BY THE COURT
rules pertaining to the termination of parental rights are
reviewed and applied.
Indian children are in a special category when it comes to
child in need of care proceedings. In Kansas, a child in need
of care proceeding is generally governed by the Revised
Kansas Code for Care of Children, except in those instances
when the court knows or has reason to know that an Indian
child is involved in the proceeding, in which case, the
Indian Child Welfare Act applies.
there is any reason to believe a child is an Indian child,
the agency and state court must treat the child as an Indian
child, unless and until it is determined that the child is
not a member or is not eligible for membership in an Indian
Where the court knows or has reason to know that an Indian
child is involved in a child in need of care proceeding, the
party seeking the termination of parental rights to an Indian
child shall notify the Indian child's tribe, by
registered mail with return receipt requested, of the pending
proceedings and of the tribe's right of intervention.
notice requirement includes providing responses to requests
for additional information, where available, in the event
that a tribe indicates that such information is necessary to
determine whether a child is an Indian child.
from Meade District Court; Van Z. Hampton, judge.
Scott James, of Greensburg, for appellant natural mother.
J. Kennington, of Garden City, for appellant natural father.
H. Lewis, county attorney, for appellee.
Hill, P.J., McAnany and Atcheson, JJ.
appeal of the severance of their parental rights to their
son, D.H., Jr., Mother and Father primarily claim that things
were turning around for them and the court jumped the gun and
severed their rights prematurely. Father claims a deep
emotional bond with his son and that the evidence did not
compel termination of his rights at this point. Mother also
raises claims of incompetent counsel at one of the initial
hearings where she stipulated that this child was in need of
care. She also complains about lack of sufficient notice to
the Cherokee Indian Nation.
review reveals that the evidence in this record supports
termination of their parental rights, and we affirm the
termination. While it is true that Mother's first counsel
was incompetent as she claims, he was soon replaced and the
case went forward for a long time where Mother had proper
professional legal assistance. Her parental rights were
severed because of her continued use of methamphetamine, not
because of the misdeeds of her first lawyer. Under these
circumstances, she has failed to show prejudice to her case
from the lawyer's deficient representation.
however, remand the case to the district court for additional
information to be sent to the Cherokee Indian Nation to
determine with certainty whether this is an Indian child. The
Indian Child Welfare Act and Kansas law require proper
notices to be sent to the Indian Nations. This means that
when there is an inquiry from a Nation for additional
information, the law expects reasonable efforts by the State
to supply that information. We hold that this was not done
here, and we remand the case to the district court with
of their separation, Mother and Father no longer speak with a
common voice. They are represented by separate counsel and
pursue unique avenues for reversal of the district
court's decision. Even so, much of the evidence dealt
with their common roles as parents and we will review that
evidence collectively. But where the arguments take separate
paths, we will address their issues separately.
rules that control this case are well settled.
statutes that focus on children in need of care create a
system where those children in distress will receive the
relief they need for their young lives as they are unable to
provide for themselves. The statutes provide help,
supervision, and assistance for their parents, who for many
and various reasons, cannot or do not provide for their
children. Services in support of the family are provided, as
needed, to the children and their parents. Physical, medical,
mental, and social evaluations of all members of a family are
frequently obtained. Classes and counseling are often
available. All of these efforts are expended primarily for
the safety and well-being of the child, and when the child is
removed from the home, the efforts focus on reunification of
to broken lives and families, however, can take time-even
years. But the law and our Supreme Court both recognize that
the formative years for children are brief and if parents
cannot or will not make changes in their lives to accommodate
the return of their child, the district court will terminate
their parental rights if it is in the best interests of their
child to do so.
district court may terminate parental rights only after a
child has been found to be a child in need of care and the
court finds by clear and convincing evidence that:
• the parent or parents are unfit and unable to care
properly for a child;
• the conduct or condition that renders the parent unfit
is unlikely to change in the foreseeable future; and
• it is in the best interests of the child to terminate
parental rights. See K.S.A. 2016 Supp. 38-2269(a) and (g)(1).
statutes set out the criteria a judge must consider when
deciding termination questions. When deciding unfitness of a
parent, the court must consider a list of factors in K.S.A.
2016 Supp. 38-2269(b) and any other factors the court deems
appropriate. When the child is not in the parents'
physical custody-such as the case here-the court must also
consider four additional factors listed in K.S.A. 2016 Supp.
38-2269(c). Proof of any one of these factors may establish
grounds for termination of parental rights. K.S.A. 2016 Supp.
38-2269(f). In deciding whether termination of parental
rights is in the best interests of the child, the court must
give primary consideration to the physical, mental, and
emotional needs of the child. K.S.A. 2016 Supp.
38-2269(g)(1). The passage of time for improvement must be
taken into account because we deal with young, impressionable
lives. These children in need of care, indeed, are not
children for long.
part, when we review a district court's termination of
parental rights, the law requires us to consider whether,
after our review of all the evidence, viewed in the light
most favorable to the State, we are convinced that a rational
factfinder could find it highly probable, i.e. by
clear and convincing evidence, that the parent's rights
should be terminated. In making this determination, this
court does not weigh conflicting evidence, pass on the
credibility of witnesses, or redetermine questions of fact.
In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594
(2008). We now briefly review the evidence of the problems
experienced by this family. More of the facts will be related
later when we explain our holding.
usage dominated this family.
did not start well for this child. The day after D.H., Jr.,
was born in November 2012, the staff at the hospital reported
to the Department for Children and Families that Mother was
using methamphetamine while she was pregnant with this child.
When services were offered to the family, they refused and
the case was closed.
that, life for this family was far from tranquil. In May
2013, the Department received a report that Mother and Father
were using drugs and the child was home alone. They moved to
Meade County and they bounced around from house to house.
Crisis followed crisis. They were in frequent contact with
the police for domestic disturbances. They admitted using
methamphetamine. They were evicted. They fought with each
other with the child present. They moved in with a man and
left their child with him without telling him they were going
or when or if they would return.
experienced financial distress. Jill Burtzloff, the assigned
social worker, stated she was never able to verify whether
the parents were employed. Neither Father nor Mother held
down a job during this time.
legal complications arose in their lives. The State charged
Mother and Father with possession of drug paraphernalia.
Later, the State filed an additional charge against Father
for domestic battery because he grabbed Mother around the
neck during an argument. Father pled no contest to disorderly
conduct, and the court issued a no contact order restraining
him from Mother. With this background information we turn to
these legal proceedings.
child in need of care case started when both parents were
arrested for bond violations in November 2014 and both tested
positive for methamphetamine. Their bonds were revoked. This
meant incarceration for the pair. With both parents in jail
and no other place for D.H., Jr., to go, the State filed a
petition to find him to be a child in need of care. The court
placed him in the Department's custody. He would never
again reside at his parents' home.
successes were followed by many failures for the
unexpectedly nor unreasonably, the juvenile court wanted both
parents to be drug free when they spent time with their child
and ordered that they were to have a clean drug screen before
having any contact with their child. This proved to be a high
with no explanation in the record, the parents did not attend
the case planning conference. With a goal of reintegration of
the family, the court adopted a case plan that set out tasks
for the parents, such as:
• refrain from the use of illegal ...