In re T.S.W

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,424

In the Matter of T.S.W., a Minor.


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
2



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 deviation from 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
3



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
4



not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based.

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
5



best interest of the child, in deciding whether to modify the order of consideration of the
Indian Child Welfare Act's placement references.

Appeal from Sedgwick District Court; RICHARD T. BALLINGER, judge. Opinion filed May 4,
2012. Reversed.

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 21 U.S.C. § 1915(a) (2001), based upon the
biological non-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.

6



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
7



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 T.S.W.'s placement. On September 30, 2009, the
Agency responded that T.S.W. had been born on September 14, 2009; that paternity
testing had confirmed that J.A.L. was T.S.W.'s biological father; that J.A.L. planned to
contest the adoption; and that Mother had selected one of the two families provided by
the Tribe as a possible adoptive family for T.S.W.

Based on T.S.W.'s status as an Indian child, on October 21, 2009, the Tribe moved
to intervene in the action to terminate Father's parental rights. The record on appeal
contains no ruling on this motion. Nevertheless, on November 5, 2009, the Tribe filed
both an answer to the Agency's amended petition to terminate parental rights and a
counter-petition requesting application of ICWA to the proceedings.

8



By November 2, 2009, both of the families proposed by the Tribe had withdrawn
from consideration as potential adoptive families for T.S.W. The record reflects
somewhat conflicting testimony regarding the reason for their withdrawal. According to
testimony of the Tribe employees, one of the families withdrew because it received
another placement while the other family withdrew because of concerns about the
Agency's fees as well as the cost of potential litigation with Father.

In any event, upon learning of the unavailability of these families, the Agency
requested that the Tribe provide profiles of other available adoptive families. But before
the Tribe could do so, the Agency reviewed with Mother the profiles of several of its own
families. From these profiles, Mother chose a non-Indian family to adopt T.S.W.

Apparently unaware that Mother had selected a non-Indian family, on November
9, 2009, the Tribe provided the Agency with an additional 17 to 20 Indian family profiles.
Mother reviewed those profiles, but according to an Agency employee, Mother did not
prefer any of the Indian families over the non-Indian family she had already selected.
Mother later testified that had she not been permitted to place T.S.W. with the family of
her choice, she would have withdrawn her consent to T.S.W.'s adoption.

Meanwhile, on November 18, 2009, the Agency filed a pleading entitled "Petition"
seeking to deviate from ICWA's placement preferences in the pending action to terminate
Father's parental rights. Although to this point no adoption proceeding had been filed, the
Agency recited that it sought to deviate from ICWA's placement preferences. The
pleading did not indicate whether the Agency sought to deviate from ICWA's temporary
or adoptive placement preferences, nor did it indicate whether an adoption petition had
been filed or was forthcoming. Further, although the "petition" mentioned ICWA, it
contained no statutory reference to the Act, nor did it identify or discuss ICWA's
placement preferences.
9




The docket sheet indicates the district court conducted a temporary placement
hearing on December 4, 2009, although the transcript of the hearing is not included in the
record on appeal. The hearing apparently resulted in T.S.W.'s prospective adoptive
placement with the non-Indian family selected by Mother. It is unclear from the record
whether the district court considered if good cause existed to deviate from ICWA's foster
care and preadoptive placement preferences under 25 U.S.C. § 1915(b) before issuing a
temporary placement order.

The record on appeal contains a pretrial order filed on January 12, 2010, reflecting
a pretrial conference held on December 29, 2009. The pretrial order identifies the "Nature
of hearing" as a "Termination of Parental Rights."

Also on January 12, 2010, the district court conducted a hearing on the Agency's
petition to terminate Father's parental rights. Again, although the record on appeal
contains no transcript of the hearing, it appears that at the conclusion of the hearing, the
district court ruled from the bench, terminating Father's parental rights. However, the
district court did not issue a written order terminating Father's parental rights until March
11, 2010.

On January 26 and 27, 2010, the district court conducted a hearing on the
Agency's petition to deviate from ICWA's placement preferences. At the close of the
hearing, the district court orally ruled from the bench, deviating from ICWA's placement
preferences based primarily upon Mother's desire that the child be placed with the
adoptive couple she had chosen and Mother's threat to withdraw her consent to the
adoption if her choice was not approved.

10



At the close of the hearing, the district court asked the Agency's counsel to draft
and circulate a journal entry memorializing the court's finding within 10 days and
indicated that if the parties did not sign the journal entry within 4 days after circulation,
the court would sign the journal entry without signatures. The court stated: "I wanna
make sure that this case keeps moving and it's not sitting around for a couple of months
waiting for the journal entry."

However, the journal entry formalizing the district court's decision was not filed
until more than 2 months later, on April 15, 2010. In the meantime, as discussed below,
counsel for the Agency in this case apparently filed a separate adoption proceeding in
district court. In that separate proceeding, counsel represented the adoptive parents
chosen by Mother and, without notice to the Tribe, obtained a final decree of adoption of
T.S.W.

In its April 15, 2010, journal entry, the district court found good cause existed to
deviate from ICWA. Like the "petition" for deviation filed by the Agency, the journal
entry contains neither a statutory reference to ICWA nor a description of ICWA's
placement preferences. Further, the journal entry does not specify whether the deviation
is for temporary or adoptive placement. Nevertheless, in the journal entry the district
court held: "Birth parents can revoke their consent at any time for any reason; and the
birth Mother has final say." Further, the district court conclusively stated that the "[b]irth
mother's preference is good cause under ICWA to deviate from the prescribed placement
preferences."

The Tribe appealed the district court's April 15, 2010, order granting a deviation
from ICWA's placement preferences. The appeal was transferred from the Court of
Appeals to this court pursuant to K.S.A. 20-3018(c).

11



Show Cause Order

Prior to oral argument, this court issued a show cause order advising the parties
that the record contained insufficient information for the court to verify its jurisdiction to
hear the appeal. Specifically, the court noted the record contained no petition for adoption
or final adoption decree, and the court directed the parties to address the finality of the
order appealed from under K.S.A. 2011 Supp. 59-2401a(a)(1).

In response to the show cause order, the Tribe pointed out that the district court's
journal entry finding good cause to deviate from ICWA's placement preferences was the
final docket entry in the district court, other than appeal-related filings. The Tribe also
noted that while the Agency had advised the Tribe that T.S.W. was adopted "a long time
ago," the Tribe received no notice of the adoption and assumed it occurred "under a
different case number." Finally, the Tribe advised that it had requested that the Agency
provide confirmation of T.S.W.'s final adoption, but the Agency had not responded to its
request.

In its "Response [to Show Cause Order] and Motion to Dismiss Appeal," the
Agency argued this appeal should be dismissed for lack of jurisdiction because the Tribe
did not appeal the termination of Father's parental rights and because the court's decision
regarding placement deviation was not an appealable order under "K.S.A. 59-2401 [sic]"
or K.S.A. 60-2102. However, the Agency's response did not address whether a separate
adoption proceeding had been filed or a final adoption decree issued.

Nevertheless, during oral argument in this appeal, counsel for the Agency
conceded that prior to the expiration of the appeal time in this action, he filed a petition to
adopt T.S.W. in a separate proceeding and in that proceeding, he represented the adoptive
parents chosen by Mother. Counsel represented at argument that the same judge that
12



granted the deviation from ICWA in this case also entered a final adoption decree in the
adoption proceeding. Finally, the Agency's counsel conceded he did not notify or
communicate with the Tribe about T.S.W.'s adoption until after this court entered its
show cause order, when he advised the Tribe's counsel that the adoption "happened a
long time ago."

ANALYSIS

On appeal, the Tribe argues the district court erred in finding good cause to
deviate from ICWA's placement preferences as set forth in 25 U.S.C. § 1915. But before
considering this issue, we must determine whether we have jurisdiction to hear this
appeal in light of the unique procedural posture presented by this case.

The Tribe concedes that the Agency filed this action as a petition to terminate
Father's parental rights and that no party appealed the district court's order terminating
Father's rights. The Tribe also concedes that no party filed a petition for an adoption
proceeding in this case. Nevertheless, the Tribe urges us to find that this was a "de facto"
adoption proceeding and that the district court entered a final decision satisfying all
issues with respect to the Tribe when it deviated from ICWA's placement preferences. In
the alternative, and as further discussed below, the Tribe urges us to apply the collateral
order doctrine, which permits an exception to the final order requirement in limited
circumstances.

As discussed above, although the Agency had not previously raised a jurisdictional
issue, it now contends this appeal should be dismissed for lack of jurisdiction. The
Agency does not elaborate on the basis for dismissal other than to point out that no party
appealed the order terminating Father's parental rights. Further, the Agency suggests the
13



district court's decision permitting deviation from ICWA was not a final, appealable order
under K.S.A. 2011 Supp. 59-2401 or K.S.A. 2011 Supp. 60-2102.

The collateral order doctrine provides a jurisdictional basis for this appeal.

We exercise unlimited review over jurisdictional issues, Shipe v. Public Wholesale
Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009), and we have a duty
to question jurisdiction on our own initiative. When the record discloses a lack of
jurisdiction, we must dismiss the appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369
(2008).

The right to appeal is entirely statutory and is not a right contained in the United
States or Kansas Constitutions. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597,
609, 244 P.3d 642 (2010). 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. Gill, 287 Kan. at 294.

This action was filed pursuant to the Kansas Adoption and Relinquishment Act
(KARA), K.S.A. 59-2111 et seq. The KARA 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).

Although the probate code does not define the phrase "final order, judgment or
decree," we derive guidance from the Kansas Code of Civil Procedure. See K.S.A. 2011
Supp. 59-2401a(b) (appeal procedures under the probate code are governed by article 21
of chapter 60 of the Kansas Statutes Annotated); In re Guardianship of Sokol, 40 Kan.
App. 2d 57, 61, 189 P.3d 526 (2008). Under the civil code, an appeal may be taken to the
14



Court of Appeals as a matter of right from any "final decision." K.S.A. 2011 Supp. 60-
2102(a)(4). A "final decision" 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.
We have noted that the phrase "final decision" 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. Flores Rentals v. Flores, 283 Kan. 476, 481-82, 153
P.3d 523 (2007).

As noted, this case presents to us in an unusual procedural posture, making
application of the "final decision" analysis difficult. The parties concede that the Agency
filed this action to terminate Father's parental rights and not as an adoption proceeding.
The pretrial order verifies that the sole purpose of the underlying proceeding was to
terminate Father's rights. Yet no party appealed the district court's order terminating
Father's parental rights. Further, for reasons not apparent from the record, the district
court entertained the Agency's "petition" to deviate from ICWA's adoptive placement
preferences, although the petition did not indicate that the Agency sought temporary or
adoptive placement of the Indian child. See 25 U.S.C. § 1915. Nevertheless, the Tribe
now appeals from the district court's order granting that deviation.

We have construed the phrase "final decision" as a decision "'"which finally
decides and disposes of the entire merits of the controversy, and reserves no further
questions or directions for the future or further action of the court."'" Kansas Medical
Mut. Ins. Co., 291 Kan. at 610 (quoting Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538
P.2d 724 [1975]). Here, the district court's decision to deviate from ICWA's placement
preferences clearly anticipates further action—specifically, T.S.W.'s placement with an
adoptive family.

15



We are unwilling to find, as the Tribe urges us to do, that this was a "de facto"
adoption proceeding. Significantly, the Tribe cites no authority for this novel approach,
and we have found none. Further, this suggestion ignores the information gleaned from
the show cause order issued by this court—i.e., that the adoptive couple chosen by
Mother filed a separate proceeding and obtained a decree of adoption in that proceeding,
albeit without notice to the Tribe, while the instant action was still pending. Thus, the
underlying action clearly was not intended by the Agency or understood by the court to
be a "de facto" adoption proceeding.

Finally, we note that neither party suggests that this appeal is legislatively
authorized as an interlocutory appeal under K.S.A. 2011 Supp. 60-2102.

Under the circumstances presented here, we conclude the district court's order
permitting a deviation from ICWA'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 T.S.W.'s placement. Thus, the Tribe has not appealed from a "final order,
judgment or decree" under K.S.A. 2011 Supp. 59-2401a(b)(1), and we lack statutory
authority to hear this appeal.

But that holding does not end our analysis. Alternatively, the Tribe urges us to
exercise jurisdiction under the collateral order doctrine. That doctrine, which we
sparingly apply, provides a narrow exception to the final order requirement. 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." [Citation omitted.]'" Kansas Medical Mut. Ins. Co., 291 Kan. at 611-12
(quoting Mohawk Industries, Inc. v. Carpenter, 558 U.S. ___, 130 S. Ct. 599, 605, 175 L.
Ed. 2d 458 [2009]).

16



As the 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. Kansas Medical Mut. Ins. Co., 291 Kan. at 612.

Here, the district court's decision conclusively determined the disputed issue—i.e.,
whether to permit deviation from ICWA's placement preferences. Further, we are
satisfied that at least in this case, which was filed as an action to terminate Father's
parental rights, the district court's decision granting deviation from ICWA's placement
preferences resolved an issue wholly separate from the merits of the proceeding.

We are persuaded that the third factor—whether the disputed issue will be
effectively unreviewable upon appeal from a final judgment—also was met in this case in
light of the separate adoption proceeding filed without notice to the Tribe. As the Tribe
pointed out at oral argument, if we decline to review the district court's deviation from
ICWA's placement preferences, that decision will be effectively unreviewable because of
the Agency's action in proceeding with a final adoption without notice to the Tribe.

Based upon the unique factual circumstances of this case, we conclude the district
court's order permitting deviation from ICWA's placement preferences falls within that
"small class" of collateral rulings that, although it did not end the litigation, is
appropriately deemed "final."

Having determined we have jurisdiction to hear this appeal, we turn to the merits
of the underlying issue.

The district court erred in deviating from ICWA's placement preferences.

17



On appeal, the Tribe argues the district court abused its discretion in finding good
cause to deviate from ICWA's placement preferences because the Agency: (1) failed to
make reasonable efforts to seek placement within ICWA's placement preferences beyond
requesting the Tribe provide families that complied with the preferences and could meet
the Agency's fees of $27,500; (2) failed to impartially consider T.S.W.'s relatives for
placement; and (3) offered non-ICWA placement options to Mother prior to offering the
remaining ICWA-compliant families offered by the Tribe.

Further, the Tribe contends the district court erred in basing its good cause finding
on Mother's promise to withdraw her consent to the adoption if she was not allowed to
choose the adoptive family. The Tribe contends Mother's threat to withdraw her consent
and/or her choice of adoptive parents cannot override ICWA's mandatory placement
preferences. Instead, the Tribe reasons that Mother's preferences are relevant only in
limited circumstances not present here.

The Agency does not argue that it complied with ICWA's placement preferences.
Rather, the Agency essentially contends that while it attempted to comply with the
second placement preference, Mother's preference to place her child with non-Indian
parents ultimately provided good cause to deviate from ICWA's preferences.
Alternatively, the Agency argues ICWA does not apply to a non-Indian biological
parent's voluntary placement of their child with a non-Indian adoptive family.

We review a district court's finding that good cause exists to deviate from ICWA's
placement preferences for abuse of discretion. In re Adoption of B.G.J., 281 Kan. 552,
564, 133 P.3d 1 (2006) (finding that the district court abuses its "substantial discretion" if
it fails to properly apply the ICWA factors).

18



"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." State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

This case also may require interpretation of ICWA. Interpretation of a statute is a
question of law over which we exercise unlimited review. In re A.J.S., 288 Kan. 429,
431, 204 P.3d 543 (2009).

ICWA's placement preferences extend to voluntary placements by a non-Indian parent.

Before considering whether the district court correctly applied ICWA's placement
preferences here, we first briefly consider what appears to be an alternative argument by
the Agency. Although not precisely formulated, the Agency contends ICWA's placement
preferences should not be applied to the situation presently before us, i.e., where a non-
Indian biological parent has voluntarily consented to the placement of her Indian child
with a non-Indian family. Without benefit of authority, the Agency reasons:

"The most troubling aspect to the Cherokee Nation's position is the attempt to use the Act
to usurp the prenatal rights of a fit non-Indian mother to determine the best interest of her
child. The Act was designed to prevent the unfair forcible removal of Indian children
from their own homes and place them with non-Indian adoptive parents. Here, the
Cherokee Nation attempts to use the placement preferences in an involuntary removal to
overrule the placement desires of the fit non-Indian mother in a voluntary placement."

But the Agency's argument is contrary to the explicit language of 25 U.S.C. §
1915(a), which makes ICWA's placement preferences applicable to "any adoptive
placement of an Indian child." Moreover, this issue was resolved, albeit in a different
19



context, by the United States Supreme Court in Mississippi Choctaw Indian Band v.
Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). There, the Mississippi
Band of Choctaw Indians argued ICWA's jurisdictional provisions applied to an attempt
by the biological Indian parents of twins to consent to their adoption by a non-Indian
family. The tribe argued that the twins, like their parents, were "domiciled" on the
reservation and the tribe had exclusive jurisdiction over their placement.

In Holyfield, the Supreme Court found that at the time of their birth, the twins
were domiciled—like their parents—on the reservation. 490 U.S. at 48-49. In so holding,
the Court noted that tribal jurisdiction under ICWA "was not meant to be defeated by the
actions of individual members of the tribe, for Congress was concerned not solely about
the interests of Indian children and families, but also about the impact on the tribes
themselves of the large numbers of Indian children adopted by non-Indians." 490 U.S. at
49. The Court reasoned:

"[I]t is clear that Congress' concern over the placement of Indian children in non-Indian
homes was based in part on evidence of the detrimental impact on the children
themselves of such placements outside their culture. Congress determined to subject such
placements to the ICWA's jurisdictional and other provisions, even in cases where the
parents consented to an adoption, because of concerns going beyond the wishes of
individual parents." (Emphasis added.) 490 U.S. at 49-50.

Thus, the Supreme Court in Holyfield held ICWA's jurisdictional provisions apply
even when both biological parents voluntarily attempt to place their Indian child with a
non-Indian family. Further, the Court expressly extended its jurisdictional holding to
ICWA's "other provisions," which include the placement provision at issue here, 25
U.S.C. § 1915(a). 490 U.S. at 49-50.

20



We also reject the Agency's implied suggestion that ICWA's placement
preferences apply only when the parental rights of Indian parents are at issue. Simply
stated, this argument is inconsistent with our recent holding in In re A.J.S. There, we
abandoned the existing Indian family doctrine and held ICWA's placement preferences
applied to the placement of A.J.S., who had both Indian and non-Indian heritage. 288
Kan. at 442.

The Agency did not comply with ICWA's placement preferences.

Although the district court's order deviating from ICWA's placement preferences
did not identify or discuss the preferences, the language of the statute at issue, 25 U.S.C.
§ 1915(a), is a good place to start with our analysis. That statute provides:

"In any adoptive placement of an Indian child under State law, a preference shall
be given, in the absence of good cause to the contrary, to a placement with (1) a member
of the child's extended family; (2) other members of the Indian child's tribe; or (3) other
Indian families." 25 U.S.C. § 1915(a).

It is undisputed that T.S.W. is an Indian child as defined in ICWA. See 25 U.S.C.
§ 1903(4) (2001) (an "Indian child" is an unmarried person under the age of 18 who is
eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe). Thus, in any "adoptive placement" involving T.S.W., ICWA required the
court to consider the three placement preferences specified in § 1915(a) in the order
specified in the statute absent good cause to the contrary. Further, the burden was on the
Agency, as the party urging deviation from the preferences, to establish good cause to do
so. See Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,594, 67,595 (November 26, 1979) (hereinafter
"BIA Guidelines").

21



In this case, we need not extensively consider whether the Agency followed the
placement preferences before seeking a deviation from those preferences. It did not.
While the Agency made some effort to satisfy the second placement preference when it
requested the Tribe provide available adoptive family profiles, the Agency impermissibly
qualified its request in at least two ways. First, the Agency provided the Tribe with
Mother's extensive "criteria" for any prospective adoptive family. Second, the Agency
specified that prospective adoptive families be able to pay the Agency's $27,500 fee
requirement. And while the Agency eventually indicated a willingness to modify its fee
based on an unspecified sliding scale, the parties never agreed as to the parameters of that
scale because Mother chose a non-Indian family based on profiles presented to her from
the Agency.

Essentially, the Agency grafted its substantial fee requirement as well as Mother's
placement criteria (which ironically specified that the adoptive parents be Caucasian)
onto ICWA's placement preferences. Common sense dictates that ICWA's placement
preferences cannot be undermined in this manner. In fact, the Agency's actions appear to
fly in the face of Congress' intent in enacting ICWA. See Holyfield, 490 U.S. at 37
(ICWA "'seeks to protect the rights of the Indian child as an Indian and the rights of the
Indian community and tribe in retaining its children in its society' . . . by establishing 'a
Federal policy that, where possible, an Indian child should remain in the Indian
community'" and ensuring that Indian child welfare determinations are not based on a
white, middle-class standard that often forecloses placement with an Indian family).

Moreover, even if we could conclude that the Agency appropriately and
thoroughly attempted to comply with ICWA's second placement preference, it is
undisputed that it made no effort to comply with ICWA's first and third preferences.
Regarding the first preference—placement with the child's extended family—an Agency
employee testified that because Mother did not want T.S.W. to be placed with Father's
22



extended family, the Agency did not ascertain whether such placement was possible.
Further, it is undisputed that the Agency made no effort to ascertain the availability of
placement with other Indian families—the third placement preference.

Instead, the district court found "good cause" under this statute to deviate from the
placement preferences, permitting T.S.W.'s placement with a non-ICWA compliant
family. Therefore, we are asked to decide whether a biological parent's preference for
placement of an Indian child can provide good cause to override ICWA's placement
preferences.

This is not an issue of first impression for this court. In B.G.J., we considered
whether the district court abused its discretion in finding good cause to deviate from
ICWA's adoptive placement preferences in granting a non-Indian family's petition to
adopt an Indian child. Both parties here rely on B.G.J. to support their opposing positions
regarding whether the district court properly found good cause to deviate from ICWA's
placement preferences in this case. For reasons discussed below, we conclude B.G.J. does
not support the district court's deviation from ICWA here.

The B.G.J. case does not support the district court's finding of good cause to deviate from
ICWA's placement preferences in this case.

In B.G.J., the tribe offered placement of the Indian child, B.G.J., with four of her
biological mother's relatives. But the mother, who was one-half Indian, selected a non-
Indian family profile from an adoption agency because she "did not want a member of the
Tribe to raise B.G.J." 281 Kan. at 555. After the prospective adoptive couple petitioned to
adopt B.G.J., the district court found good cause to deviate from ICWA's placement
preferences.

23



On review, this court held the district court did not abuse its discretion in finding
good cause to deviate from ICWA's placement preferences. 281 Kan. at 566. The court
first noted that 25 U.S.C. § 1915(c) provides that "'[w]here appropriate, the preference of
the Indian child or parent shall be considered'" and that the tribe contended that
appropriateness must be assessed in light of the congressional intent to protect the best
interest of Indian children and promote the stability of Indian tribes and families. 281
Kan. at 565.

But the B.G.J. court pointed out that while placing Indian children with Indian
families is a priority under ICWA, the legislation also provides that for good cause,
courts may deviate from the placement preferences, allowing "the state courts flexibility
in the placement of Indian children." 281 Kan. at 565. The court then noted that the BIA
Guidelines, specifically BIA Guideline F.3., permit a court to rely on "parental
preference" in deviating from ICWA's placement preferences. The B.G.J. court noted:

"It [BIA Guideline F.3] states that the good cause determination 'shall be based on one or
more of the considerations.' (Emphasis added.) It does not limit the consideration which
may be given to the mother's preference. Here, the mother knowingly and with full
knowledge of the ICWA preferences executed her relinquishment. She was adamant that
her child be placed with the adoptive parents, and not with her extended family or the
Tribe." 281 Kan. at 565.

Relying upon this language in this case, the Agency contends B.G.J. supports the
district court's decision to deviate from ICWA based upon Mother's "strong desire to
place with the adoptive couple of her choosing." However, we do not read B.G.J. so
narrowly.

24



While B.G.J. emphasized the mother's preference, it also specifically noted that
the district court based its determination on two of the three factors suggested by BIA
Guideline F.3. as a basis for deviation from the guidelines. The court concluded:

"B.G.J. had no extraordinary physical or emotional needs. Hence, the trial court
based its determination on the other two factors. Giving as much if not more weight to the
unavailability of suitable families offered by the Tribe for placement as to the birth
mother's request, the trial court determined that good cause existed to deviate from the
statutory preferences. The trial court's analysis is in accord with the federal statutes and
guidelines. We hold the district court did not abuse its discretion in finding that good
cause existed to deviate from ICWA's placement preferences." (Emphasis added.) 281
Kan. at 565-66.

Thus, this court in B.G.J. did not base its decision to deviate from ICWA's
placement preferences solely, or even mostly, on the mother's placement preference. But
to the extent our opinion in B.G.J. can be read to suggest that a parent's preference can
solely override ICWA's placement preferences, we disapprove that language as dicta.

Further, we find B.G.J. distinguishable in several key respects. Significantly,
although the birth mother did not want B.G.J. placed with extended family, the district
court made fairly extensive findings of fact and conclusions of law regarding the
unsuitability of the four relatives offered by the tribe as potential placements for B.G.J.
This court then relied on those findings in concluding the district court did not abuse its
discretion in deviating from the placement preferences. 281 Kan. at 566.

In contrast, in this case the district court made no such findings regarding the
availability of placement with either natural parent's extended family or the availability of
Tribe families. Instead, the court expressly noted that "[n]either of [the birth mother's or
birth father's] families were [sic] considered as the birth mother did not want placement
25



with them." And regarding the Cherokee Nation families offered by the Tribe, the court
held: "An additional seventeen (17) to twenty (20) families were presented which the
birth mother did not like and rejected." Significantly, the court further commented that
"[t]here is no evidence to show that any of these families were disqualified for any legal
or practical reason."

Thus, the district court in this case did not rely upon the unavailability of either
T.S.W.'s extended family or the families offered by the Tribe. Instead, the court permitted
Mother's desire not to place T.S.W. with extended family or any of the potential adoptive
Tribe families to override these preferences.

B.G.J. is distinguishable in another significant respect. Namely, the district court
there considered whether to deviate from ICWA's placement preferences in the context of
an adoption proceeding filed by the adoptive parents chosen by the mother. In ultimately
determining that placement with the adoptive parents served the best interest of the child,
the district court pointed out that the adoptive parents were experienced parents and
foster parents who were socially and economically stable and who had provided a social
assessment (unlike the extended family members offered by the tribe in that case).
Further, the district court found that B.G.J. had "admittedly bonded with" the adoptive
family, with whom the child was placed shortly after birth. 281 Kan. at 558-59.

The Agency points out that the district court in this case also referenced "the best
interest of the child" in deviating from the placement factors. However, unlike in B.G.J.,
the district court's reference to the best interest of the child in this case was not made in
the context of an adoption proceeding, since no such proceeding had been filed. In fact,
the court's order makes no reference whatsoever to T.S.W.'s temporary placement or to
the potential adoptive parents other than to indicate that the "subject minor child has been
with the prospective adoptive couple since December 2009." Thus, the court's reference
26



to the "best interest of the child" is confusing at best and appears to be based, like the
court's other conclusions, on Mother's placement preference.

Because of its distinct facts, procedural context, and holding, we conclude B.G.J.
does not support the district court's decision in this case to deviate from ICWA based
solely on Mother's preference to place T.S.W. with a non-Indian family of her choice.
Therefore, we next consider whether the district court's holding can stand under the
factual circumstances of this case.

"Parental preference" has limited application in considering good cause to deviate.

The Tribe contends the parental preference referred to in 25 U.S.C. § 1915(c) has
only limited application and is not meant to entirely override the placement preferences
of § 1915(a). Specifically, the Tribe argues that parental preference can support a finding
of good cause to deviate from the order of consideration of ICWA's placement
preferences only in the limited situation in which the consenting parent desires
anonymity. In support, the Tribe points to the complete text of 25 U.S.C. § 1915(c), BIA
Guidelines F.1. and F.3., and the commentary to those guidelines.

Notably, the Agency entirely fails to respond to this argument and instead relies
simply on this court's decision in B.G.J. as support for its contention that 25 U.S.C.
§ 1915(c) permits a parent's preference to override the placement preferences of 25
U.S.C. § 1915(a). But we were not presented in B.G.J. with the argument that the parental
preference provision of 25 U.S.C. § 1915(c) is limited to situations in which a consenting
parent requests anonymity with respect to the placement of the child. Nor are we
precluded from considering that issue now.

27



Significantly, in B.G.J. we recognized that 25 U.S.C. § 1915(c) provides in part
that where appropriate, in considering the placement preferences of 25 U.S.C. § 1915(a),
"the preference of the Indian child or parent shall be considered." 281 Kan. at 565. But
we did not consider the entire text of subsection (c). Instead, we omitted the proviso to
that subsection which lends context and meaning to the scope of the parental preference
language. Specifically, § 1915(c) states in full:

"In the case of a placement under subsection (a) or (b) of this section, if the
Indian child's tribe shall establish a different order of preference by resolution, the agency
or court effecting the placement shall follow such order so long as the placement is the
least restrictive setting appropriate to the particular needs of the child, as provided in
subsection (b) of this section. Where appropriate, the preference of the Indian child or
parent shall be considered: Provided, That where a consenting parent evidences a desire
for anonymity, the court or agency shall give weight to such desire in applying the
preferences."

Thus, the entire text of 25 U.S.C. § 1915(c) indicates that a district court should
modify the order of preferences in 25 U.S.C. § 1915(a) when (1) the tribe establishes a
different order under certain circumstances or (2) a consenting parent seeks anonymity
with respect to the placement of the child.

This interpretation is bolstered by BIA Guideline F.1. That guideline, which also
was not discussed in B.G.J., closely tracks 25 U.S.C. § 1915(a) and (c). BIA Guideline
F.1.(c) provides: "Unless a consenting parent evidences a desire for anonymity, the court
or agency shall notify the child's extended family and the Indian child's tribe that their
members will be given preference in the adoption decision." (Emphasis added.) BIA
Guidelines, 44 Fed. Reg. 67,594 (November 26, 1979). See also In re M.F., 290 Kan.
142, 143, 225 P.3d 1177 (2010) (recognizing BIA guidelines should be considered by
district courts in applying ICWA).
28




The commentary to BIA Guideline F.1. further explains that § 1915(a):

"makes clear that preference shall be given in the order listed in the Act. The Act clearly
recognizes the role of the child's extended family in helping to raise children. The
extended family should be looked to first when it becomes necessary to remove the child
from the custody of his or her parents. . . .
. . . .
"The third subsection [of Guideline F.1.] recommends that the court or agent
make an active effort to find out if there are families entitled to preference who would be
willing to adopt the child. This provision recognizes, however, that the consenting
parent's request for anonymity takes precedence over efforts to find a home consistent
with the Act's priorities." (Emphasis added.) BIA Guidelines, 44 Fed. Reg. 67,594
(1979).

While we did not discuss the full text of 25 U.S.C. § 1915(c) or BIA Guideline
F.1. in B.G.J., we did consider BIA Guideline F.3., which discusses the meaning of the
term "good cause." 281 Kan. at 565. We pointed out that the guideline should be
considered by district courts when deciding whether to deviate from ICWA's placement
preferences in an adoptive placement. BIA Guideline F.3. provides:

"(a) For purposes of foster care, preadoptive or adoptive placement, a
determination of good cause not to follow the order of preference set out above shall be
based on one or more of the following considerations:

(i) The request of the biological parents or the child when the child is of
sufficient age.

(ii) The extraordinary physical or emotional needs of the child as established by
testimony of a qualified expert witness.

29



(iii) The unavailability of suitable families for placement after a diligent search
has been completed for families meeting the preference criteria.

"(b) The burden of establishing the existence of good cause not to follow the
order of preferences established in subsection [F.2.](b) shall be on the party urging that
the preferences not be followed." (Emphasis added.) BIA Guidelines, 44 Fed. Reg.
67,594 (November 26, 1979).

However, we did not discuss in B.G.J. the relevant commentary to BIA Guideline
F.3., which again supports the Tribe's argument regarding the limitations of the parental
preference language: "The Act indicates that the court is to give preference to
confidentiality requests by parents in making placements. Paragraph (i) is intended to
permit parents to ask that the order of preference not be followed because it would
prejudice confidentiality or for other reasons." (Emphasis added.) BIA Guidelines, 44
Fed. Reg. 67,594.

We should point out that while we did not discuss the confidentiality issue in
B.G.J., it appears that confidentiality may have been relevant there. The Court of Appeals
panel noted that mother did not disclose her pregnancy and extended family members
were unaware of the pregnancy until the child's birth. See In re Adoption of B.G.J., 33
Kan. App. 2d 894, 905, 111 P.3d 651, rev. granted 280 Kan. 982 (2005). Thus, the panel
speculated that mother's confidentiality may have been the reason none of the prospective
adoptive family members were subjected to social assessments before being considered
as possible placement for the child. 33 Kan. App. 2d at 905.

In any event, in light of the text of 25 U.S.C. § 1915(c), BIA Guidelines F.1. and
F.3., and the commentary to both of those guidelines, we are persuaded that the "parental
preference" referred to in § 1915(c) was not intended to permit a biological parent's
preference for placement of a child with a non-Indian family to automatically provide
30



"good cause" to override the adoptive placement preferences of 25 U.S.C. § 1915(a).
Instead, a parent's request 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 ICWA's placement references.
See B.G.J., 281 Kan. at 565 (holding that "[t]he best interest of the child remains the
paramount consideration, with ICWA preferences an important part of that
consideration").

Our holding is consistent with at least one other jurisdiction that has analyzed and
considered the confidentiality aspect of 25 U.S.C. § 1915(c)'s parental preference
provision. In Matter of M.B., 350 Mont. 76, 82, 204 P.3d 1242 (2009), the Montana
Supreme Court concluded the commentary to BIA Guideline F.3. "indicates the purpose
of this exception is to protect the biological parents' confidentiality, if they so choose."
Because the biological parents did not seek to protect their confidentiality in that case, the
court held the exception did not apply to the parents' request that their children be placed
with their current foster family. 350 Mont. at 82-83. But see In re B.B.A., 224 P.3d 1285,
1287-88 (Okla. App. 2009) (holding that the "persuasive language" of BIA Guideline F.3.
"authorizes reliance upon only one factor to establish the existence of good cause" and
that one factor could be the request of the biological parents).

Returning to the facts of this case, we note that the record contains no indication
that Mother requested confidentiality with respect to T.S.W.'s placement. Rather, Mother
simply did not want T.S.W. placed with Father's extended family members or members
of the Tribe. Applying the above analysis, we conclude the district court erred in
permitting Mother's preference to override ICWA's placement factors absent some
request for confidentiality. Accordingly, we reverse the district court's decision deviating
from ICWA's placement preferences in this case.