Kansas Court of Appeals

Sometimes I’m just left sputtering:

Initially, Dan Arkell-Roca represented Mother. According to the proffered testimony at the district court’s hearing on this matter, Arkell-Roca obtained Mother’s signature on her no-contest statement to the State’s child in need of care petition by folding over the paper in such a way that she could only see the signature line. She was not able to view the rest of the document. Arkell-Roca told Mother that she needed to sign the document if she wanted to get her child back and she did not need to worry about what it said. She signed the statement without reading it and not knowing what it said. Arkell-Roca also advised Mother that she should not pursue the issue of whether there was native parentage of her son because the tribe would come and “take her child away.”

***

The Kansas Supreme Court disbarred Arkell-Roca from the practice of law in Kansas on July 7, 2016. See In re Arkell, 304 Kan. 754, 377 P.3d 414 (2016).

After sending notice to Cherokee Nation and then receiving the request for more information letter back, the state did nothing to find the information requested by the Nation–the grandmother’s birthdate and maiden name despite this:

Here, there is no indication the State knew the grandmother’s birthdate and maiden name, even though the child lived with grandmother after she was approved for placement. The State admits in its brief that it took no action to obtain the information 22 after receiving the Cherokee Nation letter. Thus, we cannot reasonably say that the information was unavailable here. In our view, the letter from the Cherokee Nation can be treated as a request for more information. There were eight question marks in place of the grandmother’s date of birth, indicating this information was needed.

Ultimately,

Finally, unique to this case, we must point out that even if we do not require the State to provide additional information to the tribe, Mother has a strong argument for remand because her attorney, since disbarred, advised her not to pursue a notice to the Nation under the Act.

Yes. Yes, she does.

Kansas Appellate Court Orders Resentencing of Kickapoo Tribal Member

July 5, 2017July 5, 2017Matthew L.M. Fletcher

Here is the opinion in State v. Horselooking:

State v Horselooking

An excerpt:

Alvin P. Horselooking, Jr., appeals his sentence following his convictions of aggravated battery and driving under the influence of alcohol (DUI). The district court assigned Horselooking a criminal history score of B based in part on his Kickapoo Nation tribal conviction of residential burglary, which the district court scored as a person felony for criminal history purposes. However, the Kickapoo Nation Tribal Code does not designate burglary as being either a felony or a misdemeanor offense. As his sole issue on appeal, Horselooking claims the district court erred when it scored his prior Kickapoo tribal conviction as a felony for criminal history purposes. Because we agree with Horselooking’s claim, we vacate his sentence and remand for the district court to resentence Horselooking using the correct criminal history score.

ICWA Qualified Expert Witness Case out of Kansas Court of Appeals

June 23, 2017June 23, 2017Kate Fort1 Comment

Here. This case has a lot of problems, but the biggest one is the lack of a qualified expert witness at the adjudication phase. The court describes child welfare proceedings as falling into two phases:

Proceedings that end in termination of parental rights in Kansas have two major phases. First, there’s an adjudication, after stipulations or an evidentiary hearing, that the child is in need of care. Second, if termination of parental rights is ultimately sought, there’s a termination order, also after stipulations or an evidentiary hearing. Because no expert testimony was presented in this case at the adjudication hearing, Mother and Father claim that the district court should have dismissed the action at that time.

While all the parties agreed that the adjudication hearing was a 1912 hearing that required QEW testimony, the court still found the lack of QEW testimony at the foster care placement hearing (1912) to be harmless error (that sound you just heard is ICWA attorneys across the country screaming in frustration).

This is pretty troubling, as under federal law, the QEW testimony has to happen at two stages in an ICWA proceeding–a foster care proceeding, and a termination of parental rights. Forcing the State to get QEW testimony is one of the parent’s main rights under the Act, and the legislative history makes pretty clear the QEW testimony is one of the primary ways Congress sought to counter bias in state court proceedings. In addition, as the Kansas court of appeals points out:

So the M.F. [Kansas Supreme] court stated in passing that “it is difficult to conclude a procedural violation of [the Indian Child Welfare Act] can be harmless.” M.F., 290 Kan. at 157 (citing 25 U.S.C. § 1914).

Right. In that case, In re M.F., the Kansas Supreme Court specifically held that a lack of QEW testimony is not harmless error. The Kansas court of appeals cites to a number of pre-In re M.F. decisions, plus the fact there was QEW testimony as the termination of parental rights hearing, to find that it can apply a harmless error standard here.

Unpublished ICWA Case from Kansas Court of Appeals

April 25, 2017Kate Fort

There’s a lot of discussion about what the standards for removal are in an ICWA case at the first (emergency/24/48/72 hour/prelim/shelter care) hearing after a child is removed. This is the question of the Oglala Sioux v. Van Hunnik federal case. The federal regulations state that the standard is the one found in 25 U.S.C. 1922–whether the emergency placement is no longer necessary to prevent imminent physical damage or harm to the child. 81 Fed. Reg. at 38872.

The Kansas Court of Appeals agrees (In re D.E.J.):

The ICWA is clear that there are two ways to remove Indian children from their homes. The first method allows removal if two factors are satisfied: (1) the State proves that it engaged in active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and the efforts were unsuccessful; and (2) the court makes a determination supported by clear and convincing evidence, including the testimony of a qualified expert witness, 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. 25 U.S.C. § 1912. Here, the State did not prove active efforts. And the magistrate judge did not use the expert witness’ testimony to support her determination that the children were in need of care. Thus, removal was inappropriate under 25 U.S.C. § 1912.

The second method of removal under the ICWA is emergency removal. Removal is appropriate under this method if the State proves that it is necessary to prevent imminent physical damage or harm to the child. 25 U.S.C. § 1922. While the district court made a finding that the children faced imminent harm at the initial removal, the district court did not find that the children faced imminent harm months later at the adjudication hearing. And the State did not present evidence that the children faced imminent danger at the time of the adjudication hearing. So, removal could not be legally effectuated under 25 U.S.C. § 1922.

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The ICWA is very clear in requiring a finding of imminent physical harm or danger before allowing emergency removal. The ICWA is also clear that the traditional method of removal requires the State to engage in active efforts. The magistrate judge did not find that the State engaged in active efforts or that the children faced imminent physical harm, so she did not make sufficient findings under the ICWA to support continued removal.

(Emphasis in original)