In re E.L. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,590
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of E.L.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KELLIE HOGAN, judge. Opinion filed November 24, 2021.
Affirmed.
Grant A. Brazill, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, for appellant
natural father.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before GREEN, P.J., CLINE, J., and BURGESS, S.J.
PER CURIAM: E.L. was taken from her parents shortly after birth, based mainly on
evidence of significant physical abuse of E.L.'s older sibling, D.L. Father challenges the
sufficiency of the evidence in support of the district court's determination under the
Indian Child Welfare Act (ICWA) that the State made active efforts to prevent the
breakup of the Indian family. He also claims the court should have excluded the State's
expert witness from the termination hearing since the State did not provide an expert
witness disclosure under K.S.A. 2020 Supp. 60-226(b)(6). We find clear and convincing
evidence supports the district court's termination of parental rights and that there was
evidence beyond a reasonable doubt (supported by a qualified expert) that the continued
custody of E.L. by the parents was likely to result in serious emotional or physical
damage to E.L. (as required by ICWA). We also find Father has not established the State
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had to disclose its expert because he failed to show K.S.A. 2020 Supp. 60-226 applied in
this matter. We affirm the district court's judgment.
FACTS
On October 21, 2019, officers were dispatched to Saint Joseph Hospital in
Wichita, Kansas, for a welfare check of a newborn baby, E.L. When they arrived, a
hospital social worker reported that multiple nurses and doctors had complained Mother
was not following their instructions on how to properly care for E.L. Nursing staff had to
educate the teenage parents multiple times on how to hold E.L. and on safe sleep, out of
concern the parents were not supporting E.L.'s head and were laying E.L. in ways that
were obstructing E.L.'s airway. Nursing staff also twice counseled Mother about
overfeeding E.L. Mother resisted their advice and instructions. Upon contacting the
Kansas Department for Children and Families (DCF), the hospital social worker learned
both parents had pending criminal charges for aggravated child endangerment for another
child, D.L. The parents lost custody of D.L. about a year before, after his admittance to
the hospital at five months old with multiple fractures.
Upon being contacted regarding E.L., a DCF social worker, Marisa Thorne,
interviewed the parents at the hospital. When Thorne asked about D.L.'s case, they denied
knowing how D.L. was injured and even denied that he sustained any injury at all. They
both accused the hospital of mixing up D.L.'s x-rays because they claimed the date of
birth they had seen on the x-rays was incorrect.
Initiation of CINC proceedings
After the State initiated child in need of care (CINC) proceedings, the district court
placed E.L. in the temporary custody of DCF and ordered DCF or its designee to prepare
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a case plan. The court also found ICWA applied, since Mother is an enrolled member of
the Citizen Potawatomi Nation (the Tribe).
On November 21, 2019, both parents received the same case plan from DCF's
designee, Saint Francis Ministries (SFM). The plan required each parent to complete the
following: (1) sign all necessary releases for SFM; (2) obtain and maintain appropriate
housing; (3) obtain and maintain full-time employment and provide documentation to
SFM; (4) abstain from the use of illegal drugs, alcohol, and any prescription medication
without a valid prescription throughout the duration of the case; (5) complete a substance
abuse evaluation and follow all recommendations; (6) submit to random urinalysis (UA)
and hair follicle testing; (7) complete a series of domestic violence classes; (8) complete a
WASAC protective parenting class; and (9) complete a clinical assessment and follow
any resulting recommendations.
At the November 25, 2019 adjudication hearing, the district court granted the
Tribe's motion to intervene. Upon the State's request, the court placed E.L. in an Indian
home, which the Tribe selected and where E.L.'s sibling, D.L., was located. Since the
Tribe-approved home was in Oklahoma, the Tribe agreed to transport E.L. to Wichita for
weekly visits with the parents. An evidentiary adjudication hearing was set for
February 26, 2020.
Relying mainly on D.L.'s injuries, the State moved to terminate the parental rights
of both parents a few weeks later, based on:
• K.S.A. 2020 Supp. 38-2269(b)(2)—conduct toward a child of a physically,
emotionally, or sexually cruel or abusive nature;
• K.S.A. 2020 Supp. 38-2269(b)(4)—physical, mental, or emotional abuse or
neglect or sexual abuse of a child;
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• K.S.A. 2020 Supp. 38-2269(b)(6)—unexplained injury or death of another child or
stepchild of the parent or any child in the care of the parent at the time of injury or
death; and
• K.S.A. 2020 Supp. 38-2269(b)(8)—lack of effort on the part of the parent to adjust
the parent's circumstances, conduct, or conditions to meet the needs of the child.
At the February 26, 2020 adjudication hearing, the district court found E.L. to be a
child in need of care and scheduled a hearing on the termination of parental rights. In the
meantime, it adopted the case plan as orders of the court and ordered that visitation be at
the discretion of DCF or DCF's designee.
Visitation issues
On March 17, 2020, the Tribe notified SFM that it had issued an out-of-state travel
ban because of the COVID-19 pandemic, so it could no longer transport E.L. for weekly
visits to Kansas. The Tribe offered to reimburse the parents for their travel costs if they
would be willing to travel to Oklahoma for in-person visits. The Tribe understood that
while neither parent had a vehicle, Mother's parents had one.
The parents did not travel to Oklahoma for visitation, so SFM set up weekly
virtual visits with E.L. The virtual visits were SFM's idea. SFM personnel contacted the
Tribe at least monthly, and sometimes multiple times per month, to ask about the travel
ban and the Tribe's ability to transport E.L. for in-person visits. The Tribe lessened its
travel restrictions on September 2, 2020, but it was only able to transport E.L. for in-
person visits once per month because of a staff shortage. The Tribe offered to arrange for
additional in-person visitation at another tribe's facility in Tonkawa, Oklahoma, to
minimize the parents' drive, but the parents were unable to take advantage of this offer.
SFM arranged for the virtual visits to continue, so the parents then had one in-person and
three virtual visits each month.
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Termination hearing
The district court held a termination hearing for both parents on October 26
and 27, 2020. The State presented testimony from several witnesses, including two law
enforcement officers and a physician involved in D.L.'s case, along with social workers
involved in E.L.'s case from the Tribe, DCF (Thorne), and SFM. Father testified and
called another SFM social worker to testify on his behalf. Mother testified and called her
juvenile case worker to testify on her behalf.
1. D.L.'s injuries
Dr. Kerri Weeks, a child abuse pediatrician who has been involved in the child-at-
risk evaluation team for over 10 years, testified about her consultation on D.L.'s injuries.
She said D.L. was five months old when the parents brought him to the hospital on
September 11, 2018, for right leg pain. The parents provided no history of trauma, and he
had visible bruising. The parents reported D.L. had just rolled over for the first time the
prior week.
During D.L.'s examination, hospital staff discovered several injuries: (1) a recent
right femur fracture, (2) a skull fracture of undetermined age, (3) an older proximal right
radius fracture that was healing, and (4) two rib fractures. Dr. Weeks explained that any
fracture in a nonmobile infant like D.L. is concerning because, at that age and stage of
development, they are unable to injure themselves. She also indicated that there should be
an adequate history explaining the injury.
Dr. Weeks believed D.L.'s femur fracture was an abusive injury. She dismissed
Mother's later explanation that D.L.'s foot had been caught in his crib slats as a possible
cause. While she believed the skull fracture was the only injury that could have
potentially been accidental, in the context of the many other abusive injuries, she
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believed it was also an abusive injury. She testified the pattern of bruises in the soft part
of D.L.'s cheek is a common pattern in young infants with abuse, and rib fractures are
also highly associated with infant shaking and abusive head trauma. The combination of
skull and rib fractures also evidenced abuse since these injuries are seen together in
abusive head trauma. She explained how the x-rays revealed the fractures happened at
different times, since the right radius and rib fractures showed signs of healing. The
different time frames for the fractures led her to believe the abuse was ongoing.
Dr. Weeks described the necessity for a follow-up consultation in two weeks for
young children suffering from suspected abuse, to look for more fractures which may
have been difficult to see on the initial visit. D.L.'s follow-up consultation revealed two
more fractures, one in his right ulna and one in his left humerus. She confirmed these two
fractured arms also suggested abuse in a five-month-old child. In her opinion, D.L. was
physically abused several times. Dr. Weeks testified she believed if D.L. was returned to
the parents, he would end up dead since the abuse was progressing. She said she would
be "very hesitant to put a child in an environment where this type of abuse has occurred."
2. Investigation of D.L.'s injuries
Jessica Helwi, a patrol officer with the Wichita Police Department, and LaTavia
Allen, a detective from that department's exploited and missing child's unit, each testified
about being called to the hospital on September 11, 2018, to investigate suspected abuse
of D.L. Helwi discussed the doctor's report that D.L.'s diaper had not been changed for
about 12 hours when the parents brought him. She mentioned a doctor observed Mother
handling D.L. roughly, so the doctor and nurses stepped in to oversee Mother and ensure
D.L. was not further harmed. She also recounted how the hospital staff first thought D.L.
was very dirty, but later discovered he had bruises on his face and hands.
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Helwi and Allen were only able to interview Mother about what happened to D.L.
since Father left when he learned the police had been called because he had active arrest
warrants for other matters.
Mother first denied knowing what happened to D.L., but then later said he had
recently gotten his leg stuck in between the crib slats. When Helwi asked Mother about
his other injuries, Mother told her she believed D.L. might be anemic or have a bone
disease, which caused him to bruise easily.
Allen had Mother go through a timeline, recalling all the events in the four days
before D.L.'s hospital admission. Apart from Mother telling Allen that her own mother
played with D.L. for about an hour the day before, Mother never mentioned that anyone
other than herself and Father were around D.L. during this time.
Allen interviewed Mother again a few days later, after learning the extent of D.L.'s
injuries. Mother told Allen that Father sometimes threw D.L. in the air and caught him,
which could be a source for some of D.L.'s injuries. Mother also suggested some of the
fractures could have occurred after D.L. slid out of the swing in which they sometimes
put him to sleep. Mother told her D.L. woke up at 5 a.m. screaming on the floor three
days ago because he had slid down out of the swing onto the floor. Mother told Allen that
D.L. had fallen out of the swing several times. Mother had no explanation for why both
of D.L.'s arms were fractured. When Allen inspected Mother's home, the swing looked
like it had not been used recently because there were clothes and water bottles inside it.
She measured the space between the crib slats and discovered it was only two inches.
3. Reintegration efforts
Thorne, the DCF permanency specialist assigned to the intake of E.L.'s case, also
testified. She explained how the hospital staff notified her of their concerns about the
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parents' care for E.L. and the parents' refusal to take direction from the hospital staff. She
also discussed how the parents denied to her that D.L. was even hurt and downplayed the
criminal and CINC investigation into D.L. Thorne testified she was concerned about
sending E.L. home with the parents since both parents had substantiations for physical
abuse on their son.
Tracey Humphrey, a qualified expert witness under ICWA and the Tribe's Indian
Child Welfare case manager assigned to E.L.'s case, testified about the parents' visitation
with E.L. She discussed the Tribe's travel ban and SFM's initiation of virtual visits during
the ban. She also testified she would not be comfortable returning E.L. to the parents'
custody. She believed SFM had made active but unsuccessful efforts to rehabilitate and
prevent the breakup of the Indian family. She testified the parents had not changed their
behavior or worked their services, including refusing to undergo drug tests and to allow
SFM into the home. She said she would be concerned for E.L.'s safety if E.L. was
returned to Mother and Father. In her opinion, continued custody with the parents would
likely result in serious physical harm to E.L. She also testified she did not believe
allowing the parents more time would be helpful, since they were unwilling to take
advantage of the services offered to them. When asked, Humphrey admitted she was
unaware of any additional services SFM could have offered to the parents that might have
helped them succeed. She supported the State's motion to terminate both parents' parental
rights to E.L. and believed termination would be in E.L.'s best interests.
Lavana Faine, the SFM case manager assigned to E.L.'s case, also testified about
the parents' visitation with E.L. She said SFM staff asked Humphrey all the time when
the Tribe's out-of-state travel ban would be over and when the parents' in-person visits
could resume. She testified that if SFM had not recommended the video visits, then the
parents would have only seen E.L. once a month.
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Faine testified Father did not complete the court-ordered clinical evaluation or
participate in individual therapy. Although he told her he completed a psychological
evaluation in his criminal case, he never gave her a copy of the documentation for that
evaluation. Faine reported that Father told her he was employed but never provided proof
of employment. She also reported that he advised her he completed anger management
classes, and she again requested documentation.
Father's last three hair follicle tests in February, June, and September 2020 were
positive for methamphetamine. In fact, Faine testified Father never had a negative hair
follicle test. Faine acknowledged Father had had some negative UA tests, in April, July,
and September 2020. He failed to submit UAs on May 13, June 10, and June 23, 2020.
She told Father he needed to undergo a substance abuse evaluation after he refused to
undergo a hair follicle test in January. She continued to tell him during their monthly
meetings that he needed this evaluation to reintegrate with E.L., but he never completed
one. When Father speculated about the unavailability of in-person substance abuse
evaluations considering the COVID-19 pandemic, Faine reminded him she had told him
before that he could complete the evaluation by telephone. Faine reported Father told her
he believed his hair products caused his multiple positive hair follicle tests.
Faine testified she would not be comfortable returning E.L. to the parents, based
on: (1) the seriousness of D.L.'s injuries, (2) the parents' failure to take responsibility for
those injuries, (3) Mother's failure to engage in the recommended therapy, (4) both
parents' positive drug tests, (5) Father's failure to engage in substance abuse evaluation or
treatment, and (6) the lack of adequate housing. She said she did not believe the parents
were likely to change in the foreseeable future since, from the beginning, they told her
they were not going to comply with all the court orders. She testified she believed it was
in E.L.'s best interests to permanently remain with D.L. and the foster parents with whom
E.L. had bonded. She discussed the concept of "child time," meaning children perceive
time differently than adults. She noted E.L. had been in DCF custody since she was four
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days old and was thriving with her foster parents and brother. Faine testified she
supported the State's motion to terminate parental rights.
Father called Deanna Denson, a SFM social worker who scheduled and supervised
visitations in E.L.'s case, to testify in his defense. Denson testified about SFM's efforts to
communicate with the Tribe to ask about ending the travel ban and resuming in-person
visits. Denson admitted that, in the beginning, the foster mother could be distracting
during the virtual visits by playing with E.L. But she addressed the issue with the foster
mother, which led to the foster father supervising the visits instead. Denson stated the
visits supervised by the foster father proceeded without issue for a while. Once the
parents informed her otherwise, she supervised the visits herself.
Mother presented testimony from Misty Jimison, her home-based supervision
officer in her separate, juvenile offender case. Jimison testified Mother was compliant in
her juvenile offender case, doing everything Jimison asked her to do.
4. Testimony from Father
When Father testified, he was asked why he lost custody of both D.L. and E.L. He
denied knowing why he had lost custody. He also said he believed that, other than the
right leg injury, D.L.'s other injuries were caused either when Mother was pregnant or
during birth. He said, "[T]here's a bunch of lies going around" about the nature and extent
of D.L.'s injuries. Father testified his criminal case related to D.L. was over. He reported
taking an "Alford plea" to the aggravated battery charge in that case.
Father admitted he had three positive hair follicle tests for methamphetamine, but
he blamed the test results on his hair products. Father testified he has never used
methamphetamine in his life. Father agreed Faine's requests that he obtain a substance
abuse evaluation and undergo treatment were reasonable. He did not comply with her
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requests because he did not think treatment would help. He said, based on his experience,
he would only have to undergo UAs in treatment, and he claimed he could pass UAs. He
testified he believed his hair follicle tests would continue to come back "dirty," based on
his hair products, so he thought treatment would be pointless.
5. District court's ruling
At the end of the hearing, the district court ultimately found both parents to be
unfit under K.S.A. 2020 Supp. 38-2269(b)(2) (abusive conduct toward a child), (b)(4)
(physical abuse or neglect of a child), and (b)(6) (unexplained injury of another child of
the parent). The court also found the evidence of unfitness was unlikely to change in the
foreseeable future, explaining, "[B]ecause here we are one year later, and we are no
closer to being able to reintegrate this child than we were on the day that the child came
into custody." The court noted its duty to consider child time and explained:
"[E.L.] has spent 100 percent of her life in foster care, and there's just no evidence that
the Court could rely on to believe that anything will be different in three or six months or
even a year. We have had one year and we are just no closer than where we were."
The district court found it to be in E.L.'s best interests to terminate the parental rights of
both parents.
Additionally, under ICWA, the district court found: (1) reasonable and active
efforts were made to prevent the breakup of the Indian family and those efforts did not
succeed and (2) there was evidence beyond a reasonable doubt (and supported by a
qualified expert) that the continued custody of E.L. by the parents was likely to result in
serious emotional or physical damage to E.L.
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ANALYSIS
Father has not appealed the termination of his parental rights under Kansas law,
nor has he appealed the district court's ICWA finding that continued custody was likely
to result in serious emotional or physical damage to E.L. He only challenges the
sufficiency of the evidence supporting the court's ICWA finding that the State made
active efforts at reunification. He also raises an evidentiary challenge to Dr. Weeks'
testimony, claiming the State should have disclosed Dr. Weeks as an expert witness
under K.S.A. 2020 Supp. 60-226. We do not find his arguments to be persuasive. We find
the evidence sufficiently supports the court's active efforts finding and, under the facts of
this case, the State did not have to disclose Dr. Weeks under the revised Kansas Code for
Care of Children (KCCC). See K.S.A. 2020 Supp. 38-2245.
Termination of parental rights under ICWA
A parent has a constitutionally protected liberty interest in the relationship with his
or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Under
Kansas law, the termination of parental rights is governed by K.S.A. 2020 Supp. 38-
2266. But when the child is an Indian child, ICWA also applies. See In re L.M.B., 54
Kan. App. 2d 285, 297-98, 398 P.3d 207 (2017); In re H.A.M., 25 Kan. App. 2d 289,
295-96, 961 P.2d 716 (1998). Kansas courts have adopted a two-step approach for
termination of parental rights cases involving an Indian child: (1) first, applying the state
law test for terminating parental rights set forth in K.S.A. 2020 Supp. 38-2269 and (2)
second, applying ICWA standards. See In re L.M.B., 54 Kan. App. 2d at 297-98; In re
H.A.M., 25 Kan. App. 2d at 295-96. But when a parent only challenges the sufficiency of
the evidence under ICWA on appeal, as is the case here, we need not address the
sufficiency of the evidence under Kansas law. See In re L.M.B., 54 Kan. App. 2d at 298.
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ICWA: active efforts requirement
To terminate parental rights to an Indian child, ICWA requires: (1) under the
Indian Child Welfare Act, 25 U.S.C. § 1912(f) (2018), "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"; and (2) under 25 U.S.C. § 1912(d),
that the party seeking termination of parental rights to the Indian child under State law
"satisf[ies] 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." ICWA does not elaborate on these requirements.
That said, there are now binding federal regulations for state courts to follow in Indian
child-custody proceedings that interpret these ICWA requirements. See 81 Fed. Reg.
38,778 (June 14, 2016); see 25 C.F.R. §§ 23.101-144 (2016).
In 1979, the Department of the Interior, through the Bureau of Indian Affairs, (the
Department) issued several rules implementing ICWA—which included various binding
regulations codified at 25 C.F.R. § 23 (none of which are relevant here), as well as
nonbinding, recommended guidelines for State courts to apply in Indian child-custody
proceedings. See 44 Fed. Reg. 67,584 (1979) (guidelines); see also 81 Fed. Reg. 38,778,
38,785-86 (2016) (noting Department made clear in 1979 that guidelines addressing
State-court Indian child-custody proceedings not intended to have binding effect). The
Department published an updated version of those nonbinding guidelines in 2015. See 80
Fed. Reg. 10,146-02 (2015). But the Department has since recognized a need for binding
standards for Indian child-custody proceedings in State courts, and on June 14, 2016, the
Department issued a final rule that added a new subpart to 25 C.F.R. § 23 to address state
court implementation of ICWA. See 81 Fed. Reg. 38,778, 38,779, 38,782-86 (2016); see
25 C.F.R. §§ 23.101-144. The final rule also updated certain definitions that 25 C.F.R.
§ 23 incorporates by reference, including—relevant here—the definition of "active
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efforts" at reunification. See 81 Fed. Reg. 38,778, 38,864-65 (2016); see 25 C.F.R. §
23.102 (providing terms not defined have meaning assigned in 25 C.F.R. § 23.2); see 25
C.F.R. § 23.2 (defining "active efforts"). While both parties rely on the 2015 version of
the nonbinding guidelines in their briefs, we apply the binding federal regulations
adopted in 2016.
Father's only argument under ICWA is that there was not clear and convincing
evidence supporting the district court's finding that the State made active efforts at
reunification, as required by 25 U.S.C. § 1912(d). Father presents two arguments on this
issue: (1) The State did not make active efforts towards his visitation with E.L. and (2)
the State did not make active efforts to assist him in meaningfully availing himself of
community resources and services.
The 2016 federal regulations provide the following definition for "active efforts"
and a nonexhaustive list of examples of what may constitute active efforts:
"Active efforts means affirmative, active, thorough, and timely efforts intended
primarily to maintain or reunite an Indian child with his or her family. Where an agency
is involved in the child-custody proceeding, active efforts must involve assisting the
parent or parents or Indian custodian through the steps of a case plan and with accessing
or developing the resources necessary to satisfy the case plan. To the maximum extent
possible, active efforts should be provided in a manner consistent with the prevailing
social and cultural conditions and way of life of the Indian child's Tribe and should be
conducted in partnership with the Indian child and the Indian child's parents, extended
family members, Indian custodians, and Tribe. Active efforts are to be tailored to the
facts and circumstances of the case and may include, for example:
"(1) Conducting a comprehensive assessment of the circumstances of the Indian
child's family, with a focus on safe reunification as the most desirable goal;
"(2) Identifying appropriate services and helping the parents to overcome
barriers, including actively assisting the parents in obtaining such services;
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"(3) Identifying, notifying, and inviting representatives of the Indian child's Tribe
to participate in providing support and services to the Indian child's family and in family
team meetings, permanency planning, and resolution of placement issues;
"(4) Conducting or causing to be conducted a diligent search for the Indian
child's extended family members, and contacting and consulting with extended family
members to provide family structure and support for the Indian child and the Indian
child's parents;
"(5) Offering and employing all available and culturally appropriate family
preservation strategies and facilitating the use of remedial and rehabilitative services
provided by the child's Tribe;
"(6) Taking steps to keep siblings together whenever possible;
"(7) Supporting regular visits with parents or Indian custodians in the most
natural setting possible as well as trial home visits of the Indian child during any period
of removal, consistent with the need to ensure the health, safety, and welfare of the child;
"(8) Identifying community resources including housing, financial,
transportation, mental health, substance abuse, and peer support services and actively
assisting the Indian child's parents or, when appropriate, the child's family, in utilizing
and accessing those resources;
"(9) Monitoring progress and participation in services;
"(10) Considering alternative ways to address the needs of the Indian child's
parents and, where appropriate, the family, if the optimum services do not exist or are not
available;
"(11) Providing post-reunification services and monitoring." 25 C.F.R. § 23.2.
Several statements in the preamble of the final rule mentioned above clarify the
active efforts requirement. Relevant here, the Department stated:
"The final rule clarifies that, where an agency is involved in the child-custody
proceeding, active efforts involve assisting the parent through the steps of a case plan,
including accessing needed services and resources. This is consistent with congressional
intent—by its plain and ordinary meaning, 'active' cannot be merely 'passive.'" 81 Fed.
Reg. 38,778, 38,790 (2016).
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The preamble also provided that the sufficiency of "active efforts" will vary case-
by-case and the final rule's definition of active efforts retains a state court's discretion to
consider the facts and circumstances of each case. 81 Fed. Reg. 38,778, 38,791 (2016).
Lastly, the preamble noted that some commenters suggested requiring a minimum
number of the listed examples to reach the active efforts threshold, but the Department
responded that "[t]he minimum actions required to meet the 'active efforts' threshold will
depend on unique circumstances of the case." 81 Fed. Reg. 38,778, 38,791 (2016).
Neither ICWA nor its regulations provide the standard of proof required for the
State to prove it made active efforts at reunification. In the preamble of the final rule, the
Department explicitly declined to establish a uniform standard of proof. 81 Fed. Reg.
38,778, 38,816 (2016). Thus, we continue to use the same standard of proof Kansas has
used to determine whether the State has met its burden, which requires the State prove,
by clear and convincing evidence, that it used active efforts. See In re L.M.B., 54 Kan.
App. 2d at 303. Thus, we ask whether, after reviewing all the evidence in the light most
favorable to the State, we are convinced that a rational fact-finder could have found the
district court's determination to be highly probable. See 54 Kan. App. 2d at 304.
1. Visitation with E.L.
One example of active reunification efforts in the ICWA regulations is
"[s]upporting regular visits with parents or Indian custodians in the most natural setting
possible as well as trial home visits of the Indian child during any period of removal,
consistent with the need to ensure the health, safety, and welfare of the child." 25 C.F.R.
§ 23.2(7). Father argues the State did not make active efforts because in-person visitation
stopped for a time, and only occurred once a month when it resumed. He also argues the
virtual visits were not "the most natural setting possible," and the foster parents hindered
the visits.
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First, the visitation example is only one of several examples of active reunification
efforts listed in the ICWA regulations; it is not a requirement of ICWA. See 25 C.F.R.
§ 23.2. Even so, reviewing the evidence in the light most favorable to the State, as is
required here, a rational fact-finder could have found it highly probable that SFM used
active efforts in supporting Father's visitation with E.L. While it is true the amount and
type of visitation might be inadequate in a typical case, this was not a typical case. And,
again, what constitutes "active efforts" depends on the facts and circumstances of each
case.
We find SFM made active efforts to support regular visits with the parents. First,
the limitations placed on visitation were outside of SFM's control. The Tribe is the one
who limited visitation, first by launching a travel ban during the COVID-19 pandemic
and then by reducing transportation of E.L. to Wichita from four times a month to once a
month, based on its staffing shortage. Yet, despite these limitations, SFM continued to
support visitation by initiating weekly virtual visits with the parents. While no one claims
virtual visits with a toddler are ideal, if SFM had not launched such visits, the parents
would have had no contact with E.L. And each time the parents complained about
interference from the foster parents in the virtual visits, SFM stepped in and addressed
their complaints.
Father next argues the level of visitation was unreasonable based on DCF policies
and procedures. He references various policies which acknowledge the parents' right of
reasonable contact with their children who are in out of home placement, emphasize the
importance of such contact, and suggest that such contact should occur at least once a
week "in naturally occurring settings." Still, as Father rightly admits, the manual he
references contains an exception to the visitation requirements when safety issues
threaten the participants. See Kansas Department for Children and Families, Policy and
Procedure Manual § 3237(G) (2021). While Father claims "courts" may limit parental
contact with the child, the exception is not so limited. Here, the COVID-19 pandemic
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presented a safety issue that threatened participants and, thus, justified a departure from
DCF's general visitation standards. Further, by starting virtual visits, SFM ensured the
parents continued to have weekly contact with E.L. Neither the Tribe nor SFM prohibited
the parents from traveling to Oklahoma to continue weekly, in-person visits—indeed, the
Tribe even tried to facilitate those by offering to pay the parents' travel costs and
transport E.L. closer to Wichita. We do not find SFM violated DCF's policies or failed to
engage in active efforts to support visitation.
Father argues he should have been given more "expansive" visitation since he was
in contact with SFM and acted appropriately during his visitation with E.L. Yet, Father
fails to acknowledge how his behavior outside the visits prohibited such expansion.
Indeed, Faine testified it was the parents' conduct outside of the visits that was likely to
result in serious emotional or physical damage to E.L. and which impacted her opinion
about whether to send E.L. home with them. She also testified Father did not transition to
in-home, in-person visits at Father's house because of his positive drug tests and failure to
engage in substance abuse treatment.
Viewing the evidence in the light most favorable to the State, a rational fact-finder
could have found it highly probable that SFM made active but unsuccessful efforts to
prevent a family breakup, including active efforts to support Father's visitation with E.L.
2. Active efforts to assist Father in meaningfully availing himself of community
resources and services
Father next argues the State did not make active reunification efforts to assist him
in meaningfully availing himself of community resources and services. He claims SFM
failed to adequately educate him about substance abuse treatment and failed to provide
adequate transportation to treatment. He also claims SFM failed to educate him about the
court-ordered WASAC protective parenting class, including where to go to complete it.
18
One example of active efforts at reunification set forth in the ICWA regulations is
"[i]dentifying appropriate services and helping the parents to overcome barriers,
including actively assisting the parents in obtaining such services." 25 C.F.R. § 23.2(2).
Another example is: "[i]dentifying community resources including housing, financial,
transportation, mental health, substance abuse, and peer support services and actively
assisting the Indian child's parents or, when appropriate, the child's family, in utilizing
and accessing those resources." 25 C.F.R. § 23.2(8). Again, as mentioned above, these
are just two examples of active reunification efforts, not requirements of the ICWA. See
25 C.F.R. § 23.2.
Father essentially asks us to reweigh the evidence, by emphasizing his testimony
regarding his alleged misunderstanding of the nature of the services required for
reintegration and discounting Faine's testimony about her efforts to explain the
importance of his completion of those services. Yet, the district court judged the
credibility of and weighed Father's testimony against the testimony from Faine and the
State's other witnesses. We will not retread that ground. In re B.D.-Y., 286 Kan. at 705.
Instead, our job is to determine whether, after reviewing all the evidence in the light most
favorable to the State, we are convinced that a rational fact-finder could have found the
district court's determination to be "highly probable." 286 Kan. at 705-06. Given the
evidence here, we are indeed convinced.
First, there is clear and convincing evidence in the record that Faine went over
Father's case plan with him—which included both the requirement that he complete a
WASAC parenting class and the requirement that he complete a substance abuse
evaluation and follow all recommendations from the evaluation. Faine continued to
actively engage with Father by regularly meeting with him and discussing his progress.
Faine explained how she employed active efforts here by giving the example that when
Father walked to the office for his meetings with her, she would take him home. She also
told Father about all of the free or reduced cost options for him to complete his court-
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ordered services, such as free parenting classes and a substance abuse evaluator who
charged on a sliding scale. Further, when Father tried to excuse his failure to complete a
substance abuse evaluation by claiming he did not believe businesses were open again,
Faine explained he could complete the evaluation by telephone.
Father faults the State for his claimed misunderstanding about the "value" of
substance abuse treatment. Yet, he admitted he understood he needed to complete a
substance abuse evaluation to regain custody of E.L., evidencing Faine explained the
importance of this task. And despite his claim on appeal that "he did not really know
what substance abuse treatment meant," he testified he completed both a substance abuse
evaluation and substance abuse treatment as part of a prior criminal case.
A reasonable fact-finder could find it highly probable that Father's failure to
undergo substance abuse evaluation and treatment was not because he did not understand
what it involved, but, instead, because he was not prepared to address his substance abuse
issues. Father repeatedly tested positive for methamphetamine in his hair follicle tests yet
denied he had ever used methamphetamine. Instead, he blamed the failure on the hair
products he used—and apparently continued to use, despite their alleged effect on his test
results.
Faine regularly counseled Father about his substance abuse problem, but she could
not make him attend treatment. Other courts addressing a similar situation have held a
parent's demonstrated lack of willingness to participate in treatment may be considered in
determining whether the State has taken active efforts to reunify an Indian family. See
N.A. v. State, 19 P.3d 597, 603-04 (Alaska 2001); Matter of Maricopa County Juvenile
Action No. JS-8287, 171 Ariz. 104, 113, 828 P.2d 1245 (Ariz. Ct. App. 1991); In re
Declaring M.E.M., 209 Mont. 192, 197-98, 679 P.2d 1241(1984); State ex rel. Juvenile
Department v. Woodruff, 108 Or. App. 352, 357, 816 P.2d 623 (1991). Likewise, we do
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not find Father's unwillingness to participate in substance abuse treatment meant SFM
did not engage in active efforts to persuade him to do so.
As to Father's claim that SFM did not engage in active reunification efforts
because SFM did not transport him to substance abuse treatment or to a mental health
evaluation, the evidence does not suggest transportation was the barrier to completing
these tasks. First, Father testified he did complete a clinical assessment, so he apparently
did not need transportation to complete this task. Next, Father does not claim he ever
requested transportation or bus passes from Faine. Yet, since Faine took him home from
meetings when he did not have transportation, she was clearly willing to provide it.
What's more, as to a substance abuse evaluation, Faine told him he could complete it by
telephone. Father testified he did not complete substance abuse treatment because he did
not believe it would help, not because he lacked transportation. We do not find Father's
belated claim that he lacked transportation to mean SFM did not actively try to help him
complete these case plan tasks.
Father focuses on ways that he claims SFM failed to help him while ignoring his
lack of engagement. SFM offered many services and suggestions to address Father's
barriers to participation, to which he responded with an unwillingness to participate.
Father also ignores other ways SFM actively strove towards reunification, including
taking steps to keep siblings together by placing E.L. in the same foster home as D.L. (an
example of active efforts found in 25 C.F.R. § 23.2[6]). Viewing the evidence in the light
most favorable to the State, a rational fact-finder could have found it highly probable that
SFM made active but unsuccessful efforts to reunify this Indian family—those active
efforts including assisting Father in meaningfully availing himself of community
resources and services.
21
Admissibility of Dr. Weeks' testimony
Dr. Weeks provided expert testimony at the termination hearing about D.L.'s
injuries and her opinion on the cause of those injuries. Father claims the State had to
disclose Dr. Weeks in accordance with the expert witness disclosure requirements set
forth in K.S.A. 2020 Supp. 60-226(b)(6). Since it did not, he argues the district court
should have exercised its discretion under K.S.A. 2020 Supp. 60-237(c) to prohibit Dr.
Weeks' testimony at the hearing. We generally review a district court's decision to admit
or exclude expert testimony for an abuse of discretion. See Miller v. Johnson, 295 Kan.
636, 687-88, 289 P.3d 1098 (2012), overruled on other grounds by Hilburn v. Enerpipe
Ltd., 309 Kan. 1127, 442 P.3d 509 (2019). That said, when a district court's admission of
expert testimony turns on statutory interpretation, this court's review is de novo. See
Bullock v. BNSF Railway Co., 306 Kan. 916, 921, 399 P.3d 148 (2017).
The KCCC sets forth the procedures for CINC matters. See K.S.A. 2020 Supp. 38-
2203(a). While Father acknowledges the KCCC includes a statute which governs
discovery in such matters, he misconstrues it. See K.S.A. 2020 Supp. 38-2245. The civil
discovery procedures Father relies on here only apply (1) after a hearing, and (2) after a
finding that the Chapter 60 civil discovery procedures will expedite the proceedings.
K.S.A. 2020 Supp. 38-2245(a). This likely stems from one of the stated policies of the
KCCC—to dispose of all proceedings without unnecessary delay. See K.S.A. 2020 Supp.
38-2201(b)(4). There was no such hearing or finding in this case, nor does the record
reflect that Father requested one. Moreover, a panel of this court has described a judge's
decision to apply the civil discovery procedures in this context as "a matter of discretion."
In re K.W.C., No. 112,904, 2015 WL 6112013, at *8 (Kan. App. 2015) (unpublished
opinion).
22
Additionally, the KCCC only requires a party to disclose the names of its potential
witnesses "upon request." See K.S.A. 2020 Supp. 38-2245(b). Father does not assert that
he requested such disclosure, and no such request appears in the record on appeal.
Father asserted no other basis, either to the district court or to us, that the
admission of Dr. Weeks' testimony was improper. As a general rule, unless there are
exceptional circumstances, appellate courts do not consider issues on appeal that were not
raised by the parties. State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007). Further,
"failure to brief and argue an issue constitutes a concession of an issue by the parties."
State v. Laborde, 303 Kan. 1, 7-8, 360 P.3d 1080 (2015) (overruled on other grounds by
Balbirnie v. State, 311 Kan. 893, 468 P.3d 334 [2020]); see State v. Godfrey, 301 Kan.
1041, 1043-44, 350 P.3d 1068 (2015).
Since Father has failed to establish the discovery procedures requiring expert
witness disclosure applied here, the court did not abuse its discretion in denying the
parents' motion to exclude Dr. Weeks' testimony.
Affirmed.
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