information is
necessary to determine whether a child is an Indian child.
Appeal from Meade District Court; VAN Z. HAMPTON, judge. Opinion filed August 4, 2017.
Affirmed in part and remanded with directions.
J. Scott James, of Greensburg, for appellant natural mother.
Robert J. Kennington, of Garden City, for appellant natural father.
Laura H. Lewis, county attorney, for appellee.
Before HILL, P.J., MCANANY and ATCHESON, JJ.
HILL, J.: In this appeal of the severance of their parental rights to their son, D.H.,
Jr., Mother and Father primarily claim that things were turning around for them and the
court jumped the gun and severed their rights prematurely. Father claims a deep
emotional bond with his son and that the evidence did not compel termination of his
rights at this point. Mother also raises claims of incompetent counsel at one of the initial
hearings where she stipulated that this child was in need of care. She also complains
about lack of sufficient notice to the Cherokee Indian Nation.
Our review reveals that the evidence in this record supports termination of their
parental rights, and we affirm the termination. While it is true that Mother's first counsel
was incompetent as she claims, he was soon replaced and the case went forward for a
long time where Mother had proper professional legal assistance. Her parental rights
were severed because of her continued use of methamphetamine, not because of the
2
misdeeds of her first lawyer. Under these circumstances, she has failed to show prejudice
to her case from the lawyer's deficient representation.
We do, however, remand the case to the district court for additional information to
be sent to the Cherokee Indian Nation to determine with certainty whether this is an
Indian child. The Indian Child Welfare Act and Kansas law require proper notices to be
sent to the Indian Nations. This means that when there is an inquiry from a Nation for
additional information, the law expects reasonable efforts by the State to supply that
information. We hold that this was not done here, and we remand the case to the district
court with directions.
Because of their separation, Mother and Father no longer speak with a common
voice. They are represented by separate counsel and pursue unique avenues for reversal
of the district court's decision. Even so, much of the evidence dealt with their common
roles as parents and we will review that evidence collectively. But where the arguments
take separate paths, we will address their issues separately.
The rules that control this case are well settled.
Our statutes that focus on children in need of care create a system where those
children in distress will receive the relief they need for their young lives as they are
unable to provide for themselves. The statutes provide help, supervision, and assistance
for their parents, who for many and various reasons, cannot or do not provide for their
children. Services in support of the family are provided, as needed, to the children and
their parents. Physical, medical, mental, and social evaluations of all members of a family
are frequently obtained. Classes and counseling are often available. All of these efforts
are expended primarily for the safety and well-being of the child, and when the child is
removed from the home, the efforts focus on reunification of the family.
3
Repairs to broken lives and families, however, can take time—even years. But the
law and our Supreme Court both recognize that the formative years for children are brief
and if parents cannot or will not make changes in their lives to accommodate the return of
their child, the district court will terminate their parental rights if it is in the best interests
of their child to do so.
A district court may terminate parental rights only after a child has been found to
be a child in need of care and the court finds by clear and convincing evidence that:
 the parent or parents are unfit and unable to care properly for a child;
 the conduct or condition that renders the parent unfit is unlikely to change
in the foreseeable future; and
 it is in the best interests of the child to terminate parental rights. See K.S.A.
2016 Supp. 38-2269(a) and (g)(1).
Various statutes set out the criteria a judge must consider when deciding
termination questions. When deciding unfitness of a parent, the court must consider a list
of factors in K.S.A. 2016 Supp. 38-2269(b) and any other factors the court deems
appropriate. When the child is not in the parents' physical custody—such as the case
here—the court must also consider four additional factors listed in K.S.A. 2016 Supp. 38-
2269(c). Proof of any one of these factors may establish grounds for termination of
parental rights. K.S.A. 2016 Supp. 38-2269(f). In deciding whether termination of
parental rights is in the best interests of the child, the court must give primary
consideration to the physical, mental, and emotional needs of the child. K.S.A. 2016
Supp. 38-2269(g)(1). The passage of time for improvement must be taken into account
because we deal with young, impressionable lives. These children in need of care, indeed,
are not children for long.
4
For our part, when we review a district court's termination of parental rights, the
law requires us to consider whether, after our review of all the evidence, viewed in the
light most favorable to the State, we are convinced that a rational factfinder could find it
highly probable, i.e. by clear and convincing evidence, that the parent's rights should be
terminated. In making this determination, this court does not weigh conflicting evidence,
pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286
Kan. 686, 705, 187 P.3d 594 (2008). We now briefly review the evidence of the problems
experienced by this family. More of the facts will be related later when we explain our
holding.
Drug usage dominated this family.
Life did not start well for this child. The day after D.H., Jr., was born in November
2012, the staff at the hospital reported to the Department for Children and Families that
Mother was using methamphetamine while she was pregnant with this child. When
services were offered to the family, they refused and the case was closed.
After that, life for this family was far from tranquil. In May 2013, the Department
received a report that Mother and Father were using drugs and the child was home alone.
They moved to Meade County and they bounced around from house to house. Crisis
followed crisis. They were in frequent contact with the police for domestic disturbances.
They admitted using methamphetamine. They were evicted. They fought with each other
with the child present. They moved in with a man and left their child with him without
telling him they were going or when or if they would return.
They experienced financial distress. Jill Burtzloff, the assigned social worker,
stated she was never able to verify whether the parents were employed. Neither Father
nor Mother held down a job during this time.
5
Serious legal complications arose in their lives. The State charged Mother and
Father with possession of drug paraphernalia. Later, the State filed an additional charge
against Father for domestic battery because he grabbed Mother around the neck during an
argument. Father pled no contest to disorderly conduct, and the court issued a no contact
order restraining him from Mother. With this background information we turn to these
legal proceedings.
This child in need of care case started when both parents were arrested for bond
violations in November 2014 and both tested positive for methamphetamine. Their bonds
were revoked. This meant incarceration for the pair. With both parents in jail and no
other place for D.H., Jr., to go, the State filed a petition to find him to be a child in need
of care. The court placed him in the Department's custody. He would never again reside
at his parents' home.
Some successes were followed by many failures for the parents.
Neither unexpectedly nor unreasonably, the juvenile court wanted both parents to
be drug free when they spent time with their child and ordered that they were to have a
clean drug screen before having any contact with their child. This proved to be a high
hurdle.
First, with no explanation in the record, the parents did not attend the case
planning conference. With a goal of reintegration of the family, the court adopted a case
plan that set out tasks for the parents, such as:
 refrain from the use of illegal drugs;
 obtain stable housing and employment;
 complete a domestic violence assessment;
 take parenting classes;
6
 seek a mental health intake; and
 participate in couples' therapy.
The court also expected the parents to follow all recommendations made in the various
assessments. The court placed the child with his paternal grandmother.
These tasks were beyond their reach. The next month, in December 2014, both
parents tested positive for methamphetamine. Later that month, at the adjudication
hearing, neither parent contested the State's allegations that their child was a child in need
of care. Mother alleges some misconduct of her court-appointed attorney at this hearing
that we will deal with when we address her issues on appeal.
The ups and downs of the parents' behaviors became manifest after this. On the
positive side, in January 2015, Mother and Father completed inpatient drug rehabilitation
programs. But later, in June 2015, Mother was unsuccessfully discharged from outpatient
treatment. Similarly, Father was also unsuccessful with outpatient treatment.
To their credit, Mother and Father had clean drug screens in February, March, and
April 2015. At this point, both parents had regular visits with their child during this time.
The parents completed a domestic violence assessment. Mother completed parenting
classes. These positives were followed by negatives.
In May 2015, for three consecutive weeks, the parents did not show up for drug
screens. At the next case plan conference held later that month, it was clear that Mother
and Father had not completed most of their assigned case plan tasks. The parents did not
provide pay stubs to verify employment. Mother said she was working at Applebee's and
Spencer Browns, and then temporarily at National Beef with Father. Father worked odd
jobs. Mother also said she was employed by caring for Glen Lucas, who was on
7
disability. The parents were ordered to pay child support but never did. The parents did
not complete any more case plan tasks from May to October 2015.
Apparently, their drug usage was sporadic but frequent because the parents were
drug free for their September drug test and had a visit with the child. But when both
parents tested positive for methamphetamine in late October, the Department changed the
case plan goal from reintegration to adoption. Despite the change of goal, on November
9, 2015, both parents had a visit with their child. After that, neither parent submitted to a
drug screen until February 2016. In March 2016, Father began cooperating with drug
screens again.
After the case plan goal changed, the State moved to terminate parental rights
since there had been no real efforts by either parent to correct their conduct or
circumstances in any significant way. When that motion was filed on April 1, 2016,
Mother began cooperating and promptly entered drug treatment in mid-April. But nothing
really improved.
Methamphetamine was their master. At Mother's diversion revocation hearing in
one of her criminal cases, she tested positive for methamphetamine. Mother had tested
positive for methamphetamine again at Stepping Stone Shelter on May 6, 2016. Headed
in a similar direction, in April 2016, Father had a revocation hearing in his criminal case
after he tested positive for methamphetamine. Meanwhile, contact with their child was
minimal. Father had a visit with him in March and again in April 2016. Mother had two
visits with him in May 2016.
Meanwhile, while his parents struggled unsuccessfully with their apparent drug
addiction, their child remained in the Department's custody. This child had been out of
his parents' house since November 3, 2014, with no overnight visits with the parents even
attempted. Cara Payton, a reintegration social worker, testified that the parents did not put
8
effort into completing the case plan. They went through cycles of drug use, domestic
violence, poverty, and homelessness. As the date of a court hearing approached, there
would be some cooperation from them. But after court, the cooperation fizzled out. The
parents did not make any changes necessary to break those cycles. Payton recommended
that the child be freed from their ties and prepared for adoption.
We note some additional facts that arose from the termination hearing.
Basically, the termination hearing evidence painted a sad picture of these parents.
The court took judicial notice of three worthless check cases filed against Mother in
Meade County and a charge of unlawful possession of controlled substances against
Mother in Seward County. The court also took judicial notice of a pending theft charge
against Father in Dodge City. The court also noted that Mother had her parental rights to
five other children severed in California.
Nonetheless, both parents claimed improvement in their circumstances. At the
time of the severance hearing, Mother was in drug treatment at the Women's Recovery
Center. Father testified that during the pendency of this case he did not have a driving
license, which hindered his employment. At the time of the hearing, he testified he was
employed and had a driving license. He was enrolled in Cimarron Basin outpatient
treatment. He leased a duplex and his brother owned a house that was set aside for him.
At the conclusion of the hearing, the court ruled that despite their good intentions,
the parents were unfit due to their drug addiction. The court found that it was in the best
interests of this child to "get someone to care for him that will provide a life for him."
The court terminated both parents' rights and directed the Department to place the child
for adoption. At this point, we look first at Father's issues and then turn to those raised by
Mother.
9
The evidence supports the court's termination of Father's parental rights.
To us, Father argues that at the time of the termination hearing he "had a reality
check" and he was getting ready to take responsibility for his life and setting the stage to
have his child reintegrated back into his life. Life had been difficult for him during this
period, and the State agencies did not help.
Actually, Father contends that it was the Department who failed to make
reasonable efforts to rehabilitate the family because it did not perform a walk-through of
his home or complete drug screens. In other words, it had not, as required by law,
extended reasonable efforts to help restore their relationship. Father argues he made
efforts to obtain employment and stay clean. But he offers no real explanation why these
alleged Department deficiencies prevented him from completing his case plan tasks. Nor
does he explain how these deficiencies kept him using drugs.
The fact of the matter is that Father's efforts to regain the custody of his son were
not sufficient. The testimony showed that Father tested positive for methamphetamine at
various times over the course of the proceedings. Father's inability to have overnight
visits with his son was not based on the Department's failures, but rather on his own
inability to stay drug-free for a time. Father simply did not show up for drug tests and
could not be reached by the Department. He failed to maintain steady employment and
failed to complete many of the other case plan tasks. This attempt to now place blame on
the Department for his failures underscores Father's fundamental inability to take
responsibility for making the necessary changes in his life to ensure his son's return.
In an attempt to make a claim about the emotional health of his son, Father
contends that he had a tight emotional bond with him. In making this claim, he refers to
Mother's testimony that the child loved Father and to his own testimony that he felt he
had an emotional bond with him. Father also refers us to testimony that both he and
10
Mother had a couple of months of good visits with the child and started having
unsupervised visits at the end of April or beginning of May 2015. He does not mention
his drug usage that followed those two months.
As support, Father cites this passage from In re K.R., 43 Kan. App. 2d 891, 904,
233 P.3d 746 (2010):
"The statutory requirement directs the court to give primary consideration to the
physical, mental, and emotional health of the children. In so doing, the court must weigh
the benefits of permanency for the children without the presence of their parent against
the continued presence of the parent and the attendant issues created for the children's
lives. In making such a determination we believe the court must consider the nature and
strength of the relationships between children and parent and the trauma that may be
caused to the children by termination, weighing these considerations against a further
delay in permanency for the children."
We have no quarrel with the quoted passage—in fact, it makes good sense.
But that case is far different than this. We note that in In re K.R., there was no
allegation of addiction or abuse and the guardian ad litem "vigorously" advocated against
the termination of the mother's parental rights because of the mother's relationship with
the children and the children's desire to be with their mother. The K.R. panel found the
best interests of the children were not served by termination of their mother's parental
rights. 43 Kan. App. 2d at 904-05. To the contrary, here, the guardian ad litem concurred
with the State's motion to terminate parental rights. Father's self-serving statement that he
had a bond with his son is not conclusive evidence of that bond. Nor does his claim
persuade us that it overcomes in some way the evidence of the long periods in this child's
young life where Father had no contact with him. A parent's role is to protect, cherish,
comfort, support, guide, nurture, and help—this record reveals that Father has failed, for
whatever reason, to fulfill this role.
11
Our review of the record revealed that both parents had addiction issues that
continuously prevented them from seeing their child. The unsupervised visits that began
at the end of April or beginning of May 2015 were short-lived and not even overnight.
Despite Father's ability to have good visits when he was clean and sober, Father did not
stay that way for long. We reiterate, in May 2015, the parents did not show up for drug
screens for three consecutive weeks. In June 2015, the visits were stopped. Two years
with no overnight visits is a long time for one so young.
The child was very young when removed from the parents' home. At this point, the
child has spent more time out of Father's home than in his home. Father has made
insufficient efforts to change his circumstances to make room for his child. Despite his
claims of a close bond with the child, his continued drug usage, which prevented his
contact with the child, was clearly not the fault of the social service agencies involved.
When we view this evidence in the light most favorable to the State, as the law requires,
we are convinced that a rational factfinder could find by clear and convincing evidence
that Father was unfit and it is in the best interests of the child to terminate his parental
rights. We turn now to issues raised by Mother.
The evidence supports termination of Mother's parental rights.
Arguing that she made key changes to her life prior to the termination hearing,
Mother contends that the court improperly concluded that her conduct was unlikely to
change in the foreseeable future. After all, on her own initiative, just before the
termination hearing, Mother entered into a women's recovery program and stayed clean
and sober while there. Also, Mother no longer had contact with Father, who was a bad
influence; and she had obtained stable housing in Garden City.
Our review of the record reveals a remarkably similar pattern of drug addiction,
lack of change of circumstances, and disinterest in this child by Mother as well as Father.
12
The court's journal entry illustrates that pattern, where the court found Mother and Father
were unfit and the conduct or condition that rendered the parents unfit was unlikely to
change in the foreseeable future. The record supports that finding. The court ruled that
despite their good intentions, their addiction rendered them unable to adjust their
circumstances toward reintegration. The court found a high risk that Mother would be in
jail for a long period of time because of crimes she was charged with.
In our review, we note that one of the social workers testified that the parents did
not put effort into completing the case plan. They went through cycles of drug use,
domestic violence, poverty, and homelessness. Then it would get to a court hearing and
there would be some cooperation. But after court, the cooperation fizzled out. The parents
did not make changes to break those cycles. The termination hearing was no different.
The court found two statutory factors created a presumption that Mother was unfit:
 K.S.A. 2016 Supp. 38-2271(a)(1)—A parent has previously been found to
be an unfit parent under comparable proceedings under the laws of another
jurisdiction;
 K.S.A. 2016 Supp. 38-2271(a)(3)—On two or more prior occasions a child
in the physical custody of the parent has been adjudicated a child in need of care.
These presumptions must not be ignored. The statute, K.S.A. 2016 Supp. 38-
2271(b), dealing with the burden of proof when a presumption of unfitness is presented to
the court, states clearly that the burden of proof is on the parent to rebut the presumptions
of unfitness by a preponderance of the evidence. We find no evidence in the record
presented by Mother to rebut either of these presumptions.
Looking at this evidence in the light most favorable to the State, as the law
requires, we hold the evidence in this record is clear and convincing that Mother is unfit
13
by reason of conduct or condition which renders her unable to care properly for this child
and her conduct is unlikely to change in the foreseeable future. Additionally, the record
supports the court's finding that this termination is in the best interests of this child.
We examine Mother's claims about her first court-appointed lawyer.
Three attorneys have represented Mother at various times in this proceeding—two
court-appointed and one retained. Initially, Dan Arkell-Roca represented Mother.
According to the proffered testimony at the district court's hearing on this matter, Arkell-
Roca obtained Mother's signature on her no-contest statement to the State's child in need
of care petition by folding over the paper in such a way that she could only see the
signature line. She was not able to view the rest of the document. Arkell-Roca told
Mother that she needed to sign the document if she wanted to get her child back and she
did not need to worry about what it said. She signed the statement without reading it and
not knowing what it said. Arkell-Roca also advised Mother that she should not pursue the
issue of whether there was native parentage of her son because the tribe would come and
"take her child away."
There is no record of the adjudication hearing where both parents stipulated that
their child was in need of care. The record does reflect that about 6 months later—in June
2015, the parents asked that Arkell-Roca be removed since they had retained Derek
Miller who appeared in the case for both parents. When the parents separated Miller
withdrew and the court appointed Jaskamal Dhillon to represent Mother at the
termination hearing.
The Kansas Supreme Court disbarred Arkell-Roca from the practice of law in
Kansas on July 7, 2016. See In re Arkell, 304 Kan. 754, 377 P.3d 414 (2016).
14
When it addressed this issue, the district court found that Arkell-Roca's
representation was by definition below the standard of representation expected of an
attorney and, as such, would ordinarily call for reversal. But three reasons convinced the
court that the poor representation did not prejudice Mother's case:
 Arkell-Roca's inadequate performance did not change the outcome of the
case. Evidence of Mother's continued use of methamphetamine would certainly
have been presented at any adjudication hearing and that, alone, would
independently justify a finding that the child was in need of care.
 Arkell-Roca's deficient performance was cured by his removal and
Mother's representation by Derek Miller, and then Jaskamal Dhillon. Dhillon
represented Mother at the time of the termination hearing.
 At the termination hearing, clear and convincing evidence proved the
parents were unfit.
We find the court's reasoning persuasive, but first we must review the applicable law.
The law is clear—in order to prevail on a claim of ineffective assistance of
counsel, the party alleging ineffective assistance must establish that the performance of
counsel was deficient and the party was prejudiced by the ineffective assistance. This
means that there is a reasonable probability a different result would have been achieved
in the absence of the deficient performance. See State v. Sprague, 303 Kan. 418, 426, 362
P.3d 828 (2015); Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014).
Mother does not dispute the court's finding that no prejudice resulted. Instead, in
her attack on this ruling, Mother contends that she need not prove prejudice because her
no-contest statement was procured by "outright fraud." With such an action, prejudice
must be presumed. For support, Mother cites a criminal case, State v. Carter, 270 Kan.
426, 14 P.3d 1138 (2000), where the client received incompetent legal assistance.
15
In Carter, a defendant was charged with premediated first-degree murder. Against
the defendant's strong objections, defense counsel pursued a strategy of directing the jury
toward a felony-murder conviction rather than a premediated first-degree murder
conviction. Defense counsel presented no evidence. Counsel essentially argued that the
defendant was guilty of killing the victim but that there was no premeditation.
Meanwhile, the defendant maintained his innocence. The court held:
"Under the facts of this case, defense counsel's imposing a guilt-based defense against
defendant's wishes violated defendant's fundamental right to enter a plea of not guilty and
deprived the defendant of effective assistance of counsel that was prejudicial per se; thus
no showing that the outcome of the trial would have been different absent defense
counsel's conduct was required." 270 Kan. 426, Syl. ¶ 4.
Carter is based on the so-called Cronic exception. In Cronic-type cases where an
attorney's performance completely denied the defendant assistance of counsel or denied it
at a critical stage of the proceedings, the court may presume prejudice. See Sola-Morales,
300 Kan. at 883 (citing United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039,
80 L. Ed. 2d 657 [1984]). With such a complete denial of competent legal assistance,
nothing else need be proved. But application of the Cronic exception is rare.
Turning from criminal cases to cases involving juveniles, the court's expectations
for competent legal assistance are similar. Simply put, parents are entitled to effective
assistance of counsel during a termination of parental rights hearing. The standards used
in context of the Sixth Amendment to the United States Constitution apply. In re
Rushing, 9 Kan. App. 2d 541, 545, 684 P.2d 445 (1984). In Rushing, the court did apply
the Cronic exception to the parental severance case because the father's attorney left the
courtroom "mid-trial" and was not present during much of the evidentiary hearing, the
evidence of father's unfitness was "marginal at best," and the attorney made no argument
to the trial judge concerning the sufficiency of the evidence. 9 Kan. App. 2d at 547.
16
We do, however, question the continued value of the holding in Carter because of
doubts created in Edgar v. State, 294 Kan. 828, 841-42, 283 P.3d 152 (2012). In Edgar,
our Supreme Court cited two United States Supreme Court cases that declined to apply
the older Cronic exception. 294 Kan. at 842. Clearly, the court could have automatically
reversed based on Cronic and refused to do so.
Here, Mother asks us to apply the Cronic exception to a child in need of care
determination in which counsel pursued a "no contest" strategy without consulting
Mother. Because of this, in her view, Mother was denied effective assistance of counsel
at a critical stage. We have no doubt that Arkell-Roca's conduct was well below the
permissible conduct for attorneys. Certainly, there is no excuse for the attorney's actions.
But that misconduct occurred very early in these proceedings. Therefore, in our
view, it was possible to perform a prejudice analysis, as the court did here to see if
outright reversal is called for. Arkell-Roca was dismissed from this case well before the
State sought termination of Mother's parental rights. Months of case plan hearings,
review hearings, and visits occurred before the issue of termination even arose. Mother
subjected the State's case to meaningful adversarial testing during the termination
hearing. Clearly, Mother has not claimed she was innocent as Carter claimed because she
never denied that she tested positive for methamphetamine on several occasions. We see
no reason to follow the Cronic ruling and instead consider all of the circumstances of this
case. After all, we are involved in a question of what is in the best interests of this child.
The district court properly ruled that Mother failed to show prejudice due to her
ineffective attorney at such an early stage of this proceeding.
17
We are troubled by the lack of response to a request for information from the Cherokee
Nation.
Early on in these proceedings, D.H., Jr.'s paternal grandmother stated in an
affidavit that the boy was eligible for membership with an Indian tribe. Accordingly, the
State sent notice to the Cherokee Nation. The Cherokee Nation responded:
"Cherokee Nation Indian Child Welfare has examined the tribal records regarding the
above named child/children and none of the names provided can be found as current
enrolled members.
"The child/children does not meet the definition of 'Indian child' in relation to the
Cherokee Nation as stated in the Federal Indian Child Welfare Act, 25 U.S.C. §
1903(4). Therefore, the Cherokee Nation does not have legal standing to intervene
based on the information exactly as provided by you. Any incorrect or omitted
information could invalidate this determination.
****************************
"Because 'ENROLLED TRIBAL MEMBER' and 'ELIGIBLE FOR ENROLLMENT' are
different, a conclusive finding of 'eligible for enrollment' requires the full names, to
include maiden names, and dates of birth for the direct biological lineage linking the
child to an enrolled member of the tribe. It is impossible for Cherokee Nation to confirm
or deny a claim of 'eligible for enrollment' without this information.
"If you wish to send additional information, please respond in writing with the additional
lineage . . . ."
Importantly, the dates of birth of D.H., Jr., Mother, and Father were listed at the top of
the letter but the paternal grandmother's birth date was listed as "????????" The State
took no further steps in regards to the Indian Child Welfare Act after receipt of this letter.
18
On appeal, Mother contends that the State's notice to the Nation of the Act omitted
important information—the maiden name, birthdate, and direct lineage of the paternal
grandmother. In reply, the State argues "that it was not necessary to provide any further
notice or information to the Cherokee Nation as there was not any further information to
be had and the tribe had indicated that the State had complied with the notice
requirements of ICWA."
Obviously, the application of and compliance with the Act are questions of law
over which we exercise unlimited review. In re A.J.S., 288 Kan. 429, 431, 204 P.3d 543
(2009).
It is important to recognize that Indian children are in a special category when it
comes to juvenile proceedings. In Kansas, a child in need of care proceeding is generally
governed by the Revised Kansas Code for Care of Children, K.S.A. 2016 Supp. 38-2201
et seq., "'except in those instances when the court knows or has reason to know that an
Indian child is involved in the proceeding, in which case, the Indian child welfare act of
1978, 25 U.S.C. § 1901 et seq., applies.'" In re M.F., 290 Kan. 142, 148-49, 225 P.3d
1177 (2010) (quoting K.S.A. 2008 Supp. 38-2203(a). An "'Indian child' means any
unmarried person who is under age eighteen and either (a) a member of an Indian tribe or
(b) is eligible for membership in an Indian tribe and is the biological child of a member
of an Indian tribe." 25 U.S.C. § 1903(4) (2012). The question of jurisdiction arises.
Tribal courts have exclusive jurisdiction over proceedings involving children
residing on or domiciled within a reservation and concurrent jurisdiction with state courts
over foster care or termination of parental rights proceedings involving children not
domiciled on a reservation. See In re M.F., 290 Kan. at 149 (citing 25 U.S.C. § 1911[a]
[2006]).
19
Before an Indian parent's rights to an Indian child may be terminated, two steps
must be taken by the trial court:
 the clear and convincing evidence standard set forth in state law must be
proven;
 then the evidence must establish beyond a reasonable doubt that
termination is required. In re S.M.H., 33 Kan. App. 2d 424, 431, 103 P.3d
976, rev. denied 279 Kan. 1006 (2005).
If the evidence suggests the court is dealing with an Indian child, as with the
grandmother's affidavit here, the court must consider the child to be an Indian child until
the tribe advises otherwise. The Bureau of Indian Affairs Guidelines, in effect at the time
of the termination of parental rights here, control here. They state, "If there is any reason
to believe the child is an Indian child, the agency and State court must treat the child as
an Indian child, unless and until it is determined that the child is not a member or is not
eligible for membership in an Indian tribe." BIA Guidelines for State Courts and
Agencies in Indian Child Custody Proceedings, 80 FR 10146, Section A.3(d) (February
25, 2015).
Notice to the tribe is mandatory under the Act
"where the court knows or has reason to know that an Indian child is involved, the party
seeking the foster care placement of, or termination of parental rights to, an Indian child
shall notify . . . the Indian child's tribe, by registered mail with return receipt requested, of
the pending proceedings and of their right of intervention." 25 U.S.C. § 1912(a) (2012).
The notice shall include the following information, if known:
"(1) Name of the Indian child, the child's birthdate and birthplace.
"(2) Name of Indian tribe(s) in which the child is enrolled or may be eligible for
enrollment.
20
"(3) All names known, and current and former addresses of the Indian child's
biological mother, biological father, maternal and paternal grandparents and great
grandparents or Indian custodians, including maiden, married and former names or
aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other
identifying information.
"(4) A copy of the petition, complaint or other document by which the
proceeding was initiated." 25 C.F.R. § 23.11 (d) (2014).
Thus, according to the regulation, the State had to provide the paternal grandmother's
maiden name and birthdate "if known."
Regarding the notification requirements, the BIA Guidelines state that "[t]he
notice requirement includes providing responses to requests for additional information,
where available, in the event that a tribe indicates that such information is necessary to
determine whether a child is an Indian child." BIA Guidelines, Section B.6(l).
Our research has disclosed that other states have considered similar issues and
held that furnishing additional information is mandatory. When a Texas appellate court
found that the notices provided to an Indian tribe were deficient, it remanded the case so
that notice could be sent in compliance with the Act. In re R.R., Jr., 294 S.W.3d 213, 237
(Tex. App. 2009). Additionally, the California appellate courts have addressed the issue
and stated that "[w]hen the notice contains insufficient information, it is effectively
meaningless . . . because the failure to give proper notice forecloses participation by
interested Indian tribes . . . ." In re Ethan M., No. F053868, 2008 WL 683601, at *4 (Cal.
App. 2008) (unpublished opinion). We find that reasoning cogent and persuasive. What is
true in California is true in Kansas.
Here, there is no indication the State knew the grandmother's birthdate and maiden
name, even though the child lived with grandmother after she was approved for
placement. The State admits in its brief that it took no action to obtain the information
21
after receiving the Cherokee Nation letter. Thus, we cannot reasonably say that the
information was unavailable here. In our view, the letter from the Cherokee Nation can
be treated as a request for more information. There were eight question marks in place of
the grandmother's date of birth, indicating this information was needed.
Simply put, the Cherokee Nation letter does not provide a definitive answer to
whether D.H., Jr., was eligible for enrollment in the Cherokee Nation. And, according to
the guidelines, "the agency and State court must treat the child as an Indian child, unless
and until it is determined that the child is not a member or is not eligible for membership
in an Indian tribe." BIA Guidelines, Section A.3(d). The court must consider this child to
be an Indian child until the Cherokee Nation rules that he is not.
Finally, unique to this case, we must point out that even if we do not require the
State to provide additional information to the tribe, Mother has a strong argument for
remand because her attorney, since disbarred, advised her not to pursue a notice to the
Nation under the Act.
Conclusion
There is sufficient evidence, in quantity and quality, to support a finding that both
parents are unfit and it is in the best interests of the child to terminate their parental
rights. We remand this matter to the district court to determine, after proper notice to the
Cherokee Nation, if this child is, according to the Nation, an Indian child. If the district
court finds, based on proper evidence, that this child is not an Indian child, then the
termination of the parents' rights need not be set aside. In that instance, the district court
can simply find that the Act does not apply and reaffirm its prior decision terminating
parental rights. But if this child is an Indian child, then the district court is directed to set
aside the termination of parental rights and all further proceedings shall be governed by
the provisions of the Act.
22
Affirmed in part and remanded with directions.
23