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In re D.H.

Court of Appeals of Kansas

August 4, 2017

In the Interest of D.H., Jr., A Minor Child.

         SYLLABUS BY THE COURT

         1. The rules pertaining to the termination of parental rights are reviewed and applied.

         2. 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.

         3. If 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 tribe.

         4. 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.

         5. The 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.

         Appeal from Meade District Court; Van Z. Hampton, judge.

          J. Scott James, of Greensburg, for appellant natural mother.

          Robert J. Kennington, of Garden City, for appellant natural father.

          Laura H. Lewis, county attorney, for appellee.

          Before Hill, P.J., McAnany and Atcheson, JJ.

          Hill, J.

         In this 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.

         Our 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.

         We do, 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 directions.

         Because 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.

         The rules that control this case are well settled.

         Our 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 the family.

         Repairs 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.

         A 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).

         Various 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.

         For our 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.

         Drug usage dominated this family.

         Life 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.

         After 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.

         They 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.

         Serious 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.

         This 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.

         Some successes were followed by many failures for the parents.

         Neither 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 hurdle.

         First, 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 ...

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