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(Cite
as: 32 Kan.App.2d 448, 83 P.3d 1264)
Court
of Appeals of Kansas.
In
the Interest of J.J.G., DOB: 01/15/91.
No.
89,841.
Feb. 13, 2004.
Indian
Child Welfare Act (ICWA) initially applied to termination of parental
rights proceeding where mother was member of Indiana tribe, and father
was non-Indian, because minor was "Indian child," and parental
termination proceedings were expressly defined as "child custody
proceedings" under ICWA, and father was "parent" under
ICWA. Indian Child Welfare Act of 1978, § 4(1)(ii), (4,
9), 25 U.S.C.A. § 1903(1)(ii), (4, 9).
Non-Indian
father has standing to seek application of Indian Child Welfare Act (ICWA).
Indian Child Welfare Act of 1978, § 2 et seq., 25 U.S.C.A.
§ 1901 et seq.
Literal
compliance with requirement under Indian Child Welfare Act (ICWA) that
Tribe be given notice of termination of parental rights of non-Indian
father was not necessary, given unique facts of case, where there was
substantial compliance with requirements, and Tribe was already participating
through its counsel in related custody proceedings. Indian Child
Welfare Act of 1978, § 102(a), 25 U.S.C.A. § 1912(a).
Literal
compliance with evidentiary requirement under Indian Child Welfare Act
(ICWA)
that parental termination be supported by evidence beyond reasonable doubt,
including testimony of qualified expert witnesses, that continued custody
of child by parent or Indian custodian is likely to result in serious
emotional or physical damage to child, was unnecessary because Tribe elected
not to challenge termination of parental rights, and termination of non-Indian
parent's rights was consistent with reintegration of child with child's
native heritage. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Overriding
concern of Congress in enacting Indian Child Welfare Act (ICWA) was to
maintain family and tribal relationships existing in Indian homes, and
to set minimum standards for removal of Indian children from their existing
Indian environment. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901 et seq.
Standard
of review in termination of parental rights is whether substantial competent
evidence supports trial court's findings.
Fact
that father's multiple convictions for rape and sexual exploitation of
his own daughter had not yet been affirmed on appeal did not prevent convictions
from serving as presumptive evidence in termination of parental rights
proceeding that father was unfit for parenthood. K.S.A. 38-1585(a)(2).
Even
if father's incarceration prevented him from attending parenting classes,
or maintaining visitation, termination of father's parental rights was
justified for numerous reasons that were supported by substantial competent
evidence, including father's unfitness for parenthood as evidenced by
his multiple
convictions for rape and sexual exploitation of his child.
**1265
*448
Syllabus by the Court
1. A non-Indian father has standing to seek application of the Indian
Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq.
2. Under the unique facts of
this case, literal compliance with ICWA's required notice to the Tribe
for termination of parental rights of a non-Indian parent was unnecessary
because there was substantial compliance with the requirements and the
Tribe was already participating through its counsel in related custody
proceedings.
**1266
3. The overriding concern of Congress in enacting the ICWA was to maintain
the family and tribal relationships existing in Indian homes and to set
minimum standards for the removal of Indian children from their existing
Indian environment.
4. Under the unique facts of
this case, literal compliance with ICWA's evidentiary requirement that
parental termination to be "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," was unnecessary
because the Tribe elected not to challenge the termination of parental
rights and termination of the non-Indian parent's rights was consistent
with reintegration of the child with his or her native heritage.
5. Father's convictions of offenses that are presumptive of his unfitness
do not require affirmance on appeal in order to serve as presumptions
pursuant to K.S.A. 38-1585.
Anita Settle Kemp, of Wichita,
for appellant Faron Joe Griffith.
Larry S. Vernon, of Kansas Department
of Social and Rehabilitation Services, of Wichita, for appellee.
*449
Before GREENE, P.J., ELLIOTT, J., and KNUDSON, S.J.
GREENE, P.J.
The natural non-Indian father
of J.J.G. appeals the trial court's decision to terminate his parental
rights, alleging noncompliance with the Indian Child Welfare Act (ICWA)
and insufficiency of evidence. We affirm.
Factual
and Procedural Overview
J.J.G. was born January 15, 1991,
to her Indian mother, a member of the Crow Tribe, and her non-Indian father.
Father moved to Kansas in 1996 with the child after learning that
mother had filed sexual abuse reports against him in Montana, leaving
mother suffering from a stroke and chronic alcoholism. In February
2001, J.J.G. was placed in the Wichita Children's Home after she herself
made allegations of sexual abuse against her father. Father denied
the allegations.
On March 5, 2001, a child in
need of care (CINC) petition was filed for J.J.G. based on the allegations
of sexual abuse. At a temporary custody hearing, the court noted
that ICWA might apply and required notice to mother. The State sent
the requisite notice to mother and copied the director of social services
for the Crow Tribe. On April 5, 2001, an attorney for the Crow Tribe of
Montana entered his appearance on behalf of the Tribe, intervening in
the custody proceedings. The attorney participated in pretrial conferences
by phone and consistently indicated the Tribe's interest but asked the
State to proceed with the matter.
In October 2001, father was convicted
of one count of rape and five counts of sexual exploitation of a child
(J.J.G.) and sentenced to 155 months' imprisonment. In December
2001, J.J.G. was adjudicated to be a child in need of care and ordered
to remain in an out-of-home placement.
At an April 2002 review hearing,
mother provided to the court a certificate of achievement showing that
she had completed positive Indian parenting classes. The court found that
mother was receiving services through the Crow Tribe, but that the Tribe
had not sought to exercise jurisdiction over J.J.G. The court also received
an authorization from the Crow Tribe licensing mother's maternal half-sister
and brother-in-law for the care of J.J.G. The *450
permanency plan included placement consistent with the Tribe's license
and with the intent that
the child be reintegrated with her Indian mother.
On May 31, 2002, the State filed
a motion to terminate father's parental rights, alleging father was unfit
because of his criminal convictions and imprisonment. On the same
date the court conducted a review hearing and the Tribe's attorney, mother,
and a tribal representative participated by phone. During the hearing
the court advised the parties of the filing of the State's motion to terminate
father's parental rights, and further proceedings on that motion were
scheduled. Notwithstanding tribal participation in this scheduling,
notice of the termination hearing **1267
was also sent to the Tribe's attorney by registered mail, restricted delivery,
and the record reflects receipt of same by the attorney.
After an evidentiary hearing
on August 16, 2002, the court terminated the parental rights of father,
concluding inter alia
that father engaged in behavior that was cruel and abusive to the minor
child, that he failed to adjust his circumstances, that he failed to maintain
visitation with the child, and that he was unfit now and for the foreseeable
future. The Tribe did not appear or participate in the hearing.
Father timely appeals.
To
What Extent Did ICWA Apply, and Was There Compliance with its Applicable
Requirements?
Father first claims that the
trial court erred in failing to comply with specific requirements of ICWA,
including: (i) notice requirements; (ii) the requirement
for parental termination to be supported by qualified expert witnesses;
and (iii) the requirement for a specific evidentiary finding beyond
reasonable doubt.
We
acknowledge at the outset that ICWA initially applied to these proceedings
because J.J.G. was an "Indian child" and parental termination
proceedings are expressly defined as "child custody proceedings"
under ICWA, 25 U.S.C. § 1903(4) and (1)(ii) (2000), respectively.
Father was a "parent" as defined in ICWA, 25 U.S.C. § 1903(9).
Moreover, our court has previously held that a non-Indian father
has standing to seek application of ICWA. In
re H.D., 11 Kan.App.2d
531, 532, 729 P.2d 1234 (1986). Other courts have *451
agreed. See, e.g.,
K.N. v. State, 856
P.2d 468, 474 n. 8 (Alaska 1993).
With
regard to the notice issue, father apparently claims that the notice of
the termination hearing technically failed to meet the requirement for
notice to the Tribe. ICWA states:
"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." 25
U.S.C. § 1912(a) (2000).
The record shows that the Crow Tribe of Montana, through its attorney,
was already a participating party in custody proceedings for J.J.G. long
before the termination proceeding started and was present by phone when
the scheduling on the parental termination proceeding was addressed. Moreover,
the formal notice of the termination hearing was received by the Tribe's
attorney in person and the postal receipt card bearing his signature was
returned to the State. Even if there had been some technical non-compliance
in mailing formal notice of the termination proceeding, the Tribe's actual
participation in all custody proceedings regarding J.J.G., including scheduling
for the termination proceedings, renders father's notice argument of no
legal consequence. Under the unique facts of this case, literal
compliance with ICWA's required notice to the Tribe for termination of
parental rights of a non-Indian parent was unnecessary because there was
substantial compliance with the requirements and the Tribe was already
participating through its counsel in related custody proceedings.
Father's
remaining claims of noncompliance with ICWA are based on its technical
evidentiary requirements, including a provision requiring parental termination
to be "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." 25 U.S.C. § 1912(f).
The parties
concede that this requirement was not met, since the termination hearing
*452
included no testimony of "qualified expert witnesses," and we
also note that the court did not make the required finding.
The State argues that although
father may initially have standing to argue application of ICWA, its technical
evidentiary requirements need not be applied under these circumstances
**1268
since tribal interests were fully protected by its participation, by application
of parallel requirements of Kansas law, and by a result that is consistent
with stated intent in ICWA. We agree.
Congressional intent is expressly
stated in ICWA as
"to
protect the best interests of Indian children and to promote the stability
and security of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their families
and the placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture, and by providing for assistance
to Indian tribes in the operation of child and family service programs."
25 U.S.C. § 1902 (2000).
Our Supreme Court has previously
stated that it is appropriate to consult the policies underlying ICWA
and to hold ICWA inapplicable in circumstances where the application of
ICWA provisions would not serve those policies. See In
re Adoption of Baby Boy L.,
231 Kan. 199, 205-06, 643 P.2d 168 (1982). Baby
Boy L. involved proceedings
for the adoption of a child born
out of wedlock to a non-Indian mother and an Indian father. Mother
consented to the adoption on the day the child was born and prospective
adoptive parents filed an adoption petition. The Kiowa Tribe of
Oklahoma sought to intervene, and father and the Tribe sought transfer
of the case to the tribal court. The trial court found ICWA inapplicable,
denying the case transfer. The Supreme Court affirmed the trial
court, holding that the overriding concern of Congress in enacting ICWA
was the maintenance of the family and tribal relationships existing in
Indian homes and to set minimum standards for the removal of Indian children
from their existing Indian environment. Congress did not intend
"to dictate that an illegitimate infant who has never been a member
of an Indian home or culture, and probably never would be, should be removed
from its primary cultural heritage and placed in an Indian environment
over the express objections of its non-Indian mother." 231 Kan. at
206, 643 P.2d 168. The court further stated ICWA "could have
been more *453
clearly and precisely drawn" but to apply ICWA under those circumstances
would violate the policy and intent of Congress rather than uphold them.
231 Kan. at 206, 643 P.2d 168.
Other state courts have recognized
the importance of applying or refusing to apply ICWA consistent with congressional
intent. The Oklahoma Supreme Court refused to apply ICWA in similar
circumstances, basing its decision on the underlying purpose of ICWA--prevention
of removal of Indian children from an existing
Indian family situation and the resultant breakup of the Indian family.
In re Adoption
of D.M.J., 741 P.2d
1386 (Okla.1985). The court stated:
"[T]he
ICWA applies only in those situations where Indian children are being
removed from existing Indian family environments. Under the facts
of this case where the Indian child since 1976 has been in the custody
of her non-Indian mother, where the child is not being removed from the
custody of an Indian parent, and is not being removed from an Indian environment,
the ICWA does not apply." 741 P.2d at 1389.
Here, the termination of father's
parental rights would not cause J.J.G. to be removed from custody of an
Indian parent or from her extended Indian family. The record shows that
the permanency plan was made for placement of J.J.G. with her maternal
half-sister and brother-in-law in Montana with the ultimate goal of integrating
J.J.G. into the home of her Indian mother. Under the unique facts
of this case, literal compliance with ICWA's evidentiary requirement that
parental termination to be "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," was unnecessary
because the Tribe elected not to challenge the termination of parental
rights and termination of the non-Indian parent's rights was consistent
with reintegration of the child with
his or her native heritage. We reject father's claims of error in
this regard.
**1269
Was the Termination
of Parental Rights Supported by Substantial Competent Evidence?
*454
The standard of review in a termination of parental rights is whether
substantial competent evidence supports the trial court's findings. The
appellate court does not reweigh the evidence or pass upon the credibility
of witnesses, and the evidence is reviewed in the light most favorable
to the party prevailing below. Although the State has the burden
to prove parental unfitness by clear and convincing evidence before the
trial court, that standard does not affect the appellate court's scope
of review. See In re
S.M.Q., 247 Kan. 231,
234, 240, 796 P.2d 543 (1990).
The Kansas Code for the Care
of Children provides that the court may terminate parental rights when
the court finds by clear and convincing evidence that a parent is unfit
by reason of conduct or condition which renders the parent unable to care
properly for the child and the conduct or condition is unlikely to change
in the foreseeable future. K.S.A.2003 Supp. 38-1583(a). The
statute lists nonexclusive factors the court shall consider in determining
if severing parental rights is in the best interest of the child. K.S.A.2003
Supp. 38- 1583(b). While proof of any one of these statutory grounds
may be sufficient to terminate parental rights, the court should consider
all applicable factors, giving
primary consideration to the physical, mental, or emotional condition
and needs of the child. K.S.A.2003 Supp. 38-1583(e).
The trial court found father
to be unfit by reason of conduct or condition which rendered him unable
to care properly for J.J.G. and such conduct or condition was unlikely
to change in the foreseeable future. In making this determination,
the court considered the following statutory factors under K.S.A.2003
Supp. 38-1583:(b)(2)--conduct toward the child of physically, emotionally,
or sexually cruel or abusive nature; (b)(4)--physical, mental or
emotional neglect of the child; (b)(5)--conviction of a felony and
imprisonment; (b)(7)--inability to rehabilitate the family through
reasonable efforts of appropriate public or private child care agencies;
(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;
(c)(1)--failure to assure care of the child in the parental home
when able to do so; (c)(2)--failure to maintain regular visitation,
contact, or communication with the child; and (c)(3)--failure *455
to carry out a reasonable plan approved by the court directed to the reintegration
of the child into the parental home.
Father complains that the trial
court did not consider as a mitigating factor that he has been incarcerated
and was unable to attend parenting classes or to maintain visitation. Moreover
he notes that his conviction is on appeal and that these mitigating circumstances
merited "different
standards," citing In
re Adoption of F.A.R.,
242 Kan. 231, 236, 747 P.2d 145 (1987).
We agree with the trial court, however, that father's convictions
do not require affirmance on appeal in order to serve
as presumptive proof of unfitness. In
re M.E.B.,
29 Kan.App.2d 687, 29 P.3d 471 (2001). Father's multiple convictions
for rape and sexual exploitation of his own daughter are
presumptive evidence that he is unfit for parenthood. K.S.A. 38-
1585(a)(2). Moreover, even if incarceration mitigated father's parent education or
visitation, we conclude that termination of father's rights was justified
for numerous other reasons that are supported by substantial competent
evidence.
Affirmed.
32 Kan.App.2d 448, 83 P.3d 1264
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