Opinion
112,578.
07-10-2015
In the Interest of J.M.B. Date of Birth: XX/XX/2003, A Child Under the Age of 18 Years.
David W. Chowins, Chowins Law Firm, LLC, of Prairie Village, for appellant natural mother. Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee. Alan Rosenak, of Rosenak Family Law, LLC, of Overland Park, guardian ad litem.
David W. Chowins, Chowins Law Firm, LLC, of Prairie Village, for appellant natural mother.
Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Alan Rosenak, of Rosenak Family Law, LLC, of Overland Park, guardian ad litem.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
G.M. appeals the district court's decision terminating her parental rights to her son, J.M.B. On appeal, she claims that (1) the district court erred in failing to apply the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2012) ; (2) the district court lacked personal jurisdiction over her due to defective service of the motion to terminate her parental rights; (3) the district court erred by denying her request to continue the termination hearing; and (4) the district court erred by proceeding with the termination by proffer. We agree with G.M. on only one claim: there was no evidence before the district court to support its finding that ICWA did not apply. Thus, we remand with directions for the district court to properly determine whether J.M.B. is an Indian child subject to the provisions of ICWA.
Factual and Procedural Background
On January 18, 2013, Kansas' Department of Children and Family Services (DCF) received a nonabuse neglect report concerning J.M.B., a 9–year–old who lived with his mother, G.M. On April 3, 2013, after a drug investigation, G.M. was taken into custody on an outstanding warrant while J.M.B. was at school. Two days later, at approximately 2 a.m., police conducted a welfare check on a man reported sleeping in a vehicle. The man was identified as Chris Henington, and J.M.B. was found asleep in the vehicle's backseat. Police took Henington and J.M.B. back to the apartment where J.M.B. indicated he lived.
Later that day, a DCF social worker went to the apartment with law enforcement and found J.M.B. and a man named Timothy Moore, who said he was preparing to take J.M.B. to school. According to the social worker, J.M.B. said he did not have a bed and that he slept on the floor, that he cried himself to sleep, and that Chris—presumably Henington—was his guardian and had slapped G.M. approximately 3 months earlier. J.M.B. also said he had not eaten since the day before and that everything he was saying was “a secret.” A search of the apartment revealed no food, but there were beer cans in the bathroom, living room, and kitchen, and a dirty dish and a pack of cigarettes on the floor in J.M.B.'s bedroom. At that point, J.M.B. was taken into protective custody.
On April 8, 2013, the social worker spoke with A.M., G.M.'s sister, who reported that she and their mother, D.M., had power of attorney for J.M.B. and had been caring for him for 2 years. A.M. said that J.M.B. was autistic and had services in place in Missouri. She also added that she and D.M. had been unable to locate G.M. since December 2012.
On April 9, 2013, the State filed a petition alleging J.M.B. was a child in need of care (CINC). Specifically, the State alleged that J.M.B. was without adequate parental care, control, or subsistence not due solely to his parents' lack of financial means; he was without the care or control necessary for his physical, mental, or emotional health; he had been physically, mentally, or emotionally abused or neglected or sexually abused; and he was not attending school as statutorily required. The petition also requested emergency out-of-home placement since G.M. was incarcerated and the identity of J.M.B.'s father was unknown. Moreover, the family had been evicted from the apartment.
The district court appointed a guardian ad litem (GAL) to represent J.M.B., and held a temporary custody hearing, at which G.M. was not present. Several of her family members were present, including D.M., G.M.'s mother and J.M.B.'s grandmother. After hearing from the parties and the relatives, the district judge asked D.M. if J.M.B. had any American Indian heritage on his maternal side. D.M. answered affirmatively, stating she was registered with the Sisseton–Wahpeton tribe. At the conclusion of the hearing, the district court ruled that an emergency existed which threatened J.M.B.'s safety and, since G.M. was incarcerated, J.M.B.'s father was unknown, and J.M.B.'s needs were not being met, the district court awarded custody to DCF. The journal entry memorializing this hearing stated that the district court found the applicability of ICWA was undetermined.
On June 11, 2013, G.M. appeared at the scheduled first appearance; she informed the district court that she had never been served with the petition but had learned of the hearing while she was trying to locate J.M.B. The district court had G.M. personally served with the CINC petition in the courtroom. The district court also continued the hearing so that G.M. would have time to meet and consult with her counsel.
The next hearing took place on July 1, 2013. G.M. submitted a no-contest statement to the allegations that J.M.B. was a CINC and, after questioning her, the district court accepted her stipulation. The State proceeded by proffer to pursue a default finding against J.M.B.'s father. The district court ultimately adjudicated J.M.B. a CINC and set in place a 4–month reintegration plan. Although ICWA was not discussed at the hearing, the journal entry memorializing the district court's findings stated, without further explanation, that the district court found ICWA was not applicable.
At an October 2013 review hearing, G.M. seemed to be making progress toward reintegration. The GAL told the district court that G.M. was “highly cooperative, highly engaged in the reintegration process, [and] really trying hard to create a home for [J.M.B.].” G .M. had tested positive for drugs, but her counsel informed the district court she was looking into drug and alcohol treatment programs, which the district court encouraged. The district court extended the reintegration plan for 60 days, ordered G.M. to participate in individual therapy sessions, and issued a no-contact order prohibiting G.M. and J.M.B. from having contact with Henington.
At the next review hearing in January 2014, the GAL told the district court that there were allegations that G.M. was not participating in counseling or drug treatment, she had failed to provide proof of employment, and she was criticizing the state agencies involved in front of J.M.B. The State also expressed concern that long-term change by G.M. was impossible and informed the district court that a motion to revoke G.M.'s probation had been filed in a Wyandotte County criminal case. G.M. argued that she had maintained employment and housing without support from friends or family, that she was trying to comply with the reintegration plan, and that she was overwhelmed. The district court took under advisement an extension of the reintegration plan, told G.M. to keep working on the plan tasks, and set a permanency hearing for April 2014, warning G.M. that she was “at grave risk of losing [her] parental rights.”
On April 22, 2014, the State filed a motion for termination of parental rights or appointment of a permanent custodian. The district court held a hearing the following day, which G.M. did not personally attend. According to the GAL, G.M. had been incarcerated in the Wyandotte County jail since early that month. The district court found that reasonable efforts had been made toward reintegration but that J.M.B.'s needs were not being met, so he would remain in DCF custody. The district court set another hearing for May 1, 2014. At that hearing, at which G.M. was not present but was represented by counsel, the district court set the termination trial for July 24, 2014.
G.M. was not present at the hearing on July 24, 2014. Her counsel informed the judge that the district court's staff had given counsel a request for continuance that G.M. had sent directly to the judge. Clarifying that she had not had any contact with G.M., counsel nevertheless moved for a continuance until October, explaining that G.M. had been released from the Wyandotte County Detention Center on July 9 and had told counsel she was going into treatment and then would “take care of a Jackson County matter.” The State opposed the continuance, citing the duration of the case and the importance of permanency for J.M.B., and arguing that the lack of communication between G.M. and her attorney showed how little G.M. desired to contest the allegations of unfitness. The GAL agreed with the State. The district court denied the request for continuance, then announced it would allow the State to proceed by proffer.
The State recited the procedural history of the case and made factual allegations, detailing the reintegration efforts and G.M.'s failure to complete her reintegration plan, including her drug relapses, eviction, and incarceration. The State noted that J.M.B. wanted to live with extended family members and argued that “it would be in the best interest [of J.M.B.] to terminate parental rights and allow him to seek permanency in—with another family.” The State specifically alleged emotional and physical neglect, a lack of effort by G.M. to adjust her conduct to meet J.M.B.'s needs, a lack of communication and visits, and failure to financially support J.M.B., all of which were unlikely to change in the foreseeable future. The State requested termination of parental rights. The GAL also spoke at length, agreeing with the State that it was in J.M.B.'s best interests to terminate G.M.'s parental rights. G.M.'s counsel did not proffer any evidence.
The district court found that the proffer constituted clear and convincing evidence of both parents' unfitness pursuant to K.S.A.2014 Supp. 38–2269(b)(4) —“physical, mental or emotional abuse or neglect.” The district court also found G.M. unfit pursuant to K.S.A.2014 Supp. 38–2269(b)(7), which is “failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family”; (b)(8), which is “lack of effort on the part of the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child”; (c)(2), which is “failure to maintain regular visitation, contact or communication with the child or with the custodian of the child”; and (c)(3), which is “failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home.” See K.S.A.2014 Supp. 38–2269(b) and (c). The district court found that there was clear and convincing evidence that G.M. was “unlikely to change in the foreseeable future or the immediate future.” Thus, the district court terminated her parental rights. G.M. timely appealed the district court's judgment.
On appeal, G.M. claims that (1) the district court erred in finding that ICWA did not apply; (2) the district court lacked personal jurisdiction over her due to defective service of the motion to terminate her parental rights; (3) the district court erred by denying her request to continue the termination hearing; and (4) the district court erred by proceeding with the termination by proffer. We will take up the ICWA issue last after we address G.M.'s other claims on appeal.
Did the District Court Have Personal Jurisdiction Over G.M.?
G.M. claims the district court lacked personal jurisdiction over her. Specifically, she argues that there is nothing in the record to indicate that the State personally served her with its motion to terminate her parental rights. She also asserts that the district court failed to comply with the statutory requirement that it determine, at the beginning of the hearing on the motion to terminate her parental rights, whether the State used due diligence in affecting service. Finally, she contends that any service by publication was ineffective. The State responds that G.M. was personally served on June 28, 2014, and, in the alternative, that notice by publication was proper.
“The existence of jurisdiction is a question of law subject to unlimited appellate review. [Citation omitted.] Questions involving statutory interpretation are also questions of law subject to unlimited review. [Citation omitted.]” In re N.A.C., 299 Kan. 1100, 1106–07, 329 P.3d 458 (2014).
K.S.A.2014 Supp. 38–2267(b) provides that upon receiving a motion to terminate parental rights, “[t]he court shall give notice of the hearing” to the parties, among other people. Personal service is sufficient to satisfy the requirement. See K.S.A.2014 Supp. 38–2237(a) ; K.S.A.2014 Supp. 38–2267(b)(1)(A). K.S.A.2014 Supp. 38–2267(c) further requires that “[a]t the beginning of the hearing the court shall determine that due diligence has been used in determining the identity and location of the persons listed in subsection (b) and in accomplishing service of process.”
According to the record on appeal, the State filed its motion for termination of parental rights or appointment of a permanent custodian on April 22, 2014. At the time G.M. filed her brief, her statement that the appellate record contained nothing that proved proper service was correct. In fact, the record on appeal shows that the State filed an affidavit in district court on June 30, 2014, stating that G.M.'s whereabouts were unknown and detailing its efforts to locate her. The same day, the district court entered an order allowing notice by publication.
In February 2015, however, the State added two items to the record on appeal, one of which is a return of service showing that a deputy sheriff personally served G.M. on June 28, 2014, with the motion for termination of parental rights. This was timely service under the statutory requirements, as the termination hearing did not occur until July 24, 2014. See K.S.A.2014 Supp. 38–2267(b)(2) (requiring that notice must be given not less than 10 business days before the hearing).
The State's brief points out the addition to the record showing personal service. G.M. has filed no reply brief in response to this issue. Since the record now contains evidence that G.M. was personally served, her claim that the district court lacked jurisdiction fails. Although the better practice is for a district court to comply with the statute and state on the record at the beginning of the hearing that due diligence was used to locate and serve the required people, the failure to do so here was harmless. Because G.M. was personally served with the motion to terminate her parental rights, we will not address the State's arguments regarding service by publication.
Did the District Court Err in Denying G.M.'s Motion for Continuance?
G.M. next claims the district court erred by denying her request to continue the termination hearing. She contends that the district court used the wrong standard, erroneously deciding that there was not “good cause” to grant the continuance rather than determining whether it would be “in the best interest of [J.M.B.]” to grant the continuance. Alternatively, even if the district court used the correct standard, G.M. argues that the district court abused its discretion in denying the continuance since she was seeking medical treatment. The State replies that the district court neither used the wrong standard nor otherwise abused its discretion in denying the request for continuance.
As the parties agree, this court reviews a district court's denial of a motion for continuance in termination of parental rights cases for abuse of discretion. See In re A.A., 38 Kan.App.2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008). “Typically, ‘discretion is abused only when no reasonable person would take the view adopted by the district court.’ [Citation omitted.]” In re J.A.H., 285 Kan. 375, 385, 172 P.3d 1 (2007) (explaining abuse of discretion standard of review for denial of motion for continuance in a termination of parental rights case). Also, a judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
G.M. first argues the district court failed to consider whether the continuance would be in J.M.B.'s best interests. K.S.A.2014 Supp. 38–2267(a) states that a continuance of a hearing on a motion to terminate parental rights “shall be granted only if the court finds it is in the best interests of the child.” G.M. was not present at the termination hearing, but apparently she had sent a letter directly to the judge requesting a continuance. That letter is not included in the record on appeal, so this court is unable to review the letter and any justification for a continuance it may have contained.
G.M.'s counsel requested a continuance at the hearing, informing the district court that G.M. had been released from the Wyandotte County Detention Center earlier that month and had told her she was going into treatment and then would “take care of a Jackson County matter.” The State opposed the continuance, citing the duration of the case and the importance of permanency for J.M.B. and arguing that the lack of communication between G.M. and her attorney showed how little G.M. desired to contest the allegations of unfitness. The GAL agreed with the State, and the district court denied the request for continuance. Specifically, the district judge told G.M.'s counsel:
“I do understand your request for your client pursuant to the letter that was turned over to you, however the request for a continuance is denied. I do not hear a good basis for continuance, and as the guardian ad litem has noted, this case is well over a year, almost a year and a half old.”
G.M. contends that the district court erroneously used a “good cause” standard, rather than considering whether the continuance was in J.M.B.'s best interest. As the State points out, however, the judge simply stated that she heard no “good basis” to grant the continuance. Moreover, the controlling statute simply states that “[a] continuance shall be granted only if the court finds it is in the best interests of the child.” See K.S.A.2014 Supp. 38–2267(a). The statute requires a best interests finding if the district court grants a continuance of the termination hearing. Here, no such continuance was granted. In any event, the district court implicitly found that a continuance of the hearing would not be in J.M.B.'s best interests because of the age of the case and the need for permanency for J.M.B. We reject G.M.'s argument that the district court applied the wrong standard in considering the request for continuance.
G.M. also argues that no reasonable person would have denied the request because she sought the continuance to seek treatment for a medical condition. She compares her drug addiction to a heart problem, arguing that just as no reasonable person would deny a continuance sought so that she could undergo heart surgery, neither would any reasonable person deny a continuance sought so that she could attend inpatient drug rehabilitation. G.M. further points out that she had attended every prior hearing she could and argues that the State did not adequately explain how a continuance would detrimentally affect J.M.B.'s interest in permanency.
Working against G.M. is the fact that the letter she sent to the judge requesting the continuance is not included in the record on appeal. “[A]n appellant has the burden to designate a record affirmatively showing error and, without such a record, an appellate court presumes the action of the district court was proper. [Citations omitted.]” State v. Valladarez, 288 Kan. 671, 686, 206 P.3d 879 (2009).
J.M.B. initially was placed into DCF custody in April 2013. By the time G.M. requested the continuance, it was July 2014; the proceedings had been underway for over a year. As the State and the GAL noted at the termination hearing, continuing the proceedings would have delayed permanency for J.M.B. Kansas courts have long recognized the benefits of permanency for a child. See In re K.R., 43 Kan.App.2d 891, Syl. ¶ 7, 233 P.3d 746 (2010) (recognizing “the benefits of permanency for the children” as a factor to be considered in determining whether to terminate parental rights).
The only explanation for the continuance in the record on appeal was G.M.'s counsel's statement that G.M. had informed her that she was going into treatment and then would “take care of a Jackson County matter.” As the State points out, there is no evidence that G.M. actually was in an inpatient treatment program at the time she requested the continuance or at the time of the termination hearing. On the record now before this court, a reasonable person could agree with the district court's decision to deny G.M.'s request for continuance of the termination hearing. Thus, we conclude the district court did not abuse its discretion in denying the continuance.
Did the District Court Err by Allowing the State to Proceed by Proffer?
Next, G.M. argues that the district court erred by allowing the State to proceed by proffer at the termination hearing. G.M. concedes that she was not present at the hearing and had not specifically instructed her counsel to object to proceeding by proffer. She nevertheless argues that her actions—namely her request to continue the hearing—sufficiently demonstrated her desire to resist the termination of her parental rights and her lack of intent to concede to the allegations that she was an unfit mother. The State replies that this court should not address G.M.'s argument because she did not object in the district court to proceeding by proffer.
Resolution of G.M.'s claim involves statutory interpretation. Interpretation of a statute is a question of law over which appellate courts have unlimited review. In re N.A.C., 299 Kan. at 1106–07. “The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] An appellate court's first attempt to ascertain legislative intent is through an analysis of the language employed, giving ordinary words their ordinary meaning. [Citation omitted.]” Cheney v. Poore, 301 Kan. 120, 125, 339 P.3d 1220 (2014).
K.S.A.2014 Supp. 38–2248(f) provides: “In evidentiary hearings for termination of parental rights under this code, the case may proceed by proffer as to parties not present, unless they appear by counsel and have instructed counsel to object.” The plain language of the applicable statute allowed the State to proceed by proffer at the termination hearing. G.M. was not present at the hearing after she had been personally served with notice, and she had not specifically instructed her counsel to object to proceeding by proffer. G.M. contends that her request for a continuance of the termination hearing illustrated that she was not conceding to the State's allegations that she was unfit and that she was continuing to resist the termination of her parental rights. However, we disagree with G.M.'s assertion that her request for a continuance can reasonably be construed as an objection to the State to proceed by proffer at the hearing.
G.M. briefly argues that her due process rights were violated by allowing the State to proceed by proffer. Her brief contains the following statement:
“Parenting is a fundamental right. The provision in the Code regarding proceeding by proffer unless instructing an attorney to object only complies with due process requirements if the parent in question has simply abandoned his or her efforts to put on a defense. That is clearly not the case here.”
G.M. fails to fully develop her due process argument, and she fails to support her claim with any legal authority. A point raised incidentally in a brief and not argued therein is also deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Moreover, failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority is akin to failing to brief it. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Thus, we decline to address G.M.'s due process argument, and we conclude the district court did not err by allowing the State to proceed by proffer at the termination hearing.
Did the District Court Err in Finding that ICWA Did Not Apply?
At the initial hearing in the CINC case, J.M.B.'s maternal grandmother informed the district court that she was a registered member of the Sisseton–Wahpeton tribe, which should have triggered an investigation into ICWA's applicability. The record shows no further mention of, discussion about, or investigation into whether J.M.B. was an Indian child. Nevertheless, the journal entry memorializing the adjudication hearing declared, without further explanation, that the district court found ICWA did not apply. On appeal, G.M. argues there was no evidence to support the district court's finding that ICWA did not apply. She contends that this error resulted in the district court using the lower “clear and convincing” standard of proof rather than the standard ICWA requires, which is “evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” See 25 U.S.C. § 1912(f) (2012).
In response, the State argues that we should not consider this issue because G.M. failed to object in district court to the finding that ICWA did not apply. The State also contends that when a case proceeds by proffer, the standard of proof is irrelevant. Finally, the State argues that even if there was no evidence to support the district court's finding that ICWA did not apply, the remedy is for this court to remand for a hearing to determine if J.M.B. is an Indian child as defined by ICWA.
We will first address the State's argument that this court should not consider this issue because G.M. failed to object in district court to the finding that ICWA did not apply. The State argues that G.M.'s failure to object deprived the State of “a chance to correct any deficiency in the record on whether ICWA applied to J.M.B.”
Generally, issues not raised before the district court cannot be raised on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). However, there are exceptions to this general rule; one of those exceptions occurs when consideration is necessary to serve the ends of justice or to prevent denial of fundamental rights. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 778 (2009). As our Supreme Court has recognized, the right to parent one's child is a fundamental constitutional right. See In re N.A.C., 299 Kan. at 1123 (Johnson, J. dissenting). Because the application of ICWA changes the standard of proof required to terminate parental rights, the failure to apply ICWA where it should have been applied results in the improper denial of a fundamental right.
The State concedes that this court previously has considered ICWA claims for the first time on appeal. In In re S.M.H., 33 Kan.App.2d 424, 429–30, 103 P.3d 976, rev. denied 279 Kan. 1006 (2005), this court considered an ICWA claim not properly preserved in district court even though the appellant not only failed to object to alleged noncompliance with ICWA, but actively invited the error by arguing before both a magistrate and district judge that the Kansas statutes controlled.
Our Supreme Court has recognized that the application of ICWA changes the nature of child welfare proceedings in Kansas, explicitly stating that ICWA controls “when the court knows or has reason to know that an Indian child is involved in the proceeding.” See In re M.F., 290 Kan. 142, 148–49, 225 P.3d 1177 (2010). Because the failure to apply ICWA where it should have been applied could result in the improper denial of a fundamental right, we will consider G.M.'s claim for the first time on appeal.
Determining whether ICWA applies requires statutory interpretation, which makes it a question of law over which this court exercises unlimited review. In re A.J.S., 288 Kan. 429, 431, 204 P.3d 543 (2009). To the extent that the application of ICWA is dependent upon findings of fact, however, this court reviews for substantial competent evidence to support the finding. See Gannon v. State, 298 Kan. 1107, 1175–76, 319 P.3d 1196 (2014) (stating general standard of review for mixed question of fact and law).
“In Kansas, proceedings concerning any child who may be a child in need of care are governed by the Revised Kansas Code for Care of Children, K.S.A. [2014] 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 [ICWA] applies.’ K.S.A. [2014] Supp. 38–2203(a).” In re M.F., 290 Kan. at 148–49.
ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is 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) (2012). The information contained in the record on appeal about whether J.M.B. met these requirements is sparse, to say the least. At the initial hearing, on April 9, 2013, after the district court placed J.M.B. in DCF custody, the judge asked D.M., J.M.B.'s maternal grandmother, “[O]n mother's side of the family, is there any American Indian heritage?” D.M. replied that there was, identified her tribe as Sisseton–Wahpeton, and informed the district court that she was registered. The journal entry memorializing that hearing stated: “The Court finds that the Indian Child Welfare Act (ICWA) ... applicability is undetermined.” The portion of the form journal entry in which the district court could have directed the State to send notice to the tribe was left blank.
The Bureau of Indian Affairs (BIA) Guidelines instruct that “[i]f 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.” See BIA Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (BIA Guidelines), 80 Fed.Reg. 37, Section A.3(d) (February 25, 2015). As soon as D.M. informed the district court that she was a registered member of the Sisseton–Wahpeton tribe, the district court should have followed the requirements of ICWA until it could determine whether ICWA applied.
Instead, as G.M. emphasizes on appeal, the record contains no additional mention of ICWA, Indian child status, or anything to do with J.M.B.'s Indian heritage until the July 18, 2013, “Journal Entry and Orders of Adjudication[/]Disposition,” a form journal entry which adjudicated J.M.B. a CINC. This journal entry contained without further explanation the statement: “The Court finds that the Indian Child Welfare Act (ICWA) is not applicable.” Additionally, in a communication dated February 12, 2015, and added to the record on appeal after G.M. filed her appellate brief, the tribal enrollment clerk to the Sisseton–Wahpeton Sioux Tribe stated: “Attached is a certificate of blood degree for [maternal grandmother]. She is only 9/64. Her daughter [G.M.] would only be 9/128, which isn't enough to be enrolled. The child in question, [J .M.B.] would not be enough to be enrolled here at the Sisseton–Wahpeton Sioux Tribe.”
As G.M. points out, the district court cited no evidence to support the finding in the CINC adjudication journal entry that ICWA did not apply. The only evidence before the district court at the time of the CINC journal entry was D.M.'s statement that J.M.B. had Indian heritage. Under the BIA Guidelines, if there is any reason to believe the child is an Indian child, the agency and the state court must treat the child as an Indian child, unless and until it is properly determined that the child is not a member or eligible for membership in an Indian tribe. BIA Guidelines, Section A.3(d). Under this authority, the district court erred by finding in the CINC adjudication order that ICWA did not apply without basing the finding on proper evidence.
The State points out in its brief that after G.M. filed her brief, the State “made contact with” the Sisseton–Wahpeton Sioux and received the February 12, 2015, letter quoted above that detailed the blood degree of D.M., G.M., and and stated that G.M.'s and J.M.B.'s blood degrees were not “enough to be enrolled” in the tribe. The State's brief characterizes this letter as “stating that J.M.B. is not a member and is not eligible to become a member of the Tribe.”
There are problems with the State's characterization of the letter from the tribe. First, “enrollment” in a tribe does not always equate with “membership”—the term ICWA uses. The BIA Guidelines expressly state: “A tribe need not formally enroll its members for a child to be a member or eligible for membership. In some tribes, formal enrollment is not required for tribal membership.... The only relevant factor is whether the tribe verifies that the child is a member or eligible for membership.” BIA Guidelines, Section B.3. (c)(2). Thus, it is inappropriate for this court to make assumptions about whether the tribe meant that J.M.B. and G.M. were not eligible for membership in the tribe when the letter stated that their blood degrees were not “enough to be enrolled.”
Second, the record on appeal does not contain the information the tribe used in suggesting that neither G.M. nor J.M.B. would be eligible for enrollment or membership in the tribe. The letter from the tribe implies the determination was made simply by extrapolating from information on maternal grandmother's lineage alone, which would be insufficient to conclusively resolve the issue of J.M.B.'s eligibility for membership in the tribe. The information supplied in the letter does not take into account the possibility that J.M.B. would have Indian ancestry from some other source.
Third, although the record on appeal now contains the February 12, 2015, letter from the tribe, there is no indication in the record as to how this letter was provided or how the tribe received notice of J.M.B.'s case. ICWA provides as follows:
“In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” 25 U.S.C. § 1912(a).
The State asserts in its brief that it sent notice to the Sisseton–Wahpeton tribe on May 1, 2013, but admits it did so by “regular mail service,” not registered mail as required by ICWA. But the State's concession that it did not comply with the registered mailing requirements is not the only problem. There is nothing in the record on appeal to indicate that the State sent notice to the tribe at all; neither the notice nor any return receipts is included in the record on appeal. Thus, going strictly by the record on appeal, there is no evidence that the State ever notified the tribe of J.M.B.'s case as ICWA requires. For these reasons, we decline the State's invitation to find, based on the letter added to the record on appeal after G.M. filed her brief, that J.M.B. is not an Indian child.
Next, the State claims that any error in using the wrong standard of proof is “irrelevant” in J.M.B.'s case because the termination was based upon a proffer; thus, it does not matter whether ICWA applied. As we previously stated, the termination of parental rights under ICWA must be based upon “a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” See 25 U.S.C. § 1912(f). Here, the district court terminated G.M.'s parental rights based on “clear and convincing” evidence that she was unfit. See K.S.A.2014 Supp. 38–2269(a).
The State cites no direct authority to support its argument that the standard of proof is irrelevant when a termination hearing proceeds by proffer. As we previously stated, a point raised incidentally in a brief and not argued therein is deemed abandoned. Friedman, 296 Kan. at 645. Moreover, failure to support a point with pertinent authority is akin to failing to brief the issue. Tague, 296 Kan. at 1001.
Even if this issue was properly briefed, we find no merit in the State's assertion that the standard of proof is irrelevant when a termination hearing proceeds by proffer. Proceeding by proffer does not negate the State's burden to meet the applicable standard of proof or the district court's responsibility to determine whether the proffered evidence meets that standard of proof. Cf. In re J.F., No. 110,809, 2014 WL 3024367, *4 (Kan.App.2014) (unpublished opinion) (concluding, after analysis, “that the substance of the proffer constitutes clear and convincing evidence that Father is unfit”).
Having determined that the district court erred in finding that ICWA did not apply, we now turn to the proper remedy. The State argues that even if the district court erred in finding that ICWA did not apply, the proper remedy is to remand for a hearing to determine if J.M.B. is a member or eligible to be a member of the Sisseton–Wahpeton tribe. We agree with the State's proposed remedy.
Under ICWA, if J.M.B. is not a member of a tribe and is not eligible to become a member, he is not an Indian child. See 25 U.S.C.A. § 1903(4). The State has provided some evidence on appeal that may establish that J.M.B. is not an Indian child, but this evidence was never presented to the district court. Under the circumstances presented here, the proper course of action is for the district court to conduct a hearing to determine if the tribe was properly notified of the proceedings and to decide, based upon the tribe's response, whether J.M.B. is an Indian child subject to the provisions of ICWA. If the district court finds based on proper evidence that J.M.B. is not an Indian child, then the termination of G.M.'s parental rights need not be set aside. In that instance, the district court can file a journal entry finding that ICWA does not apply and reaffirm its prior decision terminating G.M.'s parental rights. But if the district court finds that J.M.B. is an Indian child, then the district court is directed to set aside the termination of G.M.'s parental rights and all further proceedings shall be governed by the provisions of ICWA.
Affirmed in part and remanded with directions.