H.A.M., In Interest of, 79562

• Decision Date: 10 July 1998
• Docket Number: No. 79562,79562
• Citation: 25 Kan.App.2d 289,961 P.2d 716
• Parties: In the Interest of H.A.M., J.F.D., and W.D.M., Minor Children Under the Age of Eighteen Years.
• Court: Kansas Court of Appeals

Page 716

961 P.2d 716

25 Kan.App.2d 289

In the Interest of H.A.M., J.F.D., and W.D.M., Minor

Children Under the Age of Eighteen Years.

No. 79562.

Court of Appeals of Kansas.

July 10, 1998.

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 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. 38-1501 et 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.

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 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.

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.

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 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 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...