In re D.H., 116422

Background

Child D.H., Jr. removed from parents' custody in Nov. 2014 after both parents tested positive for methamphetamine and were incarcerated; child placed with paternal grandmother and remained out of parents' home thereafter.
Parents had long history of methamphetamine use, homelessness, domestic violence, unstable employment, criminal charges, and prior child-welfare involvement (Mother had parental rights to five other children terminated in California).
Case plan required sobriety, stable housing/employment, domestic-violence assessment, parenting classes, mental-health intake, and compliance with recommendations; parents repeatedly relapsed, missed drug screens, and failed to complete tasks.
The State moved to terminate parental rights after case-plan goal changed to adoption; termination hearing produced evidence of ongoing drug use, limited parent–child contact (no overnight visits for two years), and the guardian ad litem supported termination.
Mother alleged ineffective assistance by initial court-appointed counsel (Arkell-Roca) who procured a no-contest stipulation improperly; that attorney was later disbarred and replaced.
The Cherokee Nation responded to notice saying available information was insufficient to confirm tribal membership and requested additional lineage data; the State did not pursue or supply further information, prompting remand on ICWA notice grounds.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether clear and convincing evidence supported termination of Father's parental rights	Father: had recently begun taking responsibility, obtained housing/ employment, bond with child warranted more time	State: Father repeatedly relapsed, missed tests/visits, failed case-plan tasks; bond insufficient to overcome lack of fitness	Affirmed — record supports Father's unfitness and termination in child's best interests by clear and convincing evidence
Whether clear and convincing evidence supported termination of Mother's parental rights	Mother: entered women's recovery program pre-hearing, separated from father, obtained housing — likely to change	State: Mother had repeated methamphetamine use, prior adjudications and a presumption of unfitness (out-of-state terminations); failed to rebut presumption	Affirmed — statutory presumptions and evidence support unfitness and that conduct unlikely to change; termination in child's best interests
Whether Mother's initial counsel's misconduct required reversal without a showing of prejudice (Cronic presumption)	Mother: Arkell-Roca procured no-contest plea by fraud; prejudice should be presumed under Cronic/Carter — no need to show actual prejudice	State: Poor early representation was cured by successor counsel; long subsequent proceedings afforded meaningful adversarial testing; no prejudice shown	Rejected Cronic relief — court applied Strickland-style prejudice inquiry and found no prejudice given later counsel and overwhelming evidence of unfitness
Whether ICWA/BIA notice obligations were satisfied to the Cherokee Nation	Mother/Grandmother: tribe’s reply requested additional lineage (maiden name, DOB) — State failed to obtain or provide that info; was obligated to respond	State: tribe’s letter indicated State had complied; no further information available/required	Remanded — notice deficient; district court must provide additional information and treat child as Indian until tribe rules otherwise; if tribe confirms non-Indian status, prior termination can stand; if Indian, termination must be set aside and ICWA procedures followed

Key Cases Cited

In re B.D.-Y., 286 Kan. 686 (legal-standard for appellate review of termination: view evidence in light most favorable to State)
In re K.R., 43 Kan. App. 2d 891 (consider parent–child bond and permanency when assessing best interests)
State v. Sprague, 303 Kan. 418 (ineffective-assistance legal standard: deficient performance and prejudice)
State v. Carter, 270 Kan. 426 (Cronic-type presumption of prejudice in extreme Sixth Amendment deprivations)
In re Arkell, 304 Kan. 754 (disbarring counsel whose conduct featured in this case)
In re M.F., 290 Kan. 142 (ICWA governs when court knows or has reason to know an Indian child is involved)
In re Rushing, 9 Kan. App. 2d 541 (application of Cronic principles in parental-rights context)