In re T.S.W.

Decision Date04 May 2012
Docket NumberNo. 104,424.,104,424.
Citation294 Kan. 423,276 P.3d 133
PartiesIn the Matter of T.S.W., a Minor.
CourtKansas Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court

1. An appellate court exercises unlimited review over jurisdictional issues and has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the court must dismiss the appeal.

2. The right to appeal is entirely statutory and is not a right contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes.

3. The Kansas Adoption and Relinquishment Act, K.S.A. 59–2111 et seq., falls within the Kansas Probate Code and permits an appeal by an interested party from the district court to the appellate court of any final order, judgment or decree entered in any proceeding pursuant to the Kansas Adoption and Relinquishment Act. K.S.A. 2011 Supp. 59–2401a(b)(1).

4. Although the Kansas Probate Code does not define the phrase “final order, judgment or decree” as used in K.S.A. 2011 Supp. 59–2401a(b)(1), appeal procedures under the probate code are governed by article 21 of chapter 60 of the Kansas Statutes Annotated.

5. Under the Kansas Code of Civil Procedure, an appeal may be taken to the Court of Appeals as a matter of right from any final decision.

6. A final decision under K.S.A. 2011 Supp. 60–2102(a)(4) generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court.

7. The phrase final decision in K.S.A. 2011 Supp. 60–2102(a)(4) is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as a terminal act in the case.

8. Under the unique factual circumstances of this case, the district court's order permitting a deviationfrom the Indian Child Welfare Act's placement preferences did not dispose of the entire merits of the case and left open the possibility of future action by the district court with respect to the child's placement. Thus, the appellant did not appeal from a “ final order, judgment or decree” under K.S.A. 2011 Supp. 59–2401a(b)(1), and the court lacked statutory authority to hear this appeal.

9. The collateral order doctrine provides a narrow exception to the final order requirement for appellate jurisdiction. It allows appellate courts to reach not only judgments that terminate an action, but also a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed final.

10. As the collateral order doctrine is applied in Kansas, an order may be collaterally appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.

11. Under the unique factual circumstances of this case, the collateral order doctrine exception to the final order requirement for appellate review provided jurisdiction over the district court's decision to deviate from the Indian Child Welfare Act's (ICWA) placement preferences because the order (1) conclusively determined the disputed issue of whether to permit deviation from ICWA's placement preferences; (2) resolved an issue wholly separate from the merits of the proceeding, which concerned the termination of the biological father's parental rights; and (3) is effectively unreviewable upon appeal from a final judgment as a result of the appellee's action in proceeding with a final adoption without notice to the appellant.

12. The appellate court reviews a district court's finding that good cause exists to deviate from the Indian Child Welfare Act's placement preferences for abuse of discretion. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

[294 Kan. 425]13. Interpretation of a statute is a question of law over which appellate courts exercise unlimited review.

14. The Indian Child Welfare Act's placement preferences, as set forth in 25 U.S.C. § 1915(a) (2001), apply to a non-Indian parent's voluntary placement of his or her Indian child with an adoption agency.

15. This court's decision in In re Adoption of B.G.J., 281 Kan. 552, 565–66, 133 P.3d 1 (2006), affirming the district court's decision to deviate from the Indian Child Welfare Act's (ICWA) placement preferences is reviewed, and it is held: The holding in B.G.J. was not based solely, or even mostly, on the mother's placement preference. But to the extent the decision in B.G.J. can be read to suggest that a parent's preference can by itself override ICWA's placement preferences, the court expressly disapproves that language as dicta.

16. Consideration of the parental preference factor referred to in 25 U.S.C. § 1915(c) (2001) does not automatically permit a biological parent's preference for placement of a child with a non-Indian family to provide good cause to override the adoptive placement preferences of § 1915(a). Instead, a parent's preference for anonymity with respect to placement of the child must be considered along with other relevant factors, including the best interest of the child, in deciding whether to modify the order of consideration of the Indian Child Welfare Act's placement references.

N. Cheryl Hamby, assistant attorney general, of Tahlequah, Oklahoma, argued the cause, and Anita Settle Kemp, of Wichita, was with her on the briefs for appellant/intervenor Cherokee Nation.

Richard A. Macias, of Wichita, argued the cause and was on the brief for appellee/Adoption Centre of Kansas, Inc.

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

Cherokee Nation, Intervenor, challenges the district court's decision under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2001), to deviate from ICWA's placement preferences, see 25 U.S.C. § 1915(a) (2001), based upon the biologicalnon-Indian mother's preference that her child be placed with a non-Indian family. Because we conclude that absent a request for anonymity by a biological parent, a parent's placement preference cannot override ICWA's placement factors, we reverse the district court's determination.

Factual and Procedural Background

D.R.W. (Mother) gave birth to T.S.W. on September 14, 2009. Approximately 2 months before T.S.W.'s birth, Mother decided to place her child for adoption. She contacted Adoption Centre of Kansas, Inc. (the Agency) to assist her in that process, and she identified two possible fathers of her child, one of whom was J.A.L.

In early August 2009, J.A.L.'s mother notified the Agency that J.A.L. was a member of Cherokee Nation (the Tribe). Because of the child's potential eligibility for membership in the Tribe, the Agency requested that the Tribe provide profiles of potential adoptive families.

In early September, employees of the Agency exchanged several e-mails with employees of the Tribe. In these e-mails, the Agency advised that because the Tribe had no families that could pay the Agency's $27,500 flat fee, the Agency wished to place Mother's child with one of its own families. However, the Agency expressed concern that the Tribe might seek to remove the child at a later time. The Agency also pointed out that Mother had her own criteria for any adoptive family, including that the couple be Caucasian, childless, financially secure, and open to postadoption visitation.

The Tribe responded that it had identified several certified families that could meet Mother's adoption criteria but that it had no families capable of paying the Agency's $27,500 fee. The Tribe also pointed out that [a]gency fees are not a reason to deviate from federal law.”

Eventually, on September 9, 2009, the Agency's counsel, through an e-mail sent by an Agency employee, advised the Tribe that Mother would consider family profiles that met Mother's “criteria” and the Agency would “base fees and cost on an appropriate sliding scale.” However, the Agency's counsel noted that the Agency's fees and costs could not be calculated absent information as to the prospective adoptive family's overall financial condition. The following day, September 10, 2009, the Tribe sent profiles of two potential adoptive families to the Agency.

Mother gave birth to T.S.W. on September 14, 2009. On September 15, 2009, the Agency filed a petition in district court seeking to terminate the parental rights of the two potential biological fathers. The petition specifically noted: “Subsequent to this petition for termination of parental rights, a petition for the adoption of the subject minor child will be filed.”

After court-ordered paternity testing conclusively determined that J.A.L. (Father) was T.S.W.'s biological father, the Agency filed an amended petition on October 1, 2009, seeking termination of Father's parental rights. Also on October 1, 2009, the court granted temporary custody of T.S.W. to the Agency.

Father filed a handwritten objection to the petition, noting that although he was in jail, his mother was willing to raise T.S.W. However, the Agency did not contact any of Father's family members regarding T.S.W.'s placement because Mother did not want T.S.W. to be placed with Father's family.

Meanwhile, the Agency had not communicated with the Tribe regarding the Indian family profiles provided by the Tribe. Consequently, on September 28, 2009, the Tribe requested an update from the Agency on...

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35 cases
  • Couple v. Girl
    • United States
    • South Carolina Supreme Court
    • July 26, 2012
    ...with Appellants is, standing alone, insufficient to constitute good cause warranting deviation from section 1915(a). See In re T.S.W., 276 P.3d 133 (Kan. 2012) (holding placement preference of birth mother alone does not constitute good cause to deviate from placement preferences under ICWA......
  • Adoption B.B. v. R.K.B.
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    • Utah Supreme Court
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    ...of Sara J. , 123 P.3d 1017, 1036 (Alaska 2005) (applying "[c]ommon sense" to interpret ICWA's placement preferences); In re T.S.W. , 294 Kan. 423, 276 P.3d 133, 144 (2012) (same). ¶ 74 Thus, we hold that Birth Father's actions satisfied the requirements for acknowledging paternity under ICW......
  • State v. Reed
    • United States
    • Kansas Supreme Court
    • June 19, 2015
    ...Court of Appeals, with a discussion of our appellate jurisdiction. Our review over jurisdictional issues is unlimited. In re T.S.W., 294 Kan. 423, 432, 276 P.3d 133 (2012). The State argues that this court lacks jurisdiction to consider Reed's claim of ineffective assistance of counsel beca......
  • In re Adoption T.M.M.H.
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    • Kansas Supreme Court
    • May 11, 2018
    ...parental rights,] is entirely statutory and is not a right contained in the United States or Kansas Constitutions." In re T.S.W. , 294 Kan. 423, 432, 276 P.3d 133 (2012). Furthermore, past cases of this court dealing with standing issues in the context of adoption have focused on statutory ......
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3 books & journal articles
  • Adoption in Kansas: Nearly 25 Years After Kara, Where Are We?
    • United States
    • Kansas Bar Association KBA Bar Journal No. 83-12, December 2014
    • Invalid date
    ...note 13. [140] ICWA applies to Kansas proceedings to terminate parental rights and allow adoption of an Indian child. See In re T.S.W., 294 Kan. 423, 276 P.3d 733 (2012) (Intervenor, Cherokee Nation, successfully argued that the district court erred in finding good cause to deviate from ICW......
  • Adoption in Kansas: Nearly 25 Years After Kara, Where Are We?
    • United States
    • Kansas Bar Association KBA Bar Journal No. 83-10, October 2014
    • Invalid date
    ...note 13. [140] ICWA applies to Kansas proceedings to terminate parental rights and allow adoption of an Indian child. See In re T.S.W., 294 Kan. 423, 276 P.3d 733 (2012) (Intervenor, Cherokee Nation, successfully argued that the district court erred in finding good cause to deviate from ICW......
  • The Indian Child Welfare Act: History, Reflections, and Best Practices
    • United States
    • Kansas Bar Association KBA Bar Journal No. 90-5, October 2021
    • Invalid date
    ...the Final Rule more widely utilized, future appellate court opinions may cite to it more frequently. Kansas Supreme Court In re T.S.W., 294 Kan. 423, 276 P.3d 133 (2012) The ICWA's placement preferences apply to a non-Indian parent's voluntary placement of his or her Indian child with an ad......

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