In re M.F.

• Decision Date: 05 February 2010
• Docket Number: No. 100,845.,100,845.
• Parties: In the Interest of M.F., a Child Under the Age of 18 Years.
• Court: Kansas Supreme Court

225 P.3d 1177

In the Interest of M.F., a Child Under the Age of 18 Years.

No. 100,845.

Supreme Court of Kansas.

February 5, 2010.

John W. Leighty, of Olathe, argued the cause and was on the briefs for appellant natural mother.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, was with him on the brief for appellee State of Kansas.

Dennis J. Stanchik, of Olathe, argued the cause and was on the briefs for appellee guardian ad litem.

The opinion of the court was delivered by LUCKERT, J.:

The biological mother of M.F. appeals a decision to terminate her parental rights, arguing the district court failed to comply with the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2006). The ICWA standard for termination of parental rights is "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) (2006). The mother argues the State failed to present an ICWA qualified expert witness in either the child in need of care (CINC) proceeding or in the subsequent hearing to terminate parental rights. The Court of Appeals agreed with her argument and reversed the district court. In re M.F., 41 Kan.App.2d 927, 206 P.3d 57 (2009).

On review of that decision, we affirm the Court of Appeals, concluding that the ICWA heightens the requirements for an expert's qualifications beyond those normally required in a proceeding governed solely by state statutes. We further hold that Kansas district courts should consider the legislative history of the ICWA and the Department of the Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584 (1979), in determining if a witness meets the heightened standard. In this case, there was no evidence that the two social workers who testified were members of the child's tribe, had substantial experience in the delivery of child and family services to Indians, had extensive knowledge of prevailing social and cultural standards and childrearing practices within the child's tribe, or had substantial education and experience in the area of social work. Thus, the witnesses were not qualified expert witnesses under the ICWA, and there was no expert testimony to support the district court's decision as required by the ICWA. Because this error is not harmless, we reverse and remand for new proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

M.F. was born on October 24, 2006, with special medical needs that required an extended hospitalization. His mother, S.F., was discharged after his birth; she then had no further contact with the hospital. Two weeks after M.F.'s birth, the State filed a CINC proceeding. 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; his mother, S.F., did not. At the hearing, the State requested temporary custody of M.F. because of the mother's homelessness, her possible drug use, and her abandonment of M.F. at the hospital. Regarding D.J.'s ability to provide care, the State argued that paternity was unknown and that D.J. was physically unable to care for M.F. because of his own disabilities. The district court ordered genetic testing, ordered that service be completed on the mother, and determined an emergency existed to place M.F. in the custody of the Kansas Department of Social and Rehabilitation Services with the authority to find suitable placement.

Subsequent genetic testing confirmed D.J. was M.F.'s father. D.J., however, informed the court in writing that he was unable to care for M.F. and he did not contest the claim that M.F. was a child in need of care.

After the initial hearing, the State learned that M.F. might be eligible to enroll as a member of the Northern Arapaho Tribe (Tribe). Consequently, the State notified the Tribe of the proceeding. In response, the Tribe sent the State a notice of the Tribe's intent to intervene in the case and requested notification of all hearings and other actions. 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 would be eligible for enrollment.

After several continuances, the district court conducted a CINC hearing in July 2007. At the beginning of the hearing, the mother's attorney reminded the district court that the ICWA applied. The State agreed, but reported it was unaware of whether the Tribe had been notified of the hearing. The GAL argued the Tribe had nonetheless received proper notice but failed to timely intervene. The district court determined the hearing should proceed and that the ICWA would apply.

The only witness to testify at the CINC hearing was Lindsay Courtney, a licensed social worker who was M.F.'s case manager. Courtney testified she received her bachelor's degree in May 2006 and obtained her social work license in July 2006, approximately 3 months before M.F.'s birth in October. No other expert qualifications were offered. Courtney testified that M.F. had required surgery and had been hospitalized since May 10, 2007. M.F. continued to require specialized care because of a "trache" and feeding tubes. According to Courtney, once the mother had been discharged from the hospital, she had not called to check on M.F. and did not know M.F. had required surgery and lengthy hospitalization. Courtney indicated there was an element of danger and risk to M.F. by the mother's 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's standard of proof and established that M.F. was in danger and needed immediate placement. The GAL agreed with the State and 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. The mother's attorney argued the district court should apply the ICWA standard requiring testimony by an ICWA qualified expert, and the social worker who testified was not a qualified expert. The mother's attorney pointed out that Courtney did not testify she had ever "dealt with any Indian issues" or issues involving "Indian children." In addition, the mother's attorney suggested that the Tribe should be contacted because it might have resources available to meet M.F.'s needs.

The district court found the State had met its burden and the social worker had "testified appropriately as an expert in this matter." Additionally, the district court found the evidence was clear and convincing beyond a reasonable doubt that M.F. was in danger and out-of-home placement was immediately necessary. Further, the court found that "returning the child to [the parents] is not in the child's best interest at this time based on the child's special medical circumstances." Finally, the court held there was "good cause" to depart from any Indian placement because neither parent could care for the child; no family had come forward; the Tribe, despite its indication that it desired to intervene, had not done so; and there were no other viable placement options presented. In conclusion, the district court found M.F. was a child in need of care pursuant to K.S.A. 38-1502(a)(2) (repealed January 1, 2007; now K.S.A.2008 Supp. 38-2202[d][2], with nearly identical language) and set the matter over for disposition.

In November 2007, the district court conducted a permanency hearing to review the permanency plan and concluded the plan should be modified. In the journal entry, the court found reintegration of the family was not a viable alternative because M.F. had been in State custody since birth, M.F. had a serious medical condition that had required him to be hospitalized for 6 months and would require further hospitalization, and there was a lack of effort by the parents.

Also in November 2007, the State filed a motion to terminate parental rights. At a pretrial hearing related to the motion, counsel for the mother expressed concern there was no journal entry recording the CINC determination and the district court had heard no qualified expert testimony, which was required for a CINC determination under the ICWA. In response, the district court reiterated that it had found in July 2007, from the bench, that M.F. was a child in need of care pursuant to Kansas statutes based on evidence that "was clear and convincing and beyond a reasonable doubt." The court nevertheless agreed that the CINC finding needed to be journalized and directed the State to do so. Apparently, the State did not comply with the order; no such journal entry is contained in the record on appeal.

The mother then 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). In the GAL's written reply to the mother's motion, the GAL argued good cause existed under the ICWA 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 the mother's motion to transfer and ultimately denied the motion.

The motion to terminate parental rights was heard in April 2008, when M.F. was approximately 18 months of age. The mother appeared in person. Before evidence was presented, the district court noted a representative from the Tribe had contacted the district court and requested to participate in...