In re E.L.
| Decision Date | 24 November 2021 |
| Docket Number | 123,707 |
| Citation | 61 Kan.App.2d 311,502 P.3d 1049 |
| Parties | In the INTEREST OF E.L., A Minor Child. |
| Court | Kansas Court of Appeals |
Jordan E. Kieffer, of Jordan Kieffer, P.A., of Bel Aire, for appellant natural mother.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before Green, P.J., Cline, J., and Burgess, S.J.
E.L. was taken from B.S. (Mother) shortly after birth, based mainly on evidence of significant physical abuse of E.L.'s older sibling, D.L., Mother challenges the sufficiency of the evidence in support of the district court's eventual termination of her parental rights to E.L. under Kansas law and its determination under the Indian Child Welfare Act (ICWA) that the State made "active efforts" to prevent the breakup of the Indian family. She also claims the court should have excluded the State's expert witness from the termination hearing since the State did not provide an expert witness disclosure under K.S.A. 2020 Supp. 60-226(b)(6).
We find clear and convincing evidence supports the district court's termination of parental rights. We also find there was clear and convincing evidence that the State made active efforts under ICWA to prevent the breakup of the Indian family. We find evidence beyond a reasonable doubt supports the district court's determination that continued custody of E.L. by the parents was likely to result in serious emotional or physical damage to E.L. Last, we find Mother has not established the State had to disclose its expert. We affirm the district court's judgment.
On October 21, 2019, officers were dispatched to Saint Joseph Hospital in Wichita, Kansas, for a welfare check of a newborn baby, E.L. When they arrived, a hospital social worker reported that multiple nurses and doctors had complained Mother was not following their instructions on how to properly care for E.L. Nursing staff had to educate the teenage parents multiple times on how to hold E.L. and on safe sleep, out of concern the parents were not supporting E.L.'s head and were laying E.L. in ways that were obstructing E.L.'s airway. Nursing staff also twice counseled Mother about overfeeding E.L. Mother resisted their advice and instructions. Upon contacting the Kansas Department for Children and Families (DCF), the hospital social worker learned Mother was flagged for a pending child endangerment case. The parents lost custody of D.L. about a year before, after his admittance to the hospital at five months old with multiple fractures.
Upon being contacted regarding E.L., a DCF social worker, Marisa Thorne, interviewed the parents at the hospital. When Thorne asked about D.L.'s case, they denied knowing how D.L. was injured and even denied that he sustained any injury at all. They both accused the hospital of mixing up D.L.'s x-rays because they claimed the date of birth they had seen on the x-rays was incorrect.
Initiation of CINC proceedings
After the State initiated child in need of care (CINC) proceedings, the district court placed E.L. in the temporary custody of DCF and ordered DCF or its designee to prepare a case plan. The court also found ICWA applied, since Mother is an enrolled member of the Citizen Potawatomi Nation (the Tribe).
On November 21, 2019, both parents received the same case plan from DCF's designee, Saint Francis Ministries (SFM). The plan required each parent to complete the following: (1) sign all necessary releases for SFM; (2) obtain and maintain appropriate housing; (3) obtain and maintain full-time employment and provide documentation to SFM; (4) abstain from the use of illegal drugs, alcohol, and any prescription medication without a valid prescription throughout the duration of the case; (5) complete a substance abuse evaluation and follow all recommendations; (6) submit to random urinalysis (UA) and hair follicle testing; (7) complete a series of domestic violence classes; (8) complete a WASAC protective parenting class; and (9) complete a clinical assessment and follow any resulting recommendations.
At the November 25, 2019 adjudication hearing, the district court granted the Tribe's motion to intervene. Upon the State's request, the court placed E.L. in an Indian home, which the Tribe selected and where E.L.'s sibling, D.L., was located. Since the Tribe-approved home was in Oklahoma, the Tribe agreed to transport E.L. to Wichita for weekly visits with the parents. An evidentiary hearing was set for February 26, 2020.
Relying mainly on D.L.'s injuries, the State moved to terminate the parental rights of both parents a few weeks later, based on:
At the February 26, 2020 adjudication hearing, the district court found E.L. to be a child in need of care and scheduled a hearing on the termination of parental rights. In the meantime, it adopted the case plan as orders of the court and ordered that visitation be at the discretion of DCF or DCF's designee.
Visitation issues
On March 17, 2020, the Tribe notified SFM that it had issued an out-of-state travel ban because of the COVID-19 pandemic, so it could no longer transport E.L. for weekly visits to Kansas. The Tribe offered to reimburse the parents for their travel costs if they would be willing to travel to Oklahoma for in-person visits. The Tribe understood that while neither parent had a vehicle, Mother's parents had one.
The parents did not travel to Oklahoma for visitation, so SFM set up weekly virtual visits with E.L. The virtual visits were SFM's idea. SFM personnel contacted the Tribe at least monthly, and sometimes multiple times per month, to ask about the travel ban and the Tribe's ability to transport E.L. for in-person visits. The Tribe lessened its travel restrictions on September 2, 2020, but it was only able to transport E.L. for in-person visits once per month because of a staff shortage. The Tribe offered to arrange for additional in-person visitation at another tribe's facility in Tonkawa, Oklahoma, to minimize the parents' drive, but the parents were unable to take advantage of this offer. SFM arranged for the virtual visits to continue, so the parents then had one in-person and three virtual visits each month.
Termination hearing
The district court held a termination hearing for both parents on October 26 and 27, 2020. The State presented testimony from several witnesses, including two law enforcement officers and a physician involved in D.L.'s case, along with social workers involved in E.L.'s case from the Tribe, DCF (Thorne), and SFM. Father testified and called another SFM social worker to testify on his behalf. Mother testified and called her juvenile case worker to testify on her behalf.
Dr. Kerri Weeks, a child abuse pediatrician who has been involved in the child-at-risk evaluation team for over 10 years, testified about her consultation on D.L.'s injuries. She said D.L. was five months old when the parents brought him to the hospital on September 11, 2018, for right leg pain. The parents provided no history of trauma, and he had visible bruising. The parents reported D.L. had just rolled over for the first time the prior week.
During D.L.'s examination, hospital staff discovered several injuries: (1) a recent right femur fracture, (2) a skull fracture of undetermined age, (3) an older proximal right radius fracture that was healing, and (4) two rib fractures. Dr. Weeks explained that any fracture in a nonmobile infant like D.L. is concerning because, at that age and stage of development, they are unable to injure themselves. She also indicated there should be an adequate history explaining the injury.
Dr. Weeks believed D.L.'s femur fracture was an abusive injury. She dismissed Mother's later explanation that D.L.'s foot had been caught in his crib slats as a possible cause. While she believed the skull fracture was the only injury that could have potentially been accidental, in the context of the many other abusive injuries, she believed it was also an abusive injury. She testified the pattern of bruises in the soft part of D.L.'s cheek is a common pattern in young infants with abuse, and rib fractures are also highly associated with infant shaking and abusive head trauma. The combination of skull and rib fractures also evidenced abuse since these injuries are seen together in abusive head trauma. She explained how the x-rays revealed the fractures happened at different times, since the right radius and rib fractures showed signs of healing. The different time frames for the fractures led her to believe the abuse was ongoing.
Dr. Weeks described the necessity for a follow-up consultation in two weeks for young children suffering from suspected abuse, to look for more fractures which may have been difficult to see on the initial visit. D.L.'s follow-up consultation revealed two more fractures, one in his right ulna and one in his left humerus. She confirmed these two fractured arms also suggested abuse in a five-month-old child. In her opinion, D.L. was physically abused several times. Dr. Weeks testified she believed if D.L. was returned to the parents, he would end up dead since the abuse was progressing. She said she would be "very hesitant to put a child in an environment where this type of abuse has occurred."
Jessica Helwi, a patrol officer with the Wichita Police Department, and LaTavia Allen, a detective from that...
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