|
(Cite
as: 25 Kan.App.2d 289, 961 P.2d 716)
Court
of Appeals of Kansas.
In
the Interest of H.A.M., J.F.D., and W.D.M., Minor Children Under
the Age of
Eighteen
Years.
No.
79562.
July
10, 1998.
Failure
of state to give immediate notice to tribe that a
child in need of care (CINC) proceeding had been filed
on behalf of three Indian children was a violation of
Indian Child Welfare Act (ICWA). Indian Child Welfare Act of
1978, § 4(1),
25 U.S.C.A. § 1903(1).
State's
improper failure to give immediate notice to appropriate Indian tribe
that a child in need of care (CINC) proceeding had
been filed on behalf of three Indian children, as required
under Indian Child Welfare Act (ICWA), did not require reversal
of decision terminating parental rights, where tribe intervened in action,
its representative participated in development of new case
plan, and that representative ultimately supported motion to terminate parental
rights since parents had not complied with case plan. Indian
Child Welfare Act of 1978, § 4(1),
25 U.S.C.A. § 1903(1).
Tribe's
determination of a child's membership or eligibility for membership in
tribe is conclusive and final, for purposes of the applicability
of Indian Child Welfare Act (ICWA) to custody proceeding involving
the child. Indian
Child
Welfare Act of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
Provisions
of Indian Child Welfare Act (ICWA) should be carefully followed
when the termination of parental rights to a child covered
by the Act is being considered. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
If
the provisions of the Indian Child Welfare Act are not
initially followed, subsequent remedial acts may bring a Kansas termination
of parental rights action into compliance with the requirements of
the Act. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Clear
and convincing evidence supported finding that mother and father were
unfit, so as to warrant termination of parental rights over
three children under Kansas statute; there was testimony that parents
had inflicted psychological and physical harm on children, that rehabilitation
program had been unsuccessful, and that parents had failed to
complete parenting classes, had violated other terms of case plan,
and had focused their energies on their anger with state
agency, trial court, and others providing assistance. K.S.A. 38-1501 et
seq.
Trial
court could find, beyond a reasonable doubt, a significant risk
of harm to three Indian children if they were returned
to natural parents, so as to warrant a termination of
parental rights under Indian Child Welfare Act (ICWA); there was
evidence that children had been psychologically harmed by both parents
and had been physically harmed by one with the other's
knowledge, and additional evidence showed parents had not completed parenting
classes and had failed to fulfill other aspects of case
plan. Indian Child Welfare Act of 1978, §§ 2
et seq., 102(f), 25 U.S.C.A. §§ 1901
et seq., 1912(f).
When
there is an action in a Kansas court for termination
of parental rights of a child subject to the Indian
Child Welfare Act (ICWA), the court should evaluate the evidence
by first applying the "clear and convincing evidence" test
established under Kansas law, and then apply the "beyond a
reasonable doubt" standard of the ICWA. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.; K.S.A. 38-1501 et seq.
Two-step
approach to the termination of parental rights in Kansas of
a child subject to the Indian Child Welfare Act (ICWA)
does not require a "beyond a reasonable doubt" standard for
the Kansas portion of the approach. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.; K.S.A. 38-1501 et seq.
Under
Kansas law, a finding of unfitness is a prerequisite to
the termination of parental rights. K.S.A. 38-1583(a).
After
a finding of unfitness, court conducting termination of parental rights
proceeding must then determine if the child can be returned
in a reasonable amount of time and whether the termination
of parental rights is in the best interests of the
child. K.S.A. 38-1583.
Standard
of review in a termination of parental rights case is
whether the record establishes substantial competent evidence to support the
trial court's findings. K.S.A. 38-1501 et seq.
When
reviewing decision terminating parental rights, appellate court does not make
a determination as to whether the evidence contained in the
record was clear
and convincing in nature. K.S.A. 38-1501 et seq.
Appellate
court generally must not reweigh the evidence, substitute its evaluation
of the evidence for that of the trial court, or
pass upon the credibility of the witnesses; it must review
the evidence in the light most favorable to the party
prevailing below.
**717
*289
Syllabus by the Court
1. The provisions of the Indian Child Welfare Act, 25
U.S.C. § 1901
et
seq.
(1994), should be carefully followed when the termination of parental
rights
to a child covered by the Act is being considered.
2. If the provisions of the Indian Child Welfare Act
are not initially followed, subsequent remedial acts may bring a
Kansas termination of parental rights action into compliance with the
requirements of the Act.
3. Under § 1912
of the Indian Child Welfare Act, before the rights of
an Indian parent or custodian to a child can be
terminated, a finding must be made that active efforts have
been made to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that
those efforts have proved unsuccessful.
4. Termination of an American Indian's parental rights may be
ordered only when the court is satisfied, beyond a reasonable
doubt, supported by the testimony of qualified **718
expert witnesses, that the continued custody of the child by
the Indian parent or custodian is likely to result in
serious emotional or physical harm to the child.
5. The standard of proof for termination of parental rights
under the Kansas Code for Care of Children, K.S.A. 38-1501et
seq.,
is whether there is clear and convincing evidence of a
parent's unfitness and the likelihood that the conduct or condition
causing the unfitness is unlikely to change in the foreseeable
future.
6. When there is an action in a Kansas court
for termination of parental rights of a child subject to
the Indian Child Welfare Act, the court should evaluate
the evidence by first applying the test established under Kansas
law, and then apply the standard of the Indian Child
Welfare Act.
*290
7. The two-step approach to the termination of parental rights
in Kansas of a child subject to the Indian Child
Welfare Act does not require a "beyond a reasonable doubt"
standard for the Kansas portion of the approach.
Becky C. Hurtig, Derby, for the appellant natural mother.
Richard L. Dickson, Wichita, for the appellant natural father.
Shawn Elliott, of the Kansas Department of Social and Rehabilitation
Services, for the appellee.
Before LEWIS, P.J., PIERRON, J., and JACK L. BURR, District
Judge, assigned.
PIERRON, Judge.
K.H. (the natural mother of H.A.M., J.F.D., and W.D.M.) and
D.M. (the natural father of H.A.M. and W.D.M.) appeal the
termination of their parental rights. They allege the trial court
failed to comply with the Indian Child Welfare Act (ICWA),
25 U.S.C.1901 et
seq.
(1994), and the State failed to produce evidence to prove
beyond a reasonable doubt that the return of the children
to their parents would result in significant harm to the
children.
On November 4, 1994, the State filed child in need
of care petitions for H.A.M., J.F.D., and W.D.M. The children
were placed in protective custody with the Kansas Department of
Social and Rehabilitation Services (SRS). K.H. and D.M. were ordered
to obtain psychological and substance abuse evaluations.
The children were adjudicated as children in need of care
(CINC) on March 8, 1995, after the court accepted the
statements of no contest by the parents' attorneys. The court
made extensive findings of fact including that K.H. had twice
before had her parental rights terminated. One of the children
subject to a prior termination proceeding, H.A.M., is also subject
to the present termination proceeding. Apparently, even though K.H. (but
not D.M.) had been found to be unfit with regard
to H.A.M., K.H. and D.M. concluded she was "not guilty,"
and thought it appropriate *291
for H.A.M. to live with K.H. after she and D.M.
began living together again.
The district court ordered the children to remain in SRS
custody, and they were not allowed to return to the
home of either parent without prior consent. The court also
ordered the parents to complete psychological and substance abuse evaluations,
commence active involvement in family therapy, and sign releases for
all evaluations to be provided to the court.
The court conducted review hearings every several months over the
next year and a half. On July 23, 1996, the
State filed a motion for review and termination of parental
rights.
On January 29, 1997, the Chickasaw Indian Nation became involved
in the case. K.H. filed a motion for continuance and
a motion for transfer of the case to the Children's
Court, Court of Indian Offenses, Chickasaw Agency. The court heard
K.H.'s motions on February 3, 1997. The court found all
three children were Indian children as defined in the ICWA
and its provisions would apply. Jay Watson, a representative of
the Chickasaw Nation, desired to review the case files and
the court took K.H.'s motion for transfer under advisement pending
the tribe's review of the files and the determination of
its position.
**719
On March 3, 1997, the court conducted a status conference.
Watson appeared and announced the tribe's intention to intervene. At
the termination hearing, Watson testified he had been given the
opportunity to have input in the direction of the proceedings
and had assisted in the development of a new case
plan in March 1997. The plan was described in the
court's journal entry dated on March 11, 1997. On March
10, 1997, the State filed an amended motion for review
and termination.
At the next status conference in May 1997, it was
determined the parents had failed to comply with the case
plan. Watson indicated the Chickasaw Nation supported SRS's motion for
termination of parental rights since K.H. and D.M. had failed
to comply with the case plan.
The trial court heard SRS's motion for termination in June
1997. On July 7, 1997, the court terminated the parental
rights of D.M. and K.H. Both parents appeal
and have filed individual briefs.
*292
First, K.H. and D.M. argue the trial court erred in its failure to properly
follow the notice provisions of the ICWA. K.H. requests a
reversal of the trial court's order terminating her parental rights, a
remand to the district court, and additional time to allow her to work
with the tribe to reunite her family. We agree that the trial
court failed to give timely notice, but under the facts of this case we
do not find the error requires a reversal of the termination decision.
The Kansas Code for Care of Children, K.S.A. 38-1501 et
seq.,
recognizes the ICWA and the authority it gives Indian nations
to intervene in a child in need of care proceeding.
K.S.A. 38-1503(a) states: "Proceedings concerning any child who appears to
be a child in need of care shall be governed
by this code, except
in those instances when the Indian child welfare act of
1978 (25 U.S.C. §§ 1901
et seq.) applies."
(Emphasis added.)
The ICWA was passed in 1978 in response to the
increasingly high number of American Indian children who were being
adopted by non-Indian parents and being raised apart from the
cultural heritage that accompanies the special status American Indians occupy
in this country. Mississippi
Choctaw Indian Band v. Holyfield,
490 U.S. 30, 32-33, 109 S.Ct. 1597, 104 L.Ed.2d 29
(1989). The stated purpose of the ICWA is to preserve
the integrity of Indian tribes and to provide Indian tribes
a means of intervening in cases involving the custody and/or
possible termination of Indian parents' rights to their children. 25
U.S.C. § 1901
(1994); 25 U.S.C. § 1902
(1994). State court application of the federal protective measures of
the ICWA is in furtherance of the State's duty to
"preserve the unique cultural heritage and integrity of the American
Indians." Adoption
of Riffle,
277 Mont. 388, 393, 922 P.2d 510 (1996).
In any proceeding involving custody
of a child of Indian heritage, the court must make a determination of
whether the ICWA governs the proceeding. If a child is an enrolled
member of a tribe or is the biological child of a member and is eligible
for membership, the ICWA applies. 25 U.S.C. § 1903(4)
(1994). The tribe's determination of membership or membership
eligibility is conclusive *293
and final. Adoption
of Riffle, 273 Mont.
237, 242, 902 P.2d 542 (1995), appeal
after remand 277 Mont.
388, 922 P.2d 510 (1996).
Once a child is determined to be an Indian child
as defined in the ICWA, the starting point of any
child custody proceeding is 25 U.S.C. § 1912(a)
(1994).
"In
any involuntary proceeding in a State court, 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 parent or Indian custodian and the Indian child's
tribe, by registered mail with return receipt requested, of the
pending proceedings and of
their right of intervention.... No foster care placement or termination
of parental rights proceeding shall be held until at least
ten days after receipt of notice by the parent or
Indian custodian and the tribe or the Secretary." 25 U.S.C.
§ 1912(a).
Several dates are important to the notice issue. No party
disputes that the three children **720
involved in this case are Indian children as defined in
25 U.S.C. § 1903(4).
The CINC petition expressly stated: "The State has reason to
believe that the children are of Indian descent." Yet, the
State does not dispute that notice was not immediately given
to the tribe.
The State filed a motion for termination of parental rights
on July 23, 1996. There is no mention of the
ICWA in the motion for termination or any evidence the
tribe was given notice. At the termination hearing, Watson testified
the children were "Indian children" as defined by the ICWA.
Watson stated he was a qualified "Indian expert witness" in
the courts of Iowa and Oklahoma and that the ICWA
requires notice to the Indian tribe before any foster care
proceedings are held. He testified the trial court's proceedings were
not in compliance with the ICWA notice provisions.
Watson testified that he had no knowledge of the CINC
proceedings until contacted by D.M. in January or February 1996.
He stated the court or the court services officer contacted
him sometime after D.M. contacted him. He also testified at
the termination hearing that the Chickasaw Indian Nation had declined
a transfer of the case to tribal court.
The CINC proceeding initiated by the State on November 4,
1994 was a "child custody proceeding" as contemplated in the
ICWA. 25 U.S.C. § 1903(1).
Consequently, the trial court was *294
required to "notify the parent or Indian custodian and 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).
See In
Interest of J.W.,
498 N.W.2d 417, 421-22 (Iowa App.1993); see also People
ex rel. DSS in Interest of C.H.,
510 N.W.2d 119, 124 (S.D.1993) (a tribe's right to intervene
is meaningless without notice of the proceedings; Therefore, the trial
court erred in not giving notice to the tribe of
the CINC proceedings.)
There is some validity to the parents' argument that they
were not given a meaningful opportunity to work with the
Chickasaw Nation in an effort to preserve the family and
that termination was almost a foregone conclusion by the time
the tribe was properly notified. The issue is not raised
by either party, but it appears the children were placed
with non-Indian foster parents. One of the express purposes of
the ICWA is the placement of Indian children "in foster
or adoptive homes which will reflect the unique values of
Indian culture." 25 U.S.C. § 1902;
In
re H.D.,
11 Kan.App.2d 531, 532, 729 P.2d 1234 (1986).
The
court in In re H.D.
noted: "Violation of the Indian Child Welfare
Act notice provisions may be cause for invalidation of the district court
proceedings. 25 U.S.C. § 1914 (1982)." 11 Kan.App.2d
531, Syl. ¶ 6, 729 P.2d 1234. The court in In
re H.D. also quoted
from the Guidelines for State Courts in Indian Child Custody Proceedings,
44 Fed.Reg. 67.585-86 (1979), which states: " 'Proceedings
in state courts involving the custody of Indian children shall follow
strict procedures and meet stringent requirements to justify any result
in an individual case contrary to these preferences [of keeping Indian
children with their families].' " 11 Kan.App.2d at 533, 729
P.2d 1234. Although the trial court failed to give notice
to the Chickasaw Nation, the error does not necessitate a reversal of
this case due to subsequent actions by the court.
Prior to termination, Watson assisted in the development of a
new case plan for K.H. and D.M. to permit the
children to be returned to their home, and the tribe
agreed the plan was appropriate. The Chickasaw Nation did not
transfer the case to its jurisdiction, but intervened in the
direction of the case. Considering *295
the Chickasaw Nation's involvement in this case, albeit belated, there
was substantial compliance with the ICWA purpose of involving the
tribe in the child care proceedings. Of great importance is
the apparent belief by the Chickasaw Nation that the trial
court remedied the initial failure to give notice with its
subsequent actions.
Next,
K.H. and D.M. argue there is insufficient evidence to terminate
their parental rights.
Under the ICWA, before an Indian parent's or custodian's rights
to a child can be terminated, a finding must be
made that **721
"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." 25 U.S.C.
§ 1912(d).
Termination may be ordered only where the court is satisfied,
beyond a reasonable doubt, supported by the "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." 25 U.S.C.
§ 1912(f).
The beyond a reasonable doubt standard in the ICWA's standard
is obviously a stricter standard than that required under the
Kansas Code for Care of Children, namely whether there is
clear and convincing evidence of a parent's unfitness. K.S.A.1997 Supp.
38-1583.
The federal standard has been interpreted by some state courts
to require a dual burden of proof. First, the court
must determine by clear and convincing evidence whether the state
law provisions for termination are satisfied and then turn to
the more stringent standard under the ICWA to determine whether
the petitioner has proved beyond a reasonable doubt that custody
by the natural Indian parent would likely result in damage
to the child. In
re Bluebird,
105 N.C.App. 42, 47, 411 S.E.2d 820 (1992). Other courts
have determined that the
federal standard adopted by the ICWA supplants the state standard
and that the only criteria applicable are enumerated in 25
U.S.C. § 1912(f).
See People
in Interest of C.A.J.,
709 P.2d 604, 606 (Colo.App.1985); People
in Interest of P.B.,
371 N.W.2d 366, 371-72 (S.D.1985).
*296
The most practical approach is one adopted by North Carolina, which involves
a two-step process, first applying the test established under state law
for termination of parental rights, and then applying the standard of
the ICWA. This approach does not require that the state law
elements for termination be proved beyond a reasonable doubt. We
believe this two-step approach is appropriate.
Under Kansas law, a finding of
unfitness is a prerequisite to the termination of parental rights. In
re M.D.S., 16 Kan.App.2d
505, 508, 825 P.2d 1155 (1992) (citing In
re J.G., 12 Kan.App.2d
44, 51, 734 P.2d 1195, rev.
denied 241 Kan. 838
[1987] ). K.S.A.1997 Supp. 38-1583(a) states the criteria for the
termination of parental rights. It provides in part:
"(a)
When the child has been adjudicated to be a child
in need of care, the court may terminate parental rights
when the court finds by clear and convincing evidence that
the parent is unfit by reason of conduct or condition
which renders the parent unable to care properly for a
child and the conduct or condition is unlikely to change
in the foreseeable future."
Subsections (b) and (c) list the
nonexclusive factors to be considered in
making this determination. A finding of any one of the factors
in K.S.A.1997 Supp. 38-1583(b) and (c) is sufficient to establish grounds
for terminating parental rights. K.S.A.1997 Supp. 38-1583(e);
In re J.G.,
12 Kan.App.2d at 52, 734 P.2d 1195. After a finding of unfitness,
the court must then determine if the child can be returned in a reasonable
amount of time and whether the termination of parental rights is in the
best interests of the child. In
re S.M.Q., 247 Kan.
231, 232, 796 P.2d 543 (1990); In
re N.D.G., 20 Kan.App.2d
17, 21, 883 P.2d 89, rev.
denied 256 Kan. 995
(1994). The court must give "primary consideration to the physical,
mental or emotional condition and needs of the child" when considering
whether to terminate parental rights. K.S.A.1997 Supp. 38-1583(e).
The standard of review in a termination
case is whether the record establishes substantial competent evidence
to support the trial court's findings. In
re S.M.Q., 247 Kan.
at 234, 796 P.2d 543. Substantial evidence has been defined
as evidence which a reasonable person might accept as being sufficient
to support a conclusion. In
re J.D.D., 21 Kan.App.2d
871, 874, 908 P.2d 633 (1995). The appellate *297
court does not make a determination as to whether the evidence contained
in the record was clear and convincing in nature. See In
re D.V., 17 Kan.App.**722
2d 788, 792, 844 P.2d 752, rev.
denied 252 Kan. 1092
(1993).
Furthermore,
an appellate court generally must not reweigh the evidence,
substitute its evaluation of the evidence for that of the trial court,
or pass upon the credibility of the witnesses. It must review
the evidence in the light most favorable to the party prevailing below.
In re S.M.Q.,
247 Kan. at 234, 796 P.2d 543; In
re D.V., 17 Kan.App.2d
at 792, 844 P.2d 752.
In determining that K.H. and D.M. were unfit, the trial
court found the following K.S.A.1997 Supp. 38-1583(b) factors to exist:
(b)(7) reasonable efforts by appropriate public or private child caring
agencies have been unable to rehabilitate the family; and (b)(8)
lack of effort on the part of the parents to
adjust their circumstances, conduct, or conditions to meet the needs
of their children. There was substantial competent evidence to support
the court's finding.
In determining that parental rights should be terminated pursuant to
the ICWA, the trial court found the following factors to
support its decision that beyond a reasonable doubt there was
significant risk of harm to the children if returned to
K.H. and D.M.:
1. The therapists for the children have clearly indicated the
impact these parents have had psychologically on H.A.M. and J.F.D.
2. H.A.M. and J.F.D. have been physically harmed by the
parents or with the knowledge and complacency of the parents.
3. The parents have not taken the necessary steps to
improve the situation, although
provided time to do so.
4. The parents have shown a disturbing lack of judgment
in allowing a parent found to be unfit to be
placed in a position of parenting the same child to
whom parental rights had been terminated.
5. The parents have displayed a willingness to ignore court
orders to fulfill their own needs while ignoring the needs
of the children.
K.H. objects to the trial court's reliance on a psychological
evaluation completed in March 1995. She argues the trial court
erred *298
in admitting the evaluation, over her objection, as evidence at
the termination hearing. K.H. states that the evaluation was based
on a 1-hour interview she had with Sandra Sims and
that at the termination hearing Sims repeatedly testified that she
could not remember the specifics of the evaluation or the
sources of information she used in formulating her opinions. K.H.
claims Sims' inability to remember the specifics rendered her unavailable
for cross-examination and violated her right to confront the witness.
K.H. also argues the testimony of the children's therapists was
not credible and should be disregarded. K.H. claims Joyce Kyle,
J.F.D.'s therapist, was less than an unbiased therapist. She states
Kyle started therapy with J.F.D. under the assumption that he
had been abused and she exerted great influence over him
to persuade him that he had been abused. K.H. also
states that Barbara Holt-Williams' contact with H.A.M. was minimal. She
claims Holt-Williams
testified that H.A.M. was prone to lying and that Holt-Williams
received a majority of her information from H.A.M.
K.H. argues the trial court incorrectly found that she and
D.M. had not taken the steps to improve the situation
and had displayed a willingness to ignore court orders. She
argues they substantially complied with the court's orders. She claims
the only two orders she failed to comply with were
to remain in therapy and to complete a parenting class
for children with attention deficit hyperactive disorder (ADHD). K.H. downplays
the need for ADHD classes. She also states she tried
to find a compatible therapist but could not. Money was
also a factor. She indicates her financial situation caused her
to not pay her child support.
Last, K.H. takes issue with the trial court's finding that
she and D.M. showed a lack of judgment in allowing
her to live with H.A.M. when her parental rights had
already been terminated. K.H. insists SRS created the untenable situation
with H.A.M. by only terminating K.H.'s parental rights at the
time, while leaving D.H.'s rights intact. She states, "It certainly
is not unheard of for **723
estranged couples to reunite, particularly when children are involved."
D.M. argues that he substantially complied with the court orders
early in the proceedings and that SRS failed to carry
out the statutory *299
charge to try and reintegrate the children with the parents
when possible. D.M. claims that Kim Scheer's unilateral decision to
request a cessation of visitation between
him and H.A.M. caused a breakdown of their relationship.
D.M. also alleges he and K.H. were getting along well
with W.D.M. and visitations seemed to go well. He contends
the court failed to recognize it could find him unfit
to have the custody of his oldest child, H.A.M., while
remaining fit to have his younger child, W.D.M. D.M. concludes
the trial court had ample evidence to find he was
fit to have both children.
The testimony at the termination hearing was lengthy. The trial
court heard testimony of 13 witnesses over a period of
5 days.
Kim Scheer testified the parents and children were provided therapy,
an SRS program support worker was provided, and several case
plans were developed identifying tasks the parents could accomplish to
assist with the court orders. Referrals had been made for
the benefit of the family to assist them in receiving
professional help and guidance in complying with the court orders,
and the children were placed in foster homes.
Scheer stated that K.H. was ordered into individual therapy but
was not currently in therapy and that she had provided
no verification that she had completed the court-ordered ADHD parenting
classes. She had not completed any age-appropriate parenting classes, failed
to pay child support, refused to sign a consent for
W.D.M. to receive the court-ordered developmental evaluation, and focused her
energies on her anger with SRS, the court, and all
others providing assistance instead of on participating in therapy and
cooperating with the court.
Scheer testified that D.M. physically abused his children, failed to
pay child support, failed to participate fully in individual therapy,
failed to complete age-appropriate parenting classes for J.F.D., did not
submit an income tax return as ordered, failed to provide
any AA or NA verification, failed to submit to random
urinalysis, and also focused his energies on his anger with
SRS, the court, and all others providing assistance instead of
on participating in therapy and cooperating with the court.
*300
Watson testified that K.H. and D.M. failed to comply with
the case plan instituted with his input which would have
ensured the correction of the conditions that led to the
initial removal. He also opined that termination of parental rights
would be in the best interests of the children.
Laura Almquist-Parks testified that D.M. failed to provide verification for
attendance at NA meetings, failed to comply with court-ordered ADHD
parenting classes, claimed he had a therapist but would not
disclose the name, and failed to submit to random urinalysis.
Almquist-Parks also testified that K.H. did not provide verification that
she was in therapy.
Joyce Kyle testified that she was J.F.D.'s therapist and had
seen him every other week for the last couple of
years. She testified that her play therapy with J.F.D. indicated
he had been traumatized. Kyle testified that J.F.D. told her
that his parents had locked him in a dark closet
with his sister and that
he was afraid of D.M. Kyle also testified that J.F.D.
indicated he and H.A.M. had been beaten with a belt
by D.M. and D.M. had tied him to his bed
for many hours at a time. J.F.D. told Kyle that
K.H. knew what was happening.
Almquist-Parks, a psychologist, testified that K.H. and D.M. cannot sufficiently
meet the needs of their children. Polly Freeman, a social
worker, testified that termination was appropriate because of the longevity
of the case, the parents' lack of resolve in regards
to abuse issues, and the need of the children to
have a permanent home. Kyle, also a social worker, testified
that she opposed returning the children to the custody of
K.H. and D.M. because they would not admit the seriousness
of their mistakes. She opined that by not admitting their
mistakes, there was a serious risk for additional abuse.
**724
K.H.'s claims that the 1995 evaluation lacked credibility, that Kyle
was not an unbiased therapist, and that Holt-Williams did not
have enough contact with H.A.M. to render a proper opinion
were all issues brought to the attention of the trial
court. The court weighed the evidence presented and found the
testimony of the State's witnesses to be credible.
*301
The testimony of witnesses at the termination hearing also supported
the trial court's finding, beyond a reasonable doubt, that returning
the children to the custody of the parents would result
in serious emotional or physical damage to the children.
Under both the Kansas clear and convincing standard and the
ICWA beyond a reasonable doubt standard, the trial court did
not err in terminating the parental rights of D.M. and
K.H.
Affirmed.
25 Kan.App.2d 289, 961 P.2d 716
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