Guidance has been provided, however, by the Department of the Interior, Bureau of Indian Affairs, through guidelines published to assist state courts in applying the ICWA. Department of the Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (1979) (BIA Guidelines). Courts have routinely consulted these guidelines to discern the intent behind the "qualified expert witnesses" requirement in 25 U.S.C. § 1912. See, e.g., Marcia V. v. State, 201 P.3d 496, 504 (Alaska2009); Rachelle S. v. Dept. of Economic Sec., 191 Ariz. 518, 520, 958 P.2d 459 (Ariz. App. 1998); In re S.M.H., 33 Kan. App. 2d 424, 433-34, 103 P.3d 976, rev. denied 279 Kan. 1006 (2005); see also In re HD., 11 Kan. App. 2d 531, 535, 729 P.2d 1234 (1986) (referring to other portions of BIA Guidelines). This court has never considered this issue, but we join these other courts and consider the legislative history of the ICWA and the BIA Guidelines, 44 Fed. Reg. 67,584. As related to the "qualified expert witnesses" requirement, the BIA Guidelines state:

This issue was properly [41 Kan.App.2d 932] preserved for appeal, and in any event, this issue can be raised for the first time on appeal because 25 U.S.C. § 1914 states that " any parent ... may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of [25 U.S.C. § § 1911, 1912, and 1913]." See In re S.M.H., 33 Kan.App.2d 424, 430, 103 P.3d 976, rev. denied 279 Kan. 1006 (2005).           The ICWA establishes both jurisdictional and substantive procedures for custody determinations of Indian children.

The comments section of the form alerted the State that "[o]nce a court is faced with evidence that the child is an Indian child, the court is bound to apply ICWA and to comply with its requirements. In re S.M.H ., 33 Kan. App. 2d 424, 103 P.3d 976 (2005)."

Once again, though, Kansas courts have looked to the Bureau of Indian Affairs guidelines for direction, and the guidelines provide a wealth of instruction on what constitutes active efforts. M.F. , 290 Kan. at 152, 225 P.3d 1177 ; In re S.M.H. , 33 Kan.App.2d 424, 433, 103 P.3d 976 (2005). First, the guidelines state that "active efforts" means something more than the "reasonable efforts" standard that may apply in non- Indian-child termination proceedings.

Cases exist from other jurisdictions wherein § 1914 has been used to attempt to invalidate orders entered by a court which did not use the appropriate burden of proof or make the requisite findings under 25 U.S.C. § 1912(d) and (e). In a recent case, In re S.M.H., 33 Kan. App. 2d 424, 103 P.3d 976 (2005), the Court of Appeals of Kansas reversed an adjudication order for failure to apply the standards of proof set forth in the ICWA. In that case, the mother appealed from an adjudication order in which the trial court found that her children were in need of care and that she was unable to provide adequate care and control necessary for the children's physical, mental, or emotional health.

We are in agreement with numerous other jurisdictions that 25 U.S.C. § 1914 “specifically confers standing on a parent to petition a court to invalidate a termination proceeding upon showing that notice requirements have not been satisfied.” In the Interest of W.D.H., 43 S.W.3d 30, 38 (Tex.App.2001); see also In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986); In re S.M.H., 33 Kan.App.2d 424, 103 P.3d 976, 981–82 (2005). ¶ 23 Mother concedes that “[w]hen the proceedings first began, the State filed notice in compliance with the Act,” but argues that the State did not provide sufficient notice of the termination proceedings.

In re N.E.G.P., 626 N.W.2d 921, 924 (Mich. Ct. App. 2001).In re S.M.H., 103 P.3d 976, 981 (Kan. Ct. App. 2005). 41 Am. Jur. 2d Indians; Native Americans § 119, at 667 (2005) (citing S.N.R., 617 N.W.2d 77; In re Dependency of A.L.W., 32 P.3d 297 (Wash. Ct. App. 2001)).

We must first address a procedural matter. The State correctly asserts that Mother failed to raise this issue in the district court. Generally, issues not raised before the trial court cannot be raised on appeal. Wolfe Electric, Inc. v. Duckworth , 293 Kan. 375, 403, 266 P.3d 516 (2011) ; In re S.M.H. , 33 Kan. App. 2d 424, 429, 103 P.3d 976 (2005). But we choose to reach the merits of Mother's argument based on an exception to the general rule prohibiting unpreserved issues on appeal.

• then the evidence must establish beyond a reasonable doubt that termination is required. In re S.M.H., 33 Kan. App. 2d 424, 431, 103 P.3d 976, rev. denied279 Kan. 1006 (2005).If the evidence suggests the court is dealing with an Indian child, as with the grandmother's affidavit here, the court must consider the child to be an Indian child until the tribe advises otherwise.

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.”