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In re M.B.

February 15, 2008

IN THE INTEREST OF M.B., DOB: 08/01/2003, AND A.B., DOB: 09/21/2001, CHILDREN UNDER EIGHTEEN (18) YEARS OF AGE.


Appeal from Johnson District Court; KATHLEEN SLOAN, judge.

SYLLABUS BY THE COURT

1. Interpretation of a statute is a question of law over which an appellate court has unlimited review.

2. In general, the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2000), applies to any child custody proceeding, including a termination of parental rights proceeding, involving an Indian child. The ICWA includes numerous provisions to further its purpose. These provisions can be divided into three categories: notice provisions, substantive provisions, and enforcement provisions.

3. Indian child is defined in 25 U.S.C. § 1903(4) (2000) as a child who is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

4. Enrollment is not always required in order to be a member of an Indian tribe. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means, nor is it necessarily determinative.

5. The determination of whether a child is an Indian child should be made by the Indian tribe rather than a social services agency or the district court.

6. If the provisions of the ICWA are not initially followed, subsequent remedial action by the district court may bring a termination of parental rights case into compliance with the requirements of the Act.

7. A court may terminate parental rights when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.

8. An appellate court's standard of review in a termination of parental rights case is whether there is substantial competent evidence to support the district court's findings. Substantial evidence is such legal and relevant evidence as a reasonable person would accept as sufficient to support a conclusion. An appellate court does not reweigh the evidence or determine the credibility of witnesses. An appellate court reviews the evidence in the light most favorable to the prevailing party. However, in a child in need of care case, an appellate court must be able to discern that the State's evidence was clear and convincing.

9. In determining whether a parent's conduct or condition is unlikely to change in the foreseeable future, the foreseeable future should be viewed from the child's perspective, not the parent's, as time perception of a child differs from that of an adult.

10. When a parent is incarcerated and unable to fulfill the customary parental duties required of an unrestrained parent, the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability. It is obvious that a parent imprisoned for a long term cannot provide the customary parental care and guidance ordinarily required. If an imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her children, it is for the trial court to determine the sufficiency of such efforts.

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

Affirmed.

Before CAPLINGER, P.J., MALONE, J., and LARSON, S.J.

R.B., a/k/a R.S., (Father) appeals the district court's decision terminating his parental rights to M.B. (d.o.b. 8/1/03) and A.B. (d.o.b. 9/21/01). Father claims the district court erred in failing to comply with the notice provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2000). He further claims the district court's decision terminating his parental rights was not supported by substantial competent evidence. A.S. (Mother) did not appeal the district court's decision terminating her parental rights.

Factual and Procedural History

On June 29, 2004, the State filed separate petitions, alleging that M.B. and A.B. were children in need of care (CINC). The children were removed from their home and placed in protective custody with the Kansas Department of Social and Rehabilitation Services (SRS). On October 27, 2004, Mother stipulated to an amended CINC petition. Based on evidence that Father was incarcerated, the court adjudicated both children to be in need of care. At the disposition hearing, the district court ordered Mother to participate in a 6-month reintegration plan.

At a review hearing on April 26, 2005, the district court was advised that Mother was not making progress on her reintegration plan and that the State would be seeking another form of permanency for the children. The cases were set for a permanency hearing and, while the district court declined to extend Mother's reintegration plan, the court urged Mother to continue to work toward reintegration.

On May 3, 2005, the State filed separate petitions requesting the district court to terminate Mother's and Father's parental rights to both children. The district court held a hearing on October 21, 2005. The majority of the testimony addressed Mother's neglect of the children and her failure to comply with the reintegration plan. The only testimony about Father concerned the fact that he was incarcerated and had no involvement with the children. The district court rendered its decision from the bench on November 22, 2005, and found that both Mother and Father were unfit parents and that the condition was unlikely to change in the foreseeable future. The district court terminated Mother's and Father's parental rights to both children, and a journal entry was filed on December 1, 2005. On December 19, 2005, Father filed a timely notice of appeal. Mother did not appeal the district court's decision terminating her parental rights.

At no time during the proceedings was there any mention to the district court of the children's Native American heritage. In fact, the CINC petition had specifically alleged that the State had no information regarding American Indian heritage with regard to the children. On April 17, 2006, 4 months after filing his notice of appeal, Father filed a motion in the district court for an emergency hearing. In the motion, Father claimed that M.B. and A.B. were Indian children and that he was trying to complete the necessary paperwork to register the children with the Cherokee Nation. Father requested the district court to order SRS to sign the necessary paperwork. An emergency hearing was held on April 25, 2006. Because an appeal was pending, the district court took Father's request under advisement. Despite the district court's ruling taking Father's request under advisement, SRS, through its subcontractor, KVC Behavioral Healthcare, Inc. (KVC), subsequently registered the children with the Cherokee tribe. The district court was advised of the registration during a permanency hearing for the children on June 28, 2006.

On August 3, 2006, the Court of Appeals received a letter from the Cherokee Nation informing the appeals court that the tribe had determined that M.B. and A.B. were both "Indian children" under the ICWA. After receiving this letter, the Court of Appeals ordered the parties to show cause why the case should not be remanded to the district court for further proceedings under the ICWA. Both parties responded to the show cause order and agreed that the case should be remanded to the district court. On September 19, 2006, the Court of Appeals dismissed the appeal and remanded the case to the district court for further proceedings pursuant to the ICWA.

After the remand order, the district court notified the Cherokee Nation of the CINC proceedings, and the Cherokee Nation participated in all subsequent hearings in the district court. The district court conducted a review hearing on October 18, 2006. At the hearing, the district court ordered all parties to file any motions they deemed appropriate as well as briefs in support of their positions on what action the district court should take in order to comply with the ICWA. The district court invited the representative of the Cherokee Nation to submit a brief as well.

On November 28, 2006, Father filed a motion to invalidate the proceedings. Father argued that because the district court had initially failed to notify the Cherokee Nation of the CINC proceedings, the district court was required to "start the case over" and set aside its prior rulings, including the order terminating parental rights and the CINC adjudication order. Although Mother ...


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