In re D.H. Jr. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,745
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of D.H. JR.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Meade District Court; ANDREW STEIN, judge. Opinion filed December 23, 2021.
Reversed and remanded with directions.
Chay Howard, of Greensburg, for appellant natural mother.
Clay A. Kuhns, county attorney, for appellee.
Before BRUNS, P.J., HURST, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: This case, which involves the application of the Indian Child
Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2018), has a long and tortured history,
which we need to describe in some detail in order to provide context for the ongoing
issue throughout these proceedings. After several trips to our appellate courts, we once
again confront the question whether on remand from this court, the district court erred in
finding that notices to certain Indian tribes were sufficient to comply with the ICWA so
as to enable the district court to determine whether the child, who is the subject of
proceedings to terminate parental rights, is an Indian child.
R.H. is the natural mother (Mother) of D.H. Jr., (Child), who was born in
November 2012. It is Mother's appeal that brings this matter to us. D.H., the Child's
father, has not appealed.
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2014
In 2014, when the Child was two years of age, the State initiated Child in Need of
Care (CINC) proceedings in the district court based on the parents' persistent use of
illegal drugs that interfered with their parenting of the Child. The Child was placed in the
protective custody of Saint Francis Community Services, and ultimately in the custody of
S.H., the Child's paternal grandmother (Grandmother). At the time of the initial custody
hearing, the parents were confined in the Meade County jail without bond.
Shortly after the commencement of these proceedings, Grandmother submitted an
affidavit stating that while she was not enrolled as a member of a federally recognized
Indian tribe, the Child was eligible for enrollment. She identified the tribe "with which
the child may be associated" as the Cherokee tribe.
Thereafter, the State sent a form notice of the proceedings to the Cherokee Nation
in Tahlequah, Oklahoma and to the Bureau of Indian Affairs area director in Anadarko,
Oklahoma. The notice gave information on the Child and the Child's parents. The State's
form of notice also provided space to identify the Child's maternal and paternal
grandparents and great-grandparents. The only information provided in this space was the
name and address of Grandmother. The comments section of the form alerted the State
that "[o]nce a court is faced with evidence that the child is an Indian child, the court is
bound to apply ICWA and to comply with its requirements. In re S.M.H., 33 Kan. App.
2d 424, 103 P.3d 976 (2005)."
The Cherokee Nation responded that none of the persons named in the notice was
an enrolled member of the tribe. These persons consisted only of the Child's parent and
Grandmother, whose birthdate was unknown. The Cherokee Nation stated that it needed
full information about the Child's direct biological lineage to determine if he was eligible
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for tribal membership. It stated: "It is impossible for Cherokee Nation to confirm or deny
a claim of 'eligible for enrollment' without this information."
The court adjudicated the Child as a CINC after both parents decided not to
contest and stipulated to the State's claims.
2016
On the State's motion, and following a termination hearing, the district court
terminated the parents' parental rights. The State's motion had provided some of the
Child's biological information, including the name and address of the maternal
grandmother. Both parents appealed. Mother asked the Court of Appeals to remand the
case pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), to determine if
she had been denied the effective assistance of counsel. Our court granted the motion,
and the case was remanded for a Van Cleave hearing.
On remand, the district court conducted an evidentiary hearing at which Mother
contended that her counsel had advised her that she should not pursue the issue of
whether the Child had Indian heritage because the tribe would come and take the Child
away. Following the evidentiary hearing, the district court found that the performance of
Mother's counsel had been below the reasonable attorney standard, but that his deficient
performance was harmless. The district court also found that adequate information had
been provided to meet the requirements for ICWA notification.
2017
The case was returned to the Kansas Court of Appeals, where the court considered
the appeal of the district court's termination of parental rights. In re D.H., 54 Kan. App.
2d 486, 401 P.3d 163, rev. denied 307 Kan. 987 (2017). The court found sufficient
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evidence to support the district court's finding that the Child's parents were unfit and that
their parental rights should be terminated. The court then addressed the adequacy of the
information about the Child's paternal side in the ICWA notice, but not the lack of
information about the Child's maternal side. This was because the issue on appeal was
Mother's contention that the ICWA notice was deficient because it omitted the birthdate
and maiden name of Grandmother, which the Cherokee Nation had noted in its response
to the notice. But in addressing the notice requirement under the ICWA, this court noted
that, to the extent known, the notice must include:
"'All names known, and the 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.'" 54 Kan. App. 2d at 502.
See 25 C.F.R. § 23.11(d)(3) (2014). In addressing Mother's claim, this court found that
the State made no effort to supply the Cherokee Nation with the missing information
about the Child's Grandmother, even though the information was readily available
because the Child was living with Grandmother during the pendency of these
proceedings. The court concluded: "The court must consider this child to be an Indian
child until the Cherokee Nation rules that he is not." 54 Kan. App. 2d at 503.
The case was remanded to the district court in order for the State to provide further
information to the Cherokee Nation to determine if the Child could be enrolled in the
tribe. The appellate court concluded that if the district court finds that the Child is an
Indian child, the district court must set aside its decision terminating parental rights and
proceed further under the ICWA. 54 Kan. App. 2d at 504.
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2018
The district court held its second remand hearing in February 2018. The State
provided a revised notice to the Cherokee Nation and the tribe's response to the notice.
The court asked whether there was a possibility that "any other Indian tribe or nation . . .
was suspected as being the ancestral or the tribe of heritage" for the Child. Mother's
counsel responded that Mother "believes she may have some Indian heritage. She's in the
process of communicating with her family to determine the nature of that." The court
responded:
"Counsel, I'm not aware of whether that could even be asserted if it was not prior to the
appeal. And, it appears that the only issue in the remand instructions from the Court of
Appeals was regarding the notice to the Cherokee Nation. So, it does not appear that the
Court would have authority to entertain assertions of relation-hood or relationship with
another nation.
....
". . . [T]he Court will not entertain assertions of any other Indian tribe as being
the tribe to consider for the Indian Child Welfare Act."
The State's counsel argued that the amended notice was sufficient and satisfied the
mandate of the Court of Appeals. The State contended that as a result of the Court of
Appeals ruling, the only missing information was information regarding the paternal
grandmother. The State argued:
"I agree that in certain cases, that the Court of Appeals could have asked for
more information to be sent to the tribe. They did not specifically in this one, and that
was the basis for the remand. So, I do not believe it would be proper, at this point in time,
to now require the State to have a larger notification than what the Court of Appeals was
basing their opinion on."
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Mother's counsel responded:
"While I would concede that the most egregious errors were the question marked
areas, it does not make the notice inherently proper per what the Court of Appeals is
requesting just because it has what had question marks now. It still lacks what the C.F.R.,
which is cited by the Court of appeals as that is required."
The district court found that the additional information initially requested by the
Cherokee Nation related to the Child's Grandmother, and the notice provided that
information. The district court concluded that the mandate from the Court of Appeals had
been satisfied.
Once again Mother appealed. The State and the Child's Grandmother, who was an
interested party in the case, moved the Court of Appeals to dismiss the appeal for lack of
jurisdiction. The Court of Appeals granted the motion. Our Supreme Court took up the
matter for review and reversed the Court of Appeals and remanded for the Court of
Appeals to consider Mother's appeal. In re D.H., No. 119,156 (order filed September 14,
2018). On remand to the Court of Appeals, Mother submitted her appellate brief in which
she noted the requirements of 25 C.F.R. § 23.11(d)(3) (2014) that included information
on the Child's maternal lineage. She contended that following the initial appeal of this
case, "while the State cured the most egregious error in failing to respond to the Cherokee
Nation's request for additional information, the notice remains deficient without the
paternal great-grandparent's relevant information."
2019
Upon considering the matter after remand, the Court of Appeals again focused on
the information regarding the Child's paternal side, which was the object of Mother's
current appeal. This court again cited the requirement that the notice include:
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"'All names known, and the 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, marred and former names or aliases; birthdates;
places of birth and death; tribal enrollment numbers, and/or other identifying information.
'" In re D.H., No. 119,156, 2019 WL 1495698, at *3 (Kan. App. 2019) (unpublished
opinion).
The court noted the State's lack of effort in complying with these requirements with
respect to the paternal great-grandparents: "Grandmother's continued participation in the
case suggests little would have been required to make inquiry through her for information
about her own parents." 2019 WL 1495698, at *3.
The State argued that the omission of great-grandparent information was harmless.
The court found this argument to have been waived because the State failed "to pair that
argument with supporting authority and neither this court nor our Supreme Court has
applied a harmless error analysis to this federal notice requirement." 2019 WL 1495698,
at *3.
The court also rejected the State's contention that the court should consider
"'child's time'" in resolving this case. 2019 WL 1495698, at *4. Citing the notice
requirements under the ICWA, the court stated: "We are aware of the need for all cases
under the Code to be resolved as promptly as possible, consistent with the law. That
consideration, however, does not give this court license to declare a case concluded when
an issue remains unresolved." 2019 WL 1495698, at *4.
The court remanded the case to the district court to
"fully comply with the notice requirements under the Act as they applied at the outset of
the case. If the Cherokee Nation again determines D.H. is not an Indian child, no further
action is required. This court has already affirmed the termination of parental rights. If in
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response to the revised notice D.H. should be found to be an Indian child, the district
court must set aside the termination order and proceed in compliance with the Act." 2019
WL 1495698, at *4.
2020
On remand, the State sent revised notices to the Cherokee Nation, the Eastern
Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians. The
revised notice contained information regarding the paternal branch of the Child lineage
back to the great-grandparents, but no information about the Child's maternal line. None
of the tribes identified the Child as an Indian child. Addressing the attorney for the State,
the district court asked: "And, just so I'm clear, I have read the Opinion and the Mandate.
My understanding that the sole deficiency this go round was the failure to provide the
names of the great grandparents to the tribes for them to consider; is that correct?" The
State's attorney responded, "That's my understanding, Your Honor."
Mother's counsel responded: "Your Honor, I believe it would be the position of
the mother that for notice to be sufficient under this (inaudible) provide all information
relevant to those determinations. Of course, it's decided in the Opinion was the omission
of the great grandparents' information, Your Honor."
Mother's counsel requested a continuance so Mother could speak to her family to
determine the nature of her Indian heritage. The district court declined to continue the
proceedings. Mother's counsel further objected to the adequacy of the ICWA notice
because it provided information only about the paternal side of the Child's heritage and
because the notice was not sent to the Bureau of Indian Affairs. The district court
disagreed and concluded the notices complied with ICWA, thereby foreclosing any
further challenge to the order terminating parental rights.
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Mother has again appealed to this court.
ANALYSIS
Jurisdiction
As a preliminary matter, the State contends this court lacks jurisdiction to consider
Mother's appeal because it does not arise from an order of temporary custody or from an
adjudication, disposition, or finding of unfitness or termination of parental rights. The
existence of appellate jurisdiction is a question of law over which we have an unlimited
review. See In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017).
The same jurisdictional issue was raised earlier in these proceedings and to no
avail. In reversing the Court of Appeals' dismissal of Mother's appeal for lack of
jurisdiction, our Supreme Court stated:
"We find the Court of Appeals erred in determining it lacked jurisdiction to hear
this appeal. The Court of Appeals' prior remand order directed that if the district court
determined D.H. Jr. was not an Indian child, the district court could 'reaffirm its prior
decision terminating parental rights.' In re D.H., 54 Kan. App. 2d 486, 504, 401 P.3d 163,
rev. denied 307 Kan. 987 (2017). The district court's finding on remand that the second
notice of proceedings provided to the Cherokee Nation was appropriate and its
determination that D.H. Jr. was not an Indian child resulted in the district court's
reaffirmation of the termination of Appellant's parental rights. An order terminating
parental rights is appealable. K.S.A. 2017 Supp. 38-2273(a)." In re. D.H., No. 119,156
(order filed September 14, 2018).
We have jurisdiction to consider this appeal.
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Compliance with the Mandate
Because this appeal arises from the district court's judgment after a remand from
the appellate court, our task is to determine whether the district court complied with the
mandate to affect proper ICWA notice by requiring that proper notice be sent to
determine whether the Child is an Indian child.
As noted earlier, in its most recent remand to the district court, this court cited the
notice requirements found in the pertinent federal regulations and directed the State to
fully comply with the notice requirements under the ICWA. The court stated:
"We conclude the case must again be remanded to the district court, and the State
must fully comply with the notice requirements under the Act as they applied at the
outset of the case. If the Cherokee Nation again determines D.H. is not an Indian child,
no further action is required. This court has already affirmed the termination of parental
rights. If in response to the revised notice D.H. should be found to be an Indian child, the
district court must set aside the termination order and proceed in compliance with the
Act." In re D.H., 2019 WL 1495698, at *4.
Mother contends that the State's most recent attempt to provide notice to the Indian tribes
of the termination proceedings is still deficient.
Failure to Full Comply with the ICWA Notice Requirements
Application of the ICWA raises questions of law over which we exercise
unlimited review. In re A.J.S., 288 Kan. 429, 431, 204 P.3d 543 (2009); In re D.H., 54
Kan. App. 2d at 501-02.
Involuntary child custody proceedings in Kansas are governed by the Revised
Kansas Code for Care of Children, K.S.A. 2020 Supp. 38-2201 et seq. But when a court
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knows or has reason to know that an Indian child is involved, the court must comply with
the ICWA. K.S.A. 2020 Supp. 38-2203(a). An Indian child within the meaning of the
ICWA is an unmarried person under the age of 18 who is either a member of an Indian
tribe or is eligible for membership in an Indian tribe and is the biological child for a
member of an Indian tribe. 25 U.S.C. § 1903(4) (2018). If the evidence suggests the court
is dealing with an Indian child, the court must consider the child to be an Indian child
until the tribe advises otherwise. A tribe's determination of membership or membership
eligibility is conclusive and final. In re S.M.H, 33 Kan. App. 2d 424, 428, 103 P.3d 976(2005)
The ICWA requires specific notice of the proceedings to the applicable Indian
nations or tribes or to the Bureau of Indian Affairs so that an interested nation or tribe
may intervene in the proceedings. A tribal court has concurrent jurisdiction with state
courts over involuntary child custody proceedings involving children not domiciled on a
reservation. 25 U.S.C. § 1911(a) (2018); In re M.F., 290 Kan. 142, 149, 225 P.3d 1177(2010).
Certain ICWA regulations adopted in 2014 were amended in 2016. But under 25
C.F.R. § 23.143, the relevant 2016 amendments do not apply to proceedings to terminate
parental rights that were initiated before December 12, 2016. Here, the termination
proceedings began before that date, so the 2014 regulations were still in effect and
control. According to 25 C.F.R. § 23.11(d) (2014), the federal regulation governing the
ICWA notice applicable when the State first had notice of the Child's possible Cherokee
heritage, the notice must contain as much of the following information as is known or
reasonably ascertainable:
"(1) Name of the Indian child, the child's birthdate and birthplace.
"(2) Name of the Indian tribe(s) in which the child is enrolled or may be eligible for
enrollment.
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"(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." (Emphasis added.)
Based on a plain reading of 25 C.F.R. § 23.11(d) (2014), the State's notice after the most
recent remand did not fully comply with the requirements of the ICWA and therefore did
not comply with this court's mandate.
In an effort to comply with the mandate, the State provided additional information
about the Child's paternal lineage but none about the Child's maternal lineage. The
regulation required information about the names and addresses of the Child's biological
mother and father and of the child's maternal and paternal grandparents and great-
grandparents. The notice provided by the State included information about the Child's
paternal grandmother, great-grandparents, great-great-grandparents, and great-great-
great-grandparents, but none about the Child's maternal side other than Mother's name
and birthdate.
The State is required only to provide known ancestral information. But the State is
required to exercise reasonable efforts to obtain that information. See In re M.J., 266 P.3d
850, 861 n.10 (Utah App. 2011). Here, the record does not disclose that the State or any
of its social service agencies sought to obtain information about Mother's lineage from
Mother or from any other source.
Nothing in the language of 25 C.F.R. § 23.11(d) suggests that information in the
notice about a child's lineage is limited to the side of his or her family claiming Indian
heritage. See In re J.M., 206 Cal. App. 4th 375, 380, 141 Cal. Rptr. 3d 738 (2012). In
fact, as noted above, the regulation specifically requires ancestral information from both
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sides of the Child's family. This court's prior mandate required the State to "fully comply
with the notice requirements under the Act as they applied at the outset of the case."
D.H., 2019 WL 1495698, at *4. At the outset of the case the district court had the
affidavit from the Child's paternal grandmother stating that her grandson, the Child, was
eligible for enrollment in what she thought was the Cherokee tribe. That triggered the
notice requirements under the Act which included the disclosure of ancestral information
on both sides of the Child's family.
Because the notice was deficient by omitting Mother's side of the Child's lineage,
the case must once again be remanded to the district court for compliance with ICWA
notice requirements. On remand, the State must exercise reasonable diligence in seeking
out information regarding the maternal side of the Child's lineage as called for in 25
C.F.R. § 23.11(d). It would be wise for the State to document on the record its efforts in
doing so in order to minimize the chance for further appeals.
In accordance with 25 C.F.R. § 23.11(a), and as it did before, the State must then
provide a notice to the Eastern Band of Cherokee Indians, the United Keetoowah Band of
Cherokee Indians, and the Cherokee Nation in Oklahoma, which includes all reasonably
ascertainable information regarding the Child's maternal lineage. Moreover, the State
must also comply with the regulation's requirement that "[c]opies of these notices shall be
sent to the Secretary and the appropriate Regional Director." 25 C.F.R. § 23.11(a) (2014).
Nevertheless, the search for the Child's possible Indian heritage need not extend
beyond the Cherokee tribes based on Mother's belated contention in 2018 that she
"believes she may have some Indian heritage. She's in the process of communicating with
her family to determine the nature of that." (Emphasis added.) Mother apparently took no
steps during the two years before the next hearing in 2020 to determine if she, in fact, had
Indian heritage and whether she was eligible for membership in some tribe other than the
Cherokee. A mere possibility of having an Indian heritage is not sufficient to expand the
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inquiry into the Child's lineage beyond the inquiry currently under way. Cf. In re J.L., 10
Cal. App. 5th 913, 922-23, 217 Cal. Rptr. 3d 201 (2017).
The district court had already engaged in the process of determining whether the
Child was an Indian child. That process was incomplete because of the State's failure to
notify the tribes of the Child's maternal lineage. We have addressed that failure and are
remanding the case in order to cure it. But Mother contends that the scope of the inquiry
should extend to tribes other than the Cherokee tribe identified in the Child's paternal
grandmother's affidavit. Thus, she contends, the notice must also be sent to the Bureau of
Indian Affairs.
The role of the Bureau under the ICWA is to identify the correct tribal affiliation
of a purported Indian child when the affiliation of the child is unknown and to pass that
notice on to the proper tribal authorities for them to consider the claim that the child is
eligible for membership in the tribe. See 25 U.S.C. § 1912(a). While copies of the notice
should be sent to the Bureau under federal regulations, the requirement is a mere
technicality if there is no evidence of other Indian tribes. This is because the only purpose
of providing a copy to the Bureau is to provide a discovery tool for ascertaining the tribal
affiliation when Indian heritage is unknown. Here, Mother is not certain of tribal
affiliation, but no other suspected tribal affiliation has been advanced other than the
Cherokee tribe. Consequently, if the Bureau had been provided a copy of the ICWA
notice containing the same information provided to the Cherokee tribes, it is unlikely that
the Bureau would have responded differently. Nevertheless, because we are remanding
the case for full ICWA compliance, the State must follow the clear language of 25 C.F.R.
§ 23.11(a) (2014) and provide a copy of the notice to the Secretary and the Regional
Director.
So far Mother has not shown a reasonable probability that notice to the Bureau
would have produced a tribal affiliation other than with one of the three Cherokee tribes
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already provided with notice. If Mother had determined that the Child was eligible for
membership in some other tribe, she could have so informed the district court at any time
or she could have informed us even while the case has been on appeal. See In re M.B., 39
Kan. App. 2d 31, 176 P.3d 977 (2008). But she has not. Based on the record before us,
there is no basis for extending the inquiry into the Child's Indian heritage beyond the
tribes of the Cherokee Nation.
Reversed and remanded with directions.
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