State v. Knudtson

1

NOT DESIGNATED FOR PUBLICATION

No. 118,966

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE INTEREST OF C.E.,
A Minor Child.


MEMORANDUM OPINION


Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed August 31, 2018.
Affirmed in part and remanded with directions.

Aline E. Pryor, of Kansas City, for appellant father.

Kayla Roehler, assistant district attorney, and Mark A. Dupree Sr., district attorney, for appellee.

Before MALONE, P.J., MCANANY and POWELL, JJ.

PER CURIAM: The district court terminated the parental rights of the Father of
C.E., whom we will refer to as the Child. Father appeals, contending (1) he did not
receive a fair trial, (2) the district court erred in presuming he was unfit when no statutory
presumptions applied, and (3) the State failed to complete the inquiry into the child's
status under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2012).

Facts

These proceedings were prompted by a report on January 24, 2017, to the
Department of Children and Families (DCF) that Father, age 56, had abused and
neglected the Child, his 15-year-old daughter. The Child had lived alone with Father
since she was 9 years old when her mother passed away. It was reported to DCF that
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Father often got drunk, smoked heavily, frequently became angry, followed the Child
wherever she went, did not allow her to speak to anyone, and forced the Child to sleep
naked without a blanket. DCF took the Child into emergency protective custody.

Two days later, on January 26, 2017, the Child was interviewed by DCF social
worker Monica McGlory. The Child said she was suicidal and refused to return to her
Father's home. McGlory noted concerns about sexual, emotional, and physical abuse.
The Child was transferred to Marillac for acute inpatient treatment.

The next day, on January 27, 2017, the State commenced child in need of care
(CINC) proceedings. The district court found that an emergency existed and issued an
order of temporary custody.

On February 22, 2017, Father submitted family information in a Native American
Heritage Affidavit, which was sent to the Cherokee Nation headquarters in Tahlequah,
Oklahoma.

On May 18, 2017, the court determined that the Child was in need of care because
she: (1) was "without adequate parental care, control or subsistence and the condition is
not due solely to the lack of financial means of the child's parent or other custodian;" (2)
was "without the care or control necessary for the child's physical, mental or emotional
health;" and (3) had been "physically, mentally, or emotionally abused or neglected, or
sexually abused." The court adopted interim orders to facilitate reintegration, including
instructions for required assessments, income and housing, parenting classes, and drug
testing. Father was not allowed visitation with the Child until further order of the court.

On June 6, 2017, the State received a letter from the Cherokee Nation
acknowledging that it received a request for determination of the Child's tribal eligibility.
But it found the information that was sent to be incomplete. It had sent a request for
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additional information over 60 days prior but had received no response. It advised the
State that it was closing the inquiry, but noted: "Closure of your inquiry does not remove
your responsibility for tribal determination under the ICWA if such information exists."

On June 22, 2017, the district court found that the ICWA applicability was
undetermined. The court also found that reintegration was no longer a viable goal and
ordered that the goal of further proceedings should be either adoption or a permanent
custodianship.

On July 11, 2017, the State filed a motion to terminate Father's parental rights to
the Child. The State alleged that Father failed to comply with court orders to provide
verification of housing, failed to complete a risk assessment, and did not maintain contact
with the court services officer. Testimony in the termination proceedings was received at
the hearing on October 19, 2017. The matter was then continued to December 5, 2017,
for the parties to make their final arguments to the court.

At the termination hearing on October 19, 2017, the Child entered the courtroom
with a blanket over her head so as not to see her Father. She was allowed to testify from
behind a screen while being accompanied by "comfort people" who were permitted to sit
with her during her testimony.

Father objected to the used of the screen and permitting "comfort people" to sit
with the Child while she testified. Father argued that use of the screen violated his right
to confront and to view the witness. The district court observed that the constitutional
right to confront witnesses did not apply in these civil proceedings and overruled Father's
objection to use of the screen. Father also argued that the comfort people were likely to
influence the Child's testimony with verbal or nonverbal cues. The district court
overruled this objection but allowed Father's counsel to sit in a spot where he could
observe the Child and the comfort people behind the screen to make sure no signals were
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passed between the "comfort people" and the witness. The court admonished the comfort
people against giving any "verbal or nonverbal cues to [the witness] as to what an answer
should be, or what she should say or do."

Shannon Bisel, a social worker and interview specialist at Sunflower House,
testified that the Child told her that Father beat her, yelled at her, and grabbed her hair.
He punched her, leaving a mark on her stomach. He frequently sprayed hot water in her
face and called her names. He called her a slut and locked her out on the balcony in the
snow. If she dropped something accidentally, Father would not let her eat for as much as
a couple of days. She was not allowed to sleep with clothes or a blankets. Father would
sleep with her or watch her sleep. There were often times when Father would put his
hand on her vagina and move it up and down.

Christine Schmitt, the Child's therapist, testified that the Child told her that she
wanted to kill herself because she was concerned about being placed back with Father.
The Child had "flashback memories, she wants them to stop, and she couldn't figure out
any other way to make them stop than to kill herself." After one therapy session when the
Child blamed herself for not protecting her mother from abuse by Father, the Child drank
toilet bowl cleaner and was hospitalized. The Child told Schmitt that Father physically
abused her after she had surgery and Father often called her names. She also told Schmitt
that Father made her sleep naked. She said Father put his penis inside of her. She said
that when she got into trouble, Father would not allow her to eat. She told Schmitt that
she would kill herself if she had to go back to her Father.

Valeri Tuley, therapist with The Villages, testified that the Child told her that
Father had physically and sexually abused her. The Child said she generally slept with
her Father and was usually wearing nothing. She decided to start being a boy because she
felt safer that way and thought no one would try to sexually abuse her. Tuley said that the
Child's suicidal thoughts were triggered by flashbacks of her Father's abuse. Tuley stated
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that the Child's "biggest fear right now is that they would make her go back home to live
with her father."

Father called three witnesses, Cynthia Moses, Jay-Jay Thomas Shaffer, and
Kaitlyn Barden. Moses, a clinical social worker with Transitional Counseling Services,
saw Father for about 10 sessions of therapy. She said that Father denied sexually abusing
the Child. He implied that the Child might be having some mental health and substance
abuse issues. Moses recommended family therapy if reintegration were an option, but
acknowledged that family therapy would be contraindicated if the Child was adamant
about committing suicide if forced to participate.

Shaffer testified that the Child was his half-sister by the same mother. Shaffer was
surprised by the abuse allegation. He said that the Child never told him Father was
abusing her. The Child told him that she wanted to return home and she had made a
mistake. She told Shaffer to tell Father that she loved and missed him.

Barden, Shaffer's girlfriend, testified that the Child told her she was scared that
Father was going to jail. She said the Child missed her Father and wanted to come home.
Barden never witnessed any abuse by Father.

The district court terminated Father's parental rights to the Child, finding Father to
be unfit

 for conduct toward the Child of a physically, emotionally or sexually cruel
or abusive nature (K.S.A. 2017 Supp. 38-2269[b][2]); and
 for physically, mentally, or emotionally neglecting the Child (K.S.A. 2017
Supp. 38-2269[b][4]).

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The district court also found that the conditions of unfitness were unlikely to change in
the foreseeable future, and it was in the Child's best interests to terminate Father's
parental rights. Father's appeal brings the matter to us.

Child Testifying Behind a Screen

Father argues the he was denied a fair trial when the court refused to permit him to
view the Child's demeanor while she testified behind a screen. Father cites an article in
the Kansas Bar Journal, Haney, The Child Victim/Witness: Balancing of
Defendant/Victim Rights in the Emotional Caldron of a Criminal Trial, 62 J. K.B.A. 38
(January 1993). He fails to explain how the information in the article, which apparently
related to criminal trials, supports his specific argument here.

Father states that he should have been permitted to see the Child as she testified
"to determine whether she was lying or not." Father suggests that technology should have
been used so that she could have testified under "calmer circumstances."

Father couches the district court's action as an abuse of discretion. A judicial
action constitutes an abuse of discretion if (1) no reasonable person would take the view
adopted by the trial court; (2) is based on an error of law; or (3) is based on an error of
fact. Wiles v. American Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071
(2015). The party asserting an abuse of discretion bears the burden of showing it. In re
K.E., 294 Kan. 17, 23, 272 P.3d 28 (2012).

K.S.A. 2017 Supp. 60-243(a) sets the baseline standard for a witness' testimony in
a civil proceeding: the testimony of a witness "must be taken in open court." But this
statute further provides: "For good cause and in compelling circumstances and with
appropriate safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location." K.S.A. 2017 Supp. 60-243(a).
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More specifically in CINC proceedings, K.S.A. 2017 Supp. 38-2249(d), on motion of any
party, the court may permit a child under the age of 13 who has been physically,
emotionally, mentally, or sexually abused to testify via video rather than requiring the
child to testify in court. The Child in our present case was over 13 years of age.

Here, the court required the traditional in-court testimony of the Child, but it
allowed the use of a screen to prevent the Child from seeing Father as she testified.
Nevertheless, Father was able to hear all of the testimony, and Father's counsel was in a
position to observe the Child's demeanor. The court observed:

"The right to confront a witness is a constitutional right in a criminal prosecution.
This is not a criminal prosecution. So this Court is of the opinion that a physical barrier
between a witness and a defendant in a criminal prosecution does not violate their right to
confront.
"The—the attorney will have an opportunity to view the witness. The Court
views the witness.
"And I believe that a child witness who is alleged to be the victim of a sexual
assault—that these are reasonable accommodations that would not violate a defendant's
right to confrontation.
"However, we don't even need to get to that, because this is not a criminal
prosecution, and there is no a constitutional right to confront the witness.
"I am perfectly satisfied that [Father]'s rights are not being violated by this
physical barrier that prevents the witness from seeing him and him from seeing the
witness during the time that they testify.
"So that objection will be overruled."

The district court was correct in finding that the Sixth Amendment's Confrontation
Clause is limited to a defendant's right in a criminal case. See In re J.D.C., 284 Kan. 155,
165,159 P.3d 974 (2007). The Confrontation Clause of the Sixth Amendment offers
Father no protection.

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Father was represented by counsel at the final hearing. He was not deprived of the
opportunity, through his counsel, to observe the child's demeanor and question her on
cross-examination. Moreover, the Child provided little in the way of substantive
testimony from the stand on the specific acts of abuse and neglect. Most of her answers
were that she did not know or did not remember. The substantive evidence was presented,
for the most part, through the testimony of her social worker and therapists. The district
court did not abuse its discretion in permitting the Child to testify from behind a screen,
and the use of the screen did not deprive Father of a fair trial.

Father in Handcuffs

Father's next claim arose from events beginning the day before the termination
hearing. That day, Father was charged with aggravated indecent liberties. The following
day, during a recess in these termination proceedings, Father was arrested and placed in
handcuffs. When court resumed, Father's counsel objected to the fact that the Child was
present when Father was arrested. Father's counsel stated:

"So part of my complaint here, Judge, is that while the victim—alleged victim
was sitting in the courtroom, my client was cuffed. And I'm certain she heard—in fact,
what was being said and what was going on, which certainly doesn't help him and could
very definitely influence her testimony. So that's—that's an issue."

Father's counsel did not explain, and the record does not disclose, what was said
during this incident that he claims the Child overheard. He stated: "[T]here are two
separate issues as far as I'm concerned. One is prejudice to the Court. The other is,
quote/unquote, prejudice to the witness, in other words, feeling that she's bolstered,
supported, something of that nature."


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The court responded:

"I don't think the issue of prejudice before the Court, before the fact finder is—is really
an issue . . . I have to be honest with you. I could care less, in . . . terms of my decision
making in this case, whether or not . . . the father is criminally charged, whether or not a
warrant has been executed upon him or not.
"So taking your issues as they came, . . . there is no prejudice before the Court.
"Secondly, the prejudice to a witness's testimony and how that might alter a
witness's testimony is not exactly clear to me. And by saying that, I'm not saying that it
can't; but certainly, it could be explored on cross-examination. I just don't know that there
is a, per se, prejudice to a witness knowing that—even when the witness is the
complaining witness in a case—that a warrant has been executed based on what they've
alleged at least outside of the courtroom."

Because Father did not seek any specific relief, the court stated: "I think you've
preserved it well for the record. . . . A, I don't know what the remedy would be. And B, I
don't see any prejudice to your client."

On appeal, Father directs his attention only to the possible influence this incident
had on the Child. He asserts that the Child "saw Father handcuff[ed] during the entirety
of Father's first appearances [sic] and could hear the entire discussion of the alleged
crime." There is no evidence that this incident involved a first appearance. What is clear
from the record is that Father was arrested and nothing more.

The only case cited by Father, In re A.E.S., No. 108,584, 2013 WL 2992733 (Kan.
App. 2013) (unpublished opinion), does not involve the potential prejudice to a witness
who was present while a parent was handcuffed in court. The case merely mentions the
fact that watching her Father being arrested and handcuffed after the battery of a neighbor
emotionally affected the minor child. 2013 WL 2992733, at *2, 5. We do not find this
case to be particularly helpful.

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For the first time on appeal, Father argues that the district court should have
analyzed whether there was a fundamental failure in the proceeding and whether it could
continue the termination hearing without an injustice. But that is what the court, in
essence, did in concluding that whatever happened in his courtroom did not prejudice
Father.

We have no record of what was said, if anything, about Father's charged crime
during this incident, and Father had the opportunity to inquire of the witness about this
incident during cross-examination. He did not do so. Moreover, Father never asked for
any relief when this incident arose; he merely memorialized the incident on the record.

We place a great deal of confidence and deference in the trial judge regarding an
incident such as this that occurred in his courtroom. The Child was reluctant in her
answers during her direct examination before this incident occurred. In her brief direct
testimony that continued after this incident, which takes up only about three pages of the
trial transcript, she did not address any of the substantive issues in the case. Her direct
examination concluded:

"Q. . . . Did some bad things happen to you when you lived at your dad's house?
"A. I don't want to talk about it."

Her manner of testifying did not change during cross-examination. Most
importantly, she was not asked about the details of any of the State's alleged bases for
seeking termination of Father's parental rights. If she had been influenced by whatever
happened during Father's arrest, she certainly did not act upon it in her testimony that
followed. Consequently, we find no abuse of discretion in the district court's decision to
continue the termination hearing. The district court stated that it did not see any
prejudice, and the Child's continued testimony did not disclose any prejudice on her part
arising from her Father's arrest.
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Claimed Newly Discovered Evidence

Next, Father argues he was denied a fair trial when the district court refused to
reopen the case to permit him to present what he claimed was newly discovered evidence.

Under K.S.A. 2017 Supp. 60-259(a)(1)(E), the district court may grant a motion
for new trial based on newly discovered evidence if the evidence is material and could
not have been discovered and produced at trial. It is within the discretion of the district
court to grant or deny a motion for a new trial under K.S.A. 60-259(a). A ruling on a
motion for new trial will not be disturbed on appeal absent a showing of an abuse of
discretion. Miller v. Johnson, 295 Kan. 636, 684-85, 289 P.3d 1098 (2012).

The evidence in this termination hearing was presented on October 19, 2017, after
which the parties rested. On December 5, 2017, the court reconvened for the parties to
make their closing arguments. Just prior to closing arguments, Father's counsel asked to
reopen the evidence. Counsel alleged that Father told her that the Child's grandparents,
Shaffer, and Barden told Father that the Child wanted to recant her allegations and "come
back home." The Child's communication allegedly took place over Facebook. Father's
counsel's request was based solely on Father's triple hearsay of what Father hold him that
family members said that the Child said. Counsel apparently did not contact Shaffer,
Barden, or the grandparents to confirm any of this or confirm that any Facebook
communications had been made. Father did not present an affidavit or proffer any
evidence other than this triple hearsay that the Child did, in fact, recant her allegations of
abuse.

In response the district court noted that Shaffer and Barden had previously stated
in their testimony that the Child wanted to be home and she said she may have made a
mistake. As the court stated, that was not new evidence. The court stated:
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"The only thing that would qualify as new evidence would be if the child did, in fact,
recant and say, 'What I said happened did not happen.' That would be evidence. That's not
what I'm hearing today. I'm hearing that the child is making—I—I don't know—says she
wants to take it back."

But the court noted that if the Child did in fact recant her testimony, the court would be
open to considering the testimony. "I think that's newly discovered evidence. . . . And I
would certainly take that into consideration. But at this point, this—this case needs to be
decided. The evidence was closed."

At this final portion of the termination hearing Father was present with his
counsel, but the Child was not present. It does not appear that the grandparents, Shaffer,
or Barden were present. The purpose of these final proceedings was for the parties to
present their final arguments. Opening the evidence at this point would require a further
continuance of the matter because the witnesses were not present. Further, the court
would have to delay the final arguments of the parties.

The district court did not formally express an outright denial of Father's counsel's
oral motion. We take the district court's remarks as an open invitation to Father's counsel
to pursue the matter at a later time. While the court orally ruled from the bench after the
parties' closing arguments, the judgment was not effective until the filing of the Journal
Entry of Judgment on December 13, 2017. Even though the district court stated that its
door would be open if Father came forward with newly discovered evidence, Father did
not pursue the matter further. Accordingly, we find no abuse of the district court's
discretion.

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Finding of Unfitness

Father argues that the district court erred in presuming that Father was unfit when
none of the unfitness presumptions existed. Father's argument is confusing. Under K.S.A.
2017 Supp. 38-2271, a presumption of unfitness applies when certain conditions are
present. Father predicates judicial error on an improper application of one of these
presumptions. But he does not say which one and he makes no argument that the district
court erroneously applied any presumption of unfitness. In fact, we do not find in the
record any reliance by the district court on any presumption. Rather, the district court
correctly proceeded under K.S.A. 2017 Supp. 38-2269, which does not set forth any
presumption of unfitness.

The argument that Father does make is that there was not clear and convincing
evidence to support the termination of his parental rights. He challenges both the district
court's finding that he was unfit and the district court's finding that termination was in the
Child's best interests.

The Revised Kansas Code for Care of Children provides that the district court may
terminate parental rights only if it makes three findings: (1) that there is clear and
convincing evidence that the parent is unfit due to conduct or condition which renders the
parent unable to care properly for the child; (2) that the conduct or condition that makes
the parent unfit is unlikely to change in the foreseeable future; and (3) that termination of
parental rights is in the best interests of the child. K.S.A. 2017 Supp. 38-2269(a) and
(g)(1); see In re D.H., 54 Kan. App. 2d 486, 488, 401 P.3d 163 (2017).

Clear and convincing evidence requires the fact-finder to believe "that the truth of
the facts asserted is highly probable." In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594
(2008). When determining whether factual findings are supported by clear and
convincing evidence, we do not reweigh conflicting evidence, pass on the witnesses'
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credibility, or redetermine questions of fact. In re Adoption of B.B.M., 290 Kan. 236, 244,
224 P.3d 1168 (2010). The foreseeable future in CINC proceedings is viewed from a
child's perspective because a child's perception of time differs from that of an adult.
K.S.A. 2017 Supp. 38-2201(b)(4); In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711
(2014); In re S.D., 41 Kan. App. 2d 780, 790, 204 P.3d 1182 (2009).

— Physically, Emotionally, or Sexually Cruel or Abusive Conduct

The district court found that this factor applied to Father. See K.S.A. 2017 Supp.
38-2269(b)(2). The Child told Bisel that Father beat her, yelled at her, and grabbed her
hair. The Child reported that she was punished by being sprayed in the face with hot
water or locked outside on the balcony in the snow. Father withheld food from her as
punishment when she accidentally dropped something. The Child told Bisel that she was
not allowed to sleep with clothes or a blanket, and Father sexually abused her. She
disclosed similar allegations of abuse to Schmitt and Tuley. In addition, the Child told
Schmitt that she wanted to kill herself because she was concerned about being placed
back in Father's home. She also told Tuley that her Father had physically and sexually
abused her. Tuley said that the Child's suicidal thoughts were triggered by flashbacks of
her Father's abuse and that the Child's biggest fear was being forced to go back home to
live with her Father.

The testimony provided by the State's witnesses provided sufficient evidence to
find Father unfit under this factor.

— Physical, Mental, or Emotional Neglect

The record contains evidence in support of this factor as well. See K.S.A. 2017
Supp. 38-2269(b)(4). As previously noted, several witnesses testified as to the physical,
mental, and emotional neglect that the Child suffered under Father's care. The record is
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replete with evidence of the Child's reports of physical, mental, or emotional neglect. The
testimony provided by the State's witnesses provided sufficient evidence to find Father
unfit under this factor.

Father's argument that the State failed to prove that he was unfit is unpersuasive. It
is not our role to reweigh the evidence, and we must view the evidence in favor of the
prevailing party. There is clear and convincing evidence in the record to support the
district court's determination that Father was unfit by reason of conduct or condition
which rendered him unfit to care properly for the Child. See K.S.A. 2017 Supp. 38-
2269(a).

— Unlikely to Change in the Foreseeable Future

Father claims he did not lack the effort to change his circumstances to meet the
Child's need for care.

The district court ruled that Father's behavior was unlikely to change in the
foreseeable future. See K.S.A. 2017 Supp. 38-2269(a). The foreseeable future in CINC
proceedings is viewed from a child's perspective because a child's perception of time
differs from that of an adult. K.S.A. 2017 Supp. 38-2201(b)(4); In re M.H., 50 Kan. App.
2d at 1170; In re S.D., 41 Kan. App. 2d at 790.

The court may predict Father's future continued unfitness based on his past
behavior. See In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982). Here, the
Child's allegations of abuse covered a period of six years.

The Child threatened to commit suicide if placed back in her Father's home, and
her biggest fear was returning home. Under these circumstances, the court found that
reintegration was not a viable alternative.
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The Child was 15 years old at the time of the termination hearing, and any chance
for adoption or a permanent guardianship would need to be pursued before she reached
the age of majority. Courts do not have to gamble with a child's future nor experiment
with the child's welfare before taking action. A child should not have to endure the
inevitable to his or her detriment in order to give the parent an opportunity to prove his or
her fitness as a parent. In re Price, 7 Kan. App. 2d at 480 (quoting In re East, 32 Ohio
Misc. 65, 69, 288 N.E.2d 343 [1972]). We find clear and convincing evidence in the
record to support the district court's determination that Father's unfitness was unlikely to
change in the foreseeable future.

— Best Interests of the Child

Finally, we consider the Father's challenge to the district court's finding that
terminating his parental rights was in the Child's best interests. See K.S.A. 2017 Supp.
38-2269(g)(1). The district court was in the best position to determine the best interests of
the child, and we cannot overturn that determination without finding an abuse of
discretion. In re K.P., 44 Kan. App. 2d 316, 322, 235 P.3d 1255 (2010).

In determining the best interests of a child, "the court shall give primary
consideration to the physical, mental, and emotional health of the child. If the physical,
mental, or emotional needs of the child would be best served by termination of parental
rights, the court shall so order." K.S.A. 2017 Supp. 38-2269(g)(1). The court should
weigh the benefits of permanency for the child without the presence of a parent against
the continued presence of the parent and the attendant issues created in the child's life.
The court should further consider the relationship between the parent and children and
the trauma that may be caused by termination. See In re K.R., 43 Kan. App. 2d 891, 903-
04, 233 P.3d 746 (2010).

17

The record shows that the district court properly considered the Child's best
interests when terminating Father's parental rights. Father contends that there is no firm
basis to determine whether his conduct was inappropriate and that the court should have
ordered supervised visitation through a one-way webcam or video chat. The district court
found that if it were to try to allow reintegration with Father that it would be putting the
Child's "very life at stake." Even if alternatives existed, we find no abuse of discretion in
the district court's finding that it was in the best interests of the Child to terminate
Father's parental rights.

Indian Child Welfare Act

Finally, Father argues that the district court failed to require the State to complete
the inquiry into the Child's status as an Indian Child under the ICWA. Compliance with
ICWA 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).

The ICWA, 25 U.S.C. § 1901 et seq. (2012), applies to involuntary proceedings to
terminate the parental rights of parents of Indian children. 25 U.S.C. § 1903(l)(ii) (2012);
25 U.S.C. § 1911(a) (2012). In Kansas, a child in need of care proceeding is generally
governed by the Revised Kansas Code for Care of Children, K.S.A. 2017 Supp. 38-2201
et seq., "'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 of
1978 . . . applies.'" In re M.F., 290 Kan. 142, 148-49, 225 P.3d 1177 (2010.) An "'Indian
child' means any unmarried person who is under age eighteen and either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe." 25 U.S.C. § 1903(4).

Tribal courts have exclusive jurisdiction over proceedings involving children
residing on or domiciled within a reservation and concurrent jurisdiction with state courts
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over foster care or termination of parental rights proceedings involving children not
domiciled on a reservation. See In re M.F., 290 Kan. at 149 (citing 25 U.S.C. §1911[a]).

Father submitted family information in his Native American Heritage Affidavit on
February 22, 2017, which was sent to the Cherokee Nation headquarters in Tahlequah,
Oklahoma. On June 6, 2107, the State received a letter from the Cherokee Nation noting
that its previous request for more information to determine the Child's heritage went
unanswered. As a result, the Cherokee Nation closed the inquiry with the caveat:
"Closure of your inquiry does not remove your responsibility for tribal determination
under the ICWA if such information exists." On June 22, 2017, the district court found
that the ICWA applicability was undetermined.

The State concedes that the facts of this case are nearly identical to those in In re
D.H., 54 Kan. App. 2d at 504. In that case, the Cherokee Nation sent a reply to the State
noting that it was impossible for the Cherokee Nation to confirm or deny the eligibility
for enrollment in the tribe without the specified information. No further action was taken
to provide additional information to the Cherokee Nation. A panel of this court found:

"If the evidence suggests the court is dealing with an Indian child, the court must
consider the child to be an Indian child until the tribe advises otherwise. The Bureau of
Indian Affairs Guidelines, in effect at the time of the termination of parental rights here,
control here. They state, 'If there is any reason to believe the 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.' BIA Guidelines for State Courts and Agencies in Indian Child Custody
Proceedings, 80 FR 10146 Section A.3(d) (February 25, 2015)." 54 Kan. App. 2d at 502.

The court noted that notice to the tribe was mandatory under ICWA, and the State
had an obligation to provide the missing information. Regarding the notification
requirements, the BIA Guidelines state that "[t]he notice requirement includes providing
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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." BIA Guidelines for State Courts and Agencies in Child Custody Proceedings, 80
Fed. Reg. 10,146 B.6(1) (Feb. 25, 2015).

Here, the record does not contain any additional information about the State's
response to the Cherokee Nation's request for additional information. According to the
Guidelines, "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." BIA Guidelines, Section A.3(d). Here, the court must consider the Child
to be an Indian child until the Cherokee Nation rules that she is not.

As in In re D.H., there is sufficient evidence in the record to support a finding that
Father is unfit and it is in the best interests of the Child to terminate his parental rights.
Nevertheless, we must remand the case for further proceedings to determine, after proper
notice to the Cherokee Nation, if the Child qualifies as an Indian child. See 25 C.F.R. §
23.111(d) (Dec. 12, 2016). The State concedes that its experts did not qualify as
"qualified experts" under ICWA. If the court finds that the Child is not an Indian child,
the termination ruling does not need to be set aside. But if the Child is found to be an
Indian child, then the district court must proceed under the ICWA. See In re D.H., 54
Kan. App. 2d at 504.

Affirmed in part and remanded with directions.