|
(Cite
as: 41 Kan.App.2d 927, 206 P.3d 57) |
Court
of Appeals of Kansas.
In
the Interest of M.F., a Child Under the age of 18 Years.
No.
100,845.
May
1, 2009.
Review
Granted Sept. 2, 2009.
**58
*927
Syllabus
by the Court
1.
The Kansas Code for Care of Children, K.S.A. 38-1501 et
seq.,
was in effect at the time these proceedings were initiated and applied to
proceedings concerning any child who appeared to be a CINC. See K.S.A.
38-1503(a). The Revised Kansas Code for Care of Children, K.S.A.2008 Supp.
38-2201 et
seq.,
became effective January 1, 2007, and applies to proceedings concerning a child
that is possibly a CINC. See K.S.A.2008 Supp. 38-2203(a). However, neither
mentioned code applies when the proceedings involve an Indian child, because in
those instances, the Indian Child Welfare Act **59
(ICWA), 25 U.S.C. ? 1901 et
seq.
(2006) applies.
2.
The ICWA defines an ?Indian child? as an unmarried person under the age of 18
who is either a tribe member or who is eligible for tribe membership and is the
biological child of a tribe member.
3.
The ICWA establishes both jurisdictional and substantive procedures for custody
determinations of Indian children.
John
W. Leighty, of Olathe, for appellant natural mother.
Steven
J. Obermeier, assistant district attorney, and Stephen M. Howe, district
attorney, for appellee State of Kansas.
Dennis
J. Stanchik, of Olathe, guardian ad litem.
Before
RULON, C.J., GREENE and HILL, JJ.
RULON,
C.J.
S.F.,
the biological mother of M.F., appeals the termination of her parental rights to
M.F., arguing the district court failed to follow the Indian Child Welfare Act
(ICWA), 25 U.S.C. ? 1901 et
seq.
(2006), in the proceedings which ultimately resulted in the termination of
S.F.'s parental rights. We conclude the ICWA *928
was not properly followed and reverse and remand for further
proceedings.
On
November 6, 2006, the State filed a petition alleging M.F. was a child in need
of care (CINC). At that time, the State had no information regarding whether
M.F. had Native American heritage. The district court appointed a guardian ad
litem (GAL) for M.F. and held a custody hearing the next day. M.F.'s alleged
father, D.J., appeared at the hearing despite the fact he was not listed on
M.F.'s birth certificate. S.F. did not appear. The district court ordered the
State to complete service on the mother. The State requested temporary custody
of M.F. because of S.F.'s homelessness and possible drug use, because S.F.
abandoned M.F. at the hospital, and because there was a question of paternity
and whether the alleged father could care for M.F. The district court ordered
genetic testing and determined an emergency existed to place M.F. in the custody
of the Department of Social and Rehabilitation Services (SRS) with the authority
to find suitable placement.
The
district court later became aware of M.F.'s possible Native American heritage
and sent a notice of the CINC proceedings to the Northern Arapaho Tribe (Tribe).
The State informed the district court genetic testing confirmed D.J. was M.F.'s
father. D.J. did not contest the claims in the petition that M.F. was a CINC,
and a trial was set for a CINC determination as to the mother.
Eventually,
the Tribe sent notice of the Tribe's intent to intervene in the case. The Tribe
requested to be notified of all hearings and actions in the matter. The State
filed the Tribe's notice with the district court. Included with the Tribe's
notice was a document stating a Tribe enrollment technician had determined M.F.
was not enrolled with the Tribe, but M.F. would be eligible for
enrollment.
Because
S.F. had not stipulated M.F. was a CINC, the district court scheduled a hearing
to make that determination. At the beginning of the hearing, S.F.'s counsel
reminded the district court the ICWA applied. The State was unaware of whether
the Tribe had been notified of the hearing. The GAL argued the Tribe had
nonetheless received proper notice so the hearing could proceed. However, the
GAL argued the district court should apply the *929
ICWA's higher standard of proof. S.F.'s counsel agreed if the district court
applied the higher standard of proof such proof would sufficiently comply with
the ICWA. The district court stated: ?I think out of an abundance of caution
we'll go ahead and apply the other standard. I'm not sure that is absolutely
necessary, but it is not going to hurt anything to apply that higher standard.
We'll go ahead and proceed today.?
The
only testimony offered at the hearing was the social worker who was the case
manager for M.F.'s case. At the time of the hearing, M.F. had been hospitalized
for 2 months. According to the case manager, S.F. had not called to check on
M.F. and did not know M.F. was hospitalized. The case **60
manager testified there was an element of danger and risk to M.F. by S.F. not
responding to the hospital because a potential caregiver would need to learn how
to care for M.F. after M.F. was released from the hospital. The State argued the
evidence complied with the ICWA standard of proof beyond a reasonable doubt that
M.F. was in danger and needed immediate placement. The GAL additionally argued
there was good cause for departing from the ICWA's placement preferences because
neither parent was capable of handling M.F. or providing for M.F.'s special
needs; no extended family members had come forward; and there was nothing more
than an indication the Tribe would intervene. S.F.'s attorney argued the
district court should apply the ICWA standard, which required testimony by an
ICWA qualified expert, and the case manager who testified was not a qualified
expert. The State's expert did not testify she had ever dealt with Indian issues
or Indian children. The State contended it had met an exception under the ICWA
by showing dangerousness, so there was no need for testimony from an expert in
Indian child welfare. The State claimed it just needed an expert in child
welfare.
The
district court found the State had met its burden, and the case manager
testified appropriately as an expert in the matter. Additionally, the district
court found the evidence was clear beyond a reasonable doubt M.F. was in danger
and out-of-home placement was immediately necessary for the child. The court
held there was good cause to depart from any Indian placement because neither
*930
parent could care for the child, no family had come forward, and the Tribe had
done nothing but indicate a desire to intervene. The district court found M.F.
was a CINC pursuant to K.S.A. 38-1502(a)(2) and set the matter over for
disposition after finding continued out-of-home placement was necessary. The
district court ordered notice be given to the Tribe. Importantly, the district
court never
issued a journal entry adjudicating M.F. a CINC.
Eventually,
the State filed a motion to terminate the parental rights of S.F. and D.J., or
for appointment of a permanent custodian. The district court filed a permanency
plan in which it found reintegration of the family was not a viable alternative
because M.F. had been in SRS custody since birth; M.F. had a serious medical
condition; and there was a lack of effort by the parents.
The
district court held a pretrial hearing and counsel for S.F. stated there was no
journal entry for the CINC finding and there had not been any expert testimony,
which was required in order make a CINC determination under the ICWA. The
district court directed the State to journalize the CINC finding. However, no
such journal entry is contained in this record.
S.F.
filed a motion to transfer jurisdiction to the Tribal Court of the Northern
Arapaho Tribe (Tribal Court) pursuant to 25 U.S.C. ? 1911(b) (2006). The GAL
argued good cause existed not to transfer jurisdiction of the case because the
motion was untimely and it would be inconvenient to transfer the case to
Wyoming, the location of the Tribal Court. The district court held a hearing on
S.F.'s motion to transfer, and ultimately, the district court denied the
motion.
At
the hearing on the issue of termination of parental rights, S.F. appeared.
Before evidence was presented, the district court noted a representative from
the Tribe had contacted the district court and requested to participate in the
trial by telephone, but the court was unable to arrange for such participation.
S.F.'s counsel again argued the district court was not complying with the ICWA.
Testimony was taken from Lindsey Howes, a case manager who had been involved in
M.F.'s case since M.F. was placed in State custody. Howes recited the case
history and all the contacts she had with S.F. and D.J. In Howes' opinion, M.F.
needed permanency *931
through an adoptive home that could provide for M.F.'s medical care and needs.
Howes did not believe S.F. could meet M.F.'s needs, which required a parenting
ability beyond even normal parenting abilities due to M.F.'s extreme medical
needs.
S.F.
testified at trial she knew of two family members who were interested in caring
for M.F. if the district court determined S.F. could not regain custody of
M.F.
**61
Ultimately, the district court entered an order terminating the parental rights
of S.F. and D.J. to M.F. S.F. timely appeals. D.J. does not appeal.
On
appeal, S.F. argues the district court failed to comply with the ICWA in any of
the proceedings before the district court. This issue requires us to interpret
various statutory provisions of the ICWA, and interpretation of a statute is a
question of law over which appellate courts have unlimited review. In
re M.B.,
39 Kan.App.2d 31, 36, 176 P.3d 977 (2008).
The
Kansas Code for Care of Children, K.S.A. 38-1501 et
seq.,
was in effect at the time these proceedings were initiated and applied to
proceedings concerning any child who appeared to be a CINC. See K.S.A.
38-1503(a). The Revised Kansas Code for Care of Children, K.S.A.2008 Supp.
38-2201 et
seq.,
became effective January 1, 2007, and applies to proceedings concerning a child
that is possibly a CINC. See K.S.A.2008 Supp. 38-2203(a). However, neither
mentioned code applies when the proceedings involve an Indian child, because in
those instances, the ICWA applies. K.S.A. 38-1503(a); K.S.A.2008 Supp.
38-2203(a). The ICWA defines an ?Indian child? as an unmarried person under the
age of 18 who is either a tribe member or who is eligible for tribe membership
and is the biological child of a tribe member. 25 U.S.C. ? 1903(4) (2006). Here,
the Tribe determined M.F. was eligible for Tribe membership, and no one disputes
on appeal that M.F. is an Indian child or that the ICWA applies.
[1]
The State argues we do not need to determine whether the ICWA was properly
followed because S.F. failed to argue these issues before the district court. We
disagree. S.F. argued at least twice the district court had not relied on the
necessary expert testimony in making the CINC adjudication. This issue was
properly *932
preserved for appeal, and in any event, this issue can be raised for the first
time on appeal because 25 U.S.C. ? 1914 states that ?any parent ... may petition
any court of competent jurisdiction to invalidate such action upon a showing
that such action violated any provision of [25 U.S.C. ?? 1911, 1912, and 1913].?
See In
re S.M.H.,
33 Kan.App.2d 424, 430, 103 P.3d 976, rev.
denied
279 Kan. 1006 (2005).
[2][3]
The ICWA establishes both jurisdictional and substantive procedures for custody
determinations of Indian children. In
re A.P.,
25 Kan.App.2d 268, 274, 961 P.2d 706 (1998). Jurisdictionally, S.F. argues the
district court erred in denying her motion to transfer jurisdiction to the
Tribe. Tribal courts have jurisdiction in custody cases involving children who
reside on the reservation or who are wards of the tribe. 25 U.S.C. ? 1911(a).
Concurrent jurisdiction exists with state courts over children not domiciled on
the reservation. 25 Kan.App.2d at 274, 961 P.2d 706. Cases involving children
not domiciled on the reservation shall be transferred to the jurisdiction of the
tribe upon a request by either parent or the child's tribe, absent an objection
by either parent, declination by the tribal court, or good cause not to
transfer. 25 U.S.C. ? 1911(b).
[4][5]
In reviewing the district court's decision to decline to transfer jurisdiction,
we determine whether there is clear and convincing evidence to support the
district court's determination there was good cause for the state trial court to
refuse to transfer to the tribal court. See In
re A.P.,
25 Kan.App.2d at 276-77, 961 P.2d 706 (Upon review of the congressional intent,
we conclude the standard most consistent with the ICWA requires clear and
convincing evidence of good cause for a state trial court to refuse to transfer
to the tribal court.?). Consequently, we must determine whether, after viewing
all the evidence in the light most favorable to the State, there was sufficient
evidence from which a rational factfinder could have found it highly probable
that good cause existed not to transfer jurisdiction. See In
re B.D.-Y.,
286 Kan. 686, 705-06, 187 P.3d 594 (2008).
Although
the ICWA does not define ?good cause? to refuse a transfer request, the Bureau
of Indian Affairs (BIA) has adopted criteria to use when making a good cause
determination. Included *933
in the reasons for finding good cause not to transfer exists are if ?[t]he
proceeding was at an advanced stage when the petition to transfer was received
and the petitioner did not file the petition **62
promptly after receiving notice of the hearing? and if ?[t]he evidence necessary
to decide the case could not be adequately presented in the tribal court without
undue hardship to the parties or the witnesses.? 44 Fed.Reg. 67,591 (1979); see
25 Kan.App.2d at 275, 961 P.2d 706.
Here,
the district court cited the applicable BIA guidelines and found good cause
existed not to transfer because the proceedings were at an advanced stage; the
motion was untimely; and the case could not be presented in the Tribal Court
without undue hardship to the parties and witnesses. We conclude the district
court's decision is supported by clear and convincing evidence. S.F. did not
file her motion to transfer jurisdiction until 15 months after the proceedings
against her interests first began. Transfer to a court in Wyoming at such a late
stage in the process would have created an undue hardship. Furthermore, the
record on appeal reveals while the Tribe did not expressly decline jurisdiction
of the case, the Tribe withdrew its own request to have the case transferred to
its jurisdiction, which further supports the district court's decision not to
transfer jurisdiction of the case. See 25 Kan.App.2d at 275-76, 961 P.2d 706
(finding that when the tribe was aware of the case and elected not to intervene,
the failure to intervene could not be considered a declination of jurisdiction,
but it could be used to support a finding of good cause not to transfer the
case).
[6]
S.F.'s remaining arguments concern the district court's failure to follow the
ICWA's substantive procedures. This court has adopted a two-step process for
dealing with the termination of parental rights when the ICWA applies. Kansas
statutory law for termination of parental rights is applied first, and then the
ICWA standards are applied. See In
re S.M.H.,
33 Kan.App.2d at 431, 103 P.3d 976. Here, regardless of whether the district
court followed Kansas statutes, clearly the district court failed to properly
comply with the requirements of the ICWA.
Before
an Indian child can be placed in foster care, it must be determined, based on
clear and convincing evidence including testimony*934
by a qualified expert witness, that continued custody of the child by the parent
?is likely to result in serious emotional or physical damage to the child.? 25
U.S.C. ? 1912(e) (2006). Before parental rights may be terminated, there must be
a determination made, supported by evidence beyond a reasonable doubt including
testimony of a qualified expert witness, ?that the continued custody of the
child by the parent ... is likely to result in serious emotional or physical
damage to the child.? 25 U.S.C. ? 1912(f). Furthermore, when the State is
seeking to place an Indian child in foster care or is seeking termination of
parental rights to an Indian child under state law, the State must ?satisfy 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.? 25 U.S.C. ? 1912(d).
None
of the above ICWA provisions were followed by the district court in this case
despite S.F.'s counsel repeated requests the district court comply with the
ICWA. The district court was aware the ICWA applied and was aware the ICWA
required different standards than state law. However, the district court failed
to journalize its CINC findings, so there is no evidence of compliance with the
ICWA standards in that determination. Although there is a journal entry of the
termination of parental rights, such determination was not supported by proper
evidence. The witness who testified at the CINC hearing did not testify she was
a qualified expert in determining whether an Indian child will suffer damage by
continuing to remain in the custody of his parents. The same witness was the
only person testifying for the State at the termination of parental rights trial
as well.
Testimony
from a qualified expert witness is a requirement before a child can be
adjudicated a CINC and before these parents' rights can be terminated. 25 U.S.C.
? 1912(e) and (f). The BIA guidelines offer support for which individuals are
?most likely to meet the requirements for a qualified expert witness for
purposes of Indian child custody proceedings,? including a ?member of the Indian
child's tribe who is recognized by the tribal community as knowledgeable in
**63
tribal customs as they pertain to family organization*935
and childrearing practices,? and a lay expert witness who has ?substantial
experience in the delivery of child and family services to Indians, and
extensive knowledge of prevailing social and cultural standards and childrearing
practices within the Indian child's tribe.? 44 Fed.Reg. 67,593 (1979). Although
the final example is simply a ?professional person having substantial education
and experience in the area of his or her specialty,? our court has determined
the ICWA requires a witness be qualified as an expert and the witness testify
that evidence existed to support the State's burden under the ICWA. 44 Fed.Reg.
67,593 (1979). See In
re S.M.H.,
33 Kan.App.2d at 434-35, 103 P.3d 976. There was no such testimony in this
case.
On
appeal the State contends notice was given to the Tribe and the Tribe did not
intervene. Notice is required to be given to the tribe pursuant to 25 U.S.C. ?
1912(a), and pursuant to 25 U.S.C. ? 1911(c), the tribe can intervene at any
point in the proceedings. The ICWA still applies regardless of the failure of
the Tribe to intervene.
Here
the district court failed to comply with the requirements mandated by the ICWA
for child custody proceedings involving an Indian child. We reverse and remand
for the district court to comply with the ICWA's requirements at each step of
the proceedings.