In re L.M.B.
116155
| Kan. Ct. App. | Jun 16, 2017Background
- Three minor children, members of the Citizen Potawatomi Nation, were removed in Nov. 2014 after reports parents used/injected methamphetamine in the home and Father allegedly sexually assaulted a visitor; drug paraphernalia found.
- Children were placed with maternal relatives; L.M.B. had performed primary caretaking duties before removal and later reported depression and self-harm.
- State required parents to complete a case plan (drug/mental-health evaluations, parenting classes, stable housing, etc.); parents were largely noncompliant for roughly a year, had intermittent incarcerations, inconsistent contact, and positive drug tests.
- In May 2016 the district court terminated both parents’ rights; the State relied on qualified-expert testimony under the Indian Child Welfare Act (ICWA) and findings that continuation in custody would likely cause serious emotional or physical harm.
- Parents appealed, challenging (1) sufficiency of evidence under ICWA (beyond a reasonable doubt), (2) qualification of the State’s expert under ICWA, (3) adequacy of the State’s “active efforts,” and (4) whether lack of expert testimony at the adjudication stage required dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency (ICWA §1912(f)): whether evidence proved, beyond a reasonable doubt, that continued custody would likely cause serious harm | Parents: recent remedial efforts and improvements made the termination unsupported | State: historical neglect, abuse, drug use, children’s mental health, and parents’ dishonesty made future harm likely | Court: Viewing evidence in State's favor, a rational factfinder could find beyond a reasonable doubt that continued custody would likely cause serious emotional or physical harm; termination affirmed |
| Qualification of expert under ICWA (who counts as a “qualified expert witness”) | Father: Dr. Anderson lacked direct child/family services experience and thus was not qualified | State: BIA guidelines presume tribal members with cultural expertise qualified; Dr. Anderson is a tribal member with a PhD in Native American history who studies/teaches ICWA | Court: Under 2015 BIA guidelines Dr. Anderson fit subsection (1) (tribal member recognized for knowledge of customs); district court did not abuse discretion in qualifying him |
| Active efforts (ICWA §1912(d)): whether State used heightened, culturally appropriate efforts to prevent breakup of Indian family | Parents: St. Francis only prepared a plan and failed to actively assist parents to complete it | State: Agency involved tribe, placed children with maternal relatives, provided referrals, therapy, visitation attempts, and culturally appropriate placements | Court: Considering all evidence in light most favorable to State, a rational factfinder could conclude by clear and convincing evidence the State used active efforts |
| Adjudication-stage ICWA error (no expert at adjudication): whether lack of qualified expert at adjudication required dismissal or reversal | Parents: Failure to present ICWA expert at adjudication invalidated subsequent proceedings | State: Error was harmless because qualified expert testimony was presented at termination, and termination standard (beyond a reasonable doubt) was satisfied | Court: Harmless-error analysis applies; because qualified expert testified at termination and evidence supported the outcome, the adjudication error was harmless |
Key Cases Cited
- In re A.P., 25 Kan. App. 2d 268 (Kan. Ct. App. 1997) (discussing ICWA standards in Kansas termination proceedings)
- In re M.F., 290 Kan. 142 (Kan. 2010) (analyzing ICWA expert-witness requirements and BIA guidelines)
- In re B.D.-Y., 286 Kan. 686 (Kan. 2008) (clarifying standard of review for clear-and-convincing findings)
- State v. Ward, 292 Kan. 541 (Kan. 2011) (harmless-error standard discussion)
- In re M.B., 39 Kan. App. 2d 31 (Kan. Ct. App. 2008) (post-adjudication remedial actions can cure earlier ICWA defects)