A.P., In Interest of

• Citation: 25 Kan.App.2d 268,961 P.2d 706
• Parties: In the Interest of A.P., a Child Under the Age of 18 Years, To-Wit: 0
• Decision Date: 02 July 1995
• Court: Court of Appeals of Kansas

Page 706

961 P.2d 706

25 Kan.App.2d 268

In the Interest of A.P., a Child Under the Age of 18 Years,

To-Wit: 07/02/95.

No. 80164.

Court of Appeals of Kansas.

July 2, 1998.

Syllabus by the Court

1. When child custody proceedings involve a parent or child of American Indian heritage, the proceedings are governed by the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (1994), as well as state law.

2. Provisions of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (1994), are discussed and applied.

3. Before an Indian parent's or custodian's rights 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. Rights of an Indian parent may be terminated only when 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 is likely to result in serious emotional or physical damage to the child.

5. A state court must transfer a proceeding involving an Indian child not domiciled within the reservation to the tribal court of the tribe of which the child is a member, except in one of three circumstances: (1) an express declination by the tribal court; (2) objection by either parent to the transfer; or (3) good cause not to make the transfer.

6. Good cause not to transfer the proceedings to a tribal court exists, inter alia, when the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.

7. A district court's refusal to transfer a case to the tribal court requires clear and convincing evidence of good cause. On appeal, the record is reviewed for substantial competent evidence to support the trial court's decision that good cause existed not to transfer the case to the tribal court.

8. To terminate the rights of an Indian parent, the district court must complete a two-step process. First, the court must apply state law requiring clear and convincing evidence of the unfitness of the parent, and, second, the court must find beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child, which finding must be supported by the testimony of an expert witness qualified under the provisions of the Indian Child Welfare Act.

9. In a termination of parental rights proceeding involving an Indian parent, the State must show by clear and convincing evidence that active efforts had been made to provide remedial services and rehabilitative programs to the parent designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

10. On appeal in a termination of parental rights case, the court reviews the record from the district court to determine whether substantial competent evidence supports the findings of the trial court that active efforts were made to rehabilitate the family and that those efforts were unsuccessful.

11. The record is examined in a termination of parental rights case involving an Indian mother, and it is determined that the trial court did not err in terminating the mother's parental rights.

Craig A. Stancliffe, Lawrence, for appellant natural mother.

Willow Head, Legal Intern, David P. Zabel, Assistant District Attorney, and Christine K. Tonkovich, District Attorney, for appellee State of Kansas.

Before ELLIOTT, P.J., MARQUARDT, J., and WAHL, Special Judge.

WAHL, Special Judge:

Natural mother, C.P., appeals the termination of her parental rights to A.P., alleging that the trial court failed to comply with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901 et seq. (1994) and that the State failed to produce evidence to prove beyond a reasonable doubt that the child's continued residence with C.P. would result in harm to A.P.

C.P., an enrolled member of the Oglala Sioux Nation, Pine Ridge, South Dakota, was living in Lawrence attending Haskell Indian Nations University when she became pregnant with A.P. A.P. was born prematurely, in distress and in need of special medical attention, on July 2, 1995, in South Dakota. A.P. came to the attention of Kansas juvenile authorities on January 22, 1996, after C.P. left him in the care of a woman in Lawrence whom she barely knew and then failed to return for 2 days. C.P. was contacted by the Department of Social and Rehabilitation Services (SRS), and an investigation was made into the complaint. C.P. reported that she knew the caretaker only through a mutual friend and did not know the caretaker's last name. She left the child an extra 2 days because she was "snowed in" in Kansas City and was unable to get to a phone to call. C.P. knew the caretaker to be under investigation for "smoking weed and being mean to her daughter." The social worker was not allowed to see A.P. when she visited C.P.'s residence. After a conversation with the woman who had taken care of A.P., SRS sought and received emergency protective orders for A.P. He was removed from his mother's custody on February 5, 1996. At that time, A.P. was placed in a foster home with an American Indian parent in Lawrence with whom he stayed throughout the pendency of this proceeding.

SRS began a reintegration plan for the family through a case planning conference on February 21, 1996, at which time C.P. was not present. C.P. visited A.P. on March 29, 1996, for the first time after the February 5 removal. Visits were scheduled for April 11, 19, 24, and May 2 while C.P. was to be receiving inpatient alcohol treatment from the Women's Recovery Center in Topeka. C.P. attended all but one of these supervised visits. On one occasion, she used the SRS voucher to travel from Topeka to Kansas City rather than to Lawrence. She reported to the social worker in early May that she had completed treatment and would be available for regular visits scheduled for Fridays. A review of the dates of visitation reveals that C.P. arrived for scheduled visits about three times a month and then she would fail to appear for a visit. In all, during the year after A.P. was removed from her care, C.P. visited the child 17 times. During the period August 9, 1996, through January 17, 1997, C.P. made no visits or attempted any contact with the child. When she did visit after this prolonged absence, A.P. did not recognize C.P.

C.P. did not complete the treatment program at the Women's Recovery Center as she reported she had, partly because of a lack of dedication to the program and conflicts with the staff. She was later offered an opportunity to receive inpatient treatment at the Choctaw Nations Treatment Center, but she also had conflicts with the staff at that facility. C.P. received individual counseling with Dr. Suzanne Lange of Haskell Indian Nations University. Dr. Lange is a clinical psychologist with extensive experience in the culture of the Sioux people. C.P. was seeing Dr. Lange before A.P. was born, but was not consistent in her attendance of sessions. C.P. saw Dr. Lange a total of 22 times, 8 times during 1996, but attended no sessions after July 11, 1996, even though Dr. Lange was available for appointments after that date. The therapy was not considered successful and Dr. Lange's professional impressions were as follows: C.P. was not a capable mother because of her problems with alcohol dependence and her habit of getting involved with violent relationships; it would take 2 years of intensive therapy after successful completion of alcohol abuse treatment for C.P. to be a functional, good parent; C.P. would present a danger to A.P., albeit not intentionally, because of her heavy alcohol abuse; C.P.'s neglect of A.P. was not a function of her cultural distinctiveness as an American Indian.

Evidence was presented by Marcia Seagraves, a drug and alcohol counselor at Haskell, Dr. Jean Dirks, a psychologist at Bert Nash Community Mental Health Center, and Andy Jackson, program director at Haskell Health Center Drug and Alcohol Program. All of these experts concluded that C.P. had a severe alcohol abuse problem, that she was untruthful, and that she failed to complete any treatment options available to her prior to February 1997, when the petition for termination of parental rights was filed. Social worker Sherri Williams detailed the efforts made by SRS to reintegrate A.P. with his natural mother. Efforts were also made to coordinate treatment through tribal authorities at Pine Ridge.

C.P. presented evidence by Dr. Dennis Karpowitz, a clinical psychologist. Dr. Karpowitz has treated American Indians in his private practice and has written articles on parenting and parenting evaluations. Dr. Karpowitz was qualified as a psychological expert with the court to determine the extent of his knowledge of American Indian issues. Dr. Karpowitz testified that he was acquainted with C.P. prior to his evaluation of her because they attended the same church in Lawrence. He did not believe the association between C.P. and himself through the church colored his recommendation. Dr. Karpowitz suggested the trial court place A.P. with an organization from the Pine Ridge Reservation until C.P. was able to assume her duties as a parent; however, he had never contacted the organization to determine whether the proposal was a feasible one. The district attorney's office sent notice to the office recommended by Dr. Karpowitz, but the record reveals no response.

Cheri Brown, LCSW, also testified for C.P. Ms. Brown met with C.P. for three sessions and reported that C.P. was alcohol free after those sessions. This assessment was based on C.P.'s self-report. Prior to Ms. Brown's meetings, C.P. met with a different social worker at the same clinic for six sessions. Ms. Brown wrote a letter to the court dated July 23, 1997,...