In re M.G.

1

NOT DESIGNATED FOR PUBLICATION

No. 115,007

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of M.G.


MEMORANDUM OPINION

Appeal from Johnson District Court; KATHLEEN SLOAN, judge. Opinion filed August 5, 2016.
Affirmed in part and remanded with directions.

Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, for appellant natural father.

Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.

Before MALONE, C.J., HILL and ATCHESON, JJ.

Per Curiam: C.G. (Father) appeals the district court's order terminating his
parental rights to his son, M.G. On appeal, Father claims that (1) the State's failure to
comply with the strict notice requirements of the Indian Child Welfare Act (ICWA), 25
U.S.C. § 1901 et seq. (2012), deprived the court of jurisdiction to terminate his parental
rights; (2) the State deprived him of his statutory and constitutional rights to due process
by failing to give adequate notice of the grounds for terminating his parental rights; and
(3) the district court erred by denying his motion to reopen evidence. We find no
reversible error on Father's last two claims, but we agree the record fails to show that the
district court complied with the ICWA notice requirements. Thus, we remand with
directions for the district court to properly determine whether M.G. is an Indian child
subject to the provisions of ICWA, but we otherwise affirm the district court's judgment
terminating Father's parental rights.
2

FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 2013, in the emergency room at Shawnee Mission Medical Center,
B.B. (Mother) and Father informed police that during an argument, Mother had stabbed
Father in the shoulder and he had punched her in the eye. M.G. was just over 15 months
old at the time and had been present during the altercation. Although the State charged
Mother with aggravated battery, Father later refused to testify against her.

As a result of these events, on July 8, 2013, the State filed a petition to adjudicate
M.G. a child in need of care (CINC), alleging that M.G. was without adequate parental
care, control or subsistence, a condition not due solely to lack of financial means; without
the care or control necessary for his physical, mental, or emotional health; and he had
been physically, mentally, or emotionally abused or neglected or sexually abused. The
petition stated that it was unknown whether ICWA applied to the proceedings.

On November 26, 2013, the district court held a hearing, at which Mother and
Father appeared in person and with counsel. At the hearing, the district court approved a
6-month informal supervision plan that required Mother and Father to maintain stable,
adequate, clean, and orderly housing; notify KVC—a child welfare agency that works
with Kansas' Department of Children and Family Services (DCF) on reintegration
programs—of any changes in residence or employment; work with KVC on creating and
enforcing structure at home; and provide appropriate supervision for M.G. at all times.
Under the plan, Mother and Father also had to meet M.G.'s medical, dental, and vision
needs; maintain stable income or seek adequate financial assistance; participate in mental
health services and follow treatment recommendations; utilize KVC in-home services;
submit to random UAs; follow court orders; learn and use appropriate parenting skills;
provide documentation to KVC of their cooperation with the plan; discuss any problems
complying with the plan; and sign all releases necessary to verify completion of plan
tasks. Family Preservation Services, a program for families trying to overcome and
3

address concerns and issues while keeping children at home, agreed to help Mother and
Father accomplish their tasks under the informal supervision plan.

At the initial stage of the informal supervision plan, Mother, Father, and M.G.
were residing with Be.B. (Maternal Grandmother). In May 2014, Mother and Maternal
Grandmother had an argument, possibly involving physical violence, which led the State
to place M.G. in the temporary custody of DCF. At a hearing on May 19, 2014, the
district court found that although KVC had made reasonable efforts to maintain the
family and prevent M.G.'s removal from the home, those efforts had been unsuccessful
and the family was homeless, with no appropriate home for M.G.

On June 2, 2014, the district court entered orders of adjudication and disposition in
the CINC case. According to the journal entry, the district court found that ICWA was
not applicable. The record on appeal does not contain a transcript of the June 2, 2014,
hearing, so this court does not know how the district court reached its conclusion that
ICWA was inapplicable. Mother and Father submitted no contest statements to the
allegations in the petition and the district court adjudicated M.G. a CINC pursuant to
K.S.A. 2015 Supp. 38-2202(d)(2). The dispositional goal was reintegration, and the
district court set a 6-month reintegration plan but ordered M.G. to remain in DCF
custody.

As part of the reintegration plan, DCF used Maternal Grandmother's house for
supervised visitation because Mother and Father did not have stable housing of their own.
In December 2014, a surprise visit to Maternal Grandmother's home found that the house
was cluttered, with items blocking pathways through the home and cleaning supplies and
prescription drugs out where they were accessible to a child. Erin Gutierrez, a KVC case
manager who worked with the family, spoke to Mother and Father about her concerns,
and she later testified that they seemed receptive to the feedback.

4

On January 20, 2015, the State filed a motion for a finding of unfitness and
termination of both parents' parental rights. The State alleged unfitness "for one or more"
of the statutory reasons listed in the motion, without identifying a specific legal basis.
The motion laid out a history of the case, noting that M.G. was adjudicated a CINC in
June 2014. The State alleged that since then, Father had failed to maintain safe and stable
housing; Maternal Grandmother's home, where Mother and Father lived, was "in poor
condition"; KVC workers had learned in December 2014 that Father had been charged in
Texas with indecent liberties with a minor; and M.G.'s case had been pending for 18
months, with him in out-of-home placement for 7 months. The motion concluded: "After
completing almost a year of Family Preservation services, [Father] and [Mother] have
made little progress toward improving their circumstances and their situation has
remained unchanged. [M.G.] deserves permanency and it is in his best interest to
terminate parental rights or create a permanent custodianship."

At a hearing on April 6, 2015, Father asked for a continuance, which the State did
not oppose and the district court granted. When the district court ordered the parents to
submit to drug testing that day, both parents admitted they had taken prescription drugs
for which they did not have prescriptions. A few minutes later, however, court
reconvened because Father had tested positive for methamphetamine. Father admitted
that he had lied to the judge. Maternal Grandmother asked the district court to consider
her as a placement, but when asked if she would pass a drug test, Maternal Grandmother
admitted that she too had used methamphetamine the past weekend.

On April 23, 2015, Father again tested positive for methamphetamine and
amphetamines. Gutierrez later testified that Father also showed "concerning behaviors" at
a visitation on that day: "his eyes were rolling in the back of his head[, h]e was dozing
off, falling asleep, [and he] was not very interactive." After that, Mother and Father were
required to submit a negative drug test 1 hour prior to any visitation; this requirement
upset them and they stopped showing up for visitations. Their final visitation with M.G.
5

was on April 23, 2015; after that date, neither Mother nor Father submitted to drug
testing or contacted Gutierrez again until after the start of the termination hearing.

The termination hearing began on July 15, 2015. Father was not present in person,
but was represented by counsel, who asked the district court for a continuance because
Father had indicated he would be present but had not yet arrived. The district court
denied the request for continuance. Father's attorney then informed the district court that
there appeared to be "an ICWA issue." The State's attorney responded: "Judge, I've
served so many tribes, and we've not received any notification from any tribe that ICWA
applies. . . . There's so many responses from tribes in this case. I just am concerned that
this is just a delay tactic from a father that's not here." The district court, without
elaborating, ruled that ICWA did not apply.

Prior to hearing testimony, the district court took judicial notice of the files in the
CINC case. The State called Gutierrez as a witness. She testified about the requirements
of the initial 6-month reintegration plan, then moved on to whether Father had complied
with those requirements. Gutierrez testified that although the plan required Father to
obtain and maintain a suitable home environment, Gutierrez did not receive proof that he
had done so until after the reintegration plan had ended. At the time of the trial, Gutierrez
had no idea where Father was living. Similarly, although Father had completed a required
parenting class, he had not done so until after the reintegration plan had ended. Although
Mother and Father had provided her with a transportation plan that required Maternal
Grandmother to provide transportation, Gutierrez no longer felt that plan was viable.

Gutierrez further testified that Father had provided proof of employment during
the reintegration plan, but she no longer believed that he was employed and she had not
received proof of employment since February 2015. In addition, Gutierrez was concerned
because Father had been in police custody recently. Gutierrez testified that once, after a
6

visit with Mother and Father that was supervised by Maternal Grandmother, M.G.
returned to his foster placement dirty and upset.

Despite the requirement that Mother and Father submit budgets as part of the
reintegration plan, the last budget Gutierrez had received was in February 2015, so she
had no knowledge at the trial of their current household expenses and income. The
reintegration plan also required drug testing, and although both parents were compliant
with the tests in the beginning of the reintegration period, they largely stopped submitting
to requested drug tests after the April 6, 2015, hearing, when both parents and Maternal
Grandmother tested positive for methamphetamine and Father also tested positive for
amphetamines. Gutierrez' final contact with Father was on April 23, 2015.

Gutierrez expressed concern about the parents possibly sharing prescription
medication during the pendency of the case. Mother and Father had admitted to Gutierrez
that they sometimes shared medication when they were prescribed the same substance.
Father had given Gutierrez a medication update over 8 months earlier, but she had not
received any additional information since the first update. Father also had not complied
with recommendations for mental health treatment as required by the reintegration plan;
it appeared that Father had not attended any recommended treatment sessions since
August 4, 2014, nor had he completed a requested drug and alcohol assessment.

Overall, Gutierrez testified that the parents had failed their reintegration plan
because of drug use, loss of their home, and lack of progress toward reintegration since
April 6, 2015. Gutierrez testified that at the time of trial, M.G. was 3 years old and was
doing quite well in his foster home placement. In addition, adoptive resources were
available. Gutierrez believed that Father was not fit to parent M.G. because although he
initially had shown significant progress, he had taken "many steps backwards and [is] not
able to keep [M.G.] safe" because of his drug use, lack of housing, and ongoing domestic
violence issues, circumstances which Gutierrez did not believe were likely to change in
7

the foreseeable future. Gutierrez believed it was in M.G.'s best interest to terminate
Father's parental rights and allow M.G. to be adopted.

After Gutierrez' testimony, the district court took judicial notice of an eviction
case involving both parents, and the State rested its case. Mother then testified on her
own behalf. As relevant to this appeal, she testified that Father was employed cleaning
office buildings and admitted that they recently had been evicted for nonpayment of rent.
Mother testified that both she and Father remained committed to trying to fulfill their
reintegration plan tasks but that they felt they had not received any support from KVC
after April. She stated that they both had completed parenting classes. To explain Father's
"concerning behavior" at the April 23, 2015, visit, Mother testified that at the time of that
visit, Father was working varying shifts, so he was tired a lot of the time. By the time
Mother finished testifying, it was 5 p.m., so the court continued the trial to another day.

The trial resumed on August 20, 2015. Father was personally present and
represented by counsel. The State asked the district court, for the sake of clarification, to
again rule that ICWA did not apply. With no objection from either Mother or Father, the
district court again ruled that ICWA did not apply to the proceedings.

Father first called Maternal Grandmother as a witness. She testified that at the time
of the trial, Mother and Father lived at her home with her boyfriend, her nephew, and her
nephew's son. Maternal Grandmother testified that there was room in the 3-bedroom
house for M.G. to live there as well. She proposed Mother and Father would move to the
living room, M.G. would stay in the first bedroom, Maternal Grandmother's nephew
would be in the second bedroom, his son would take the third bedroom, and Maternal
Grandmother and her boyfriend would continue staying in the basement. Maternal
Grandmother admitted that she had used drugs but testified that she was now clean,
although she had not engaged in formal treatment.

8

Father testified on his own behalf. He explained that he had not been present for
the first day of trial because his friend's truck had broken down and he did not arrive at
Maternal Grandmother's house until 2:15 that afternoon. He had not continued on to the
courthouse, even though it was within walking distance of Maternal Grandmother's
house, because he thought the hearing was already over. Father then testified that, since
the last hearing, he had completed a drug and alcohol evaluation but he could not enter
into treatment at the recommended facility because he already was receiving services at
Johnson County Mental Health (JCMH). The recommended facility referred him back to
JCMH for substance abuse and mental health treatment. Father testified that he had not
started treatment yet but was planning to go the following day.

Father testified that he was employed fulltime and worked with Maternal
Grandmother's boyfriend. Father also stated that since the first day of the termination
trial, he had met with KVC workers, submitted to a drug test, and had answered all the
KVC workers' questions that he thought were relevant. Father refused to answer
questions about drug use because he did not think they were relevant. As to his drug use,
Father testified, "I am over that. I don't need to rehash all of that."

Father explained that he had not asked KVC to walk through his current home to
check if it was safe because he did not trust KVC and because he had only finished fixing
things up about 3 days earlier. He stated that he loved his children and would do anything
for them. When asked why he had not completed all the tasks of his reintegration plan, he
replied: "Just basically life. Life throws things at you and sometimes you are just not
able to keep everything going in the right directions and sometimes you fall back."

On cross-examination, Father admitted that he might have been arrested three
times while this case was pending, although he denied remembering being arrested. He
then testified, however, that the arrests were for driving while suspended and failure to
appear on the driving while suspended charge. Father also acknowledged that he had
9

been arrested on a fugitive warrant from Texas for "indecency of a child." At the end of
the hearing, the district court took judicial notice of the case file in the case from Texas,
but the case file is not included in the record on appeal.

Father testified that he had started using methamphetamines in 2001 and used for
approximately 6 or 8 years before he quit. Father admitted to relapsing four or five times,
but felt that nothing could make him relapse again. He did not believe that he needed
drug and alcohol treatment, but he was willing to go through with it "just to make sure."
He was not in therapy or counseling at the time of the trial, but he was taking prescription
medication for his mental health conditions.

In rebuttal, the State called Gutierrez. She testified that since the last trial day just
over a month earlier, Father had been required to take four drug tests and had submitted
to three, testing positive for benzodiazepines each time. Father claimed to have a
prescription for the medication but had not shown Gutierrez the prescription, despite her
request to see it.

After completion of the evidence, the district court set closing argument for
September 17, 2015. When the parties reconvened on that date, the district court did not
have time to hear the arguments, so it continued the hearing to September 21, 2015. Prior
to court adjourning, Father asked the district court to reopen evidence to allow him to
submit evidence that since the last trial day—over a month prior—he had been involved
in mental health and drug and alcohol treatment. The State and the guardian ad litem
objected to Father reopening the evidence, and the district court denied the motion.

When the trial resumed on September 21, 2015, Father informed the district court
that he had filed that morning a written motion to reopen evidence, renewing the oral
motion the court had denied. The written motion stated that "Father would testify that he
is engaged in ongoing treatment with Johnson County Mental Health to address his
10

substance abuse issues through their dual diagnosis program." The State and the guardian
ad litem again objected to Father's motion to reopen evidence, and the district court again
denied the motion. The parties then made their closing arguments.

The district court filed its memorandum decision on December 3, 2015. The
district court found by clear and convincing evidence that Father was unfit pursuant to
K.S.A. 2015 Supp. 38-2269(b)(7)—reasonable efforts by KVC case workers at
reintegration were unsuccessful; K.S.A. 2015 Supp. 38-2269(b)(8)—Father
"demonstrated a lack of effort to adjust [his] circumstances, conduct or conditions to
meet the needs of [M.G.]"; K.S.A. 2015 Supp. 38-2269(c)(2)—Father's failure to
maintain consistent visitation, contact, and communication with M.G. and KVC; and
K.S.A. 2015 Supp. 38-2269(c)(3)—Father's failure to complete his reintegration plan.
The district court also found that Father's unfitness was unlikely to change in the
foreseeable future and that it was in M.G.'s best interests to terminate parental rights.
Father timely appealed the district court's judgment.

On appeal, Father claims that (1) the State's failure to comply with the ICWA
notice requirements deprived the district court of jurisdiction to terminate his parental
rights; (2) the State deprived him of his statutory and constitutional rights to due process
by failing to give adequate notice of the grounds for terminating his parental rights; and
(3) the district court erred by denying his motion to reopen evidence. We initially will
address Father's second and third claims, and we will address the ICWA issue last.

NOTICE OF THE GROUNDS FOR TERMINATING PARENTAL RIGHTS

Father claims the State deprived him of his statutory and constitutional rights to
due process by failing to give adequate notice of the grounds for terminating his parental
rights. In response, the State argues that Father failed to properly preserve this issue for
11

appeal. In the alternative, the State argues that Father received proper notice of the
grounds for terminating his parental rights and any deficiency was harmless.

Initially, with regard to the State's preservation argument, we agree with the State
that Father failed to object in the district court to the adequacy of the notice of the
grounds for terminating his parental rights. Generally, issues not raised before the district
court cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375,
403, 266 P.3d 516 (2011). However, there are several exceptions to the general rule that a
new legal theory may not be asserted for the first time on appeal, including the following:
(1) the newly asserted claim involves only a question of law arising on proved or
admitted facts and is finally determinative of the case; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3)
the judgment of the trial court may be upheld on appeal despite its reliance on the wrong
ground or having assigned a wrong reason for its decision. In re Estate of Broderick, 286
Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1178 (2009).

Father invokes the second exception, asking this court to consider this claim to
prevent the denial of a fundamental right. Our Supreme Court previously has held that
due process is a fundamental right that may satisfy the second exception to the general
rule that parties may not raise issues for the first time on appeal. See Kansas Dept. of SRS
v. Paillet, 270 Kan. 646, 650, 16 P.3d 962 (2001). In addition, "parents have a
fundamental right to make decisions regarding the care, custody, and control of their
children. [Citation omitted.]" Frazier v. Goudschaal, 296 Kan. 730, 752-53, 295 P.3d 542
(2013). Based on this exception, we will consider for the first time on appeal Father's due
process claim regarding the sufficiency of the motion to terminate his parental rights.

"Whether a party's constitutional right to due process has been violated is a
question of law subject to de novo review. [Citations omitted.]" In re Care & Treatment
of Sykes, 303 Kan. 820, 823, 367 P.3d 1244 (2016). In addition, "[i]nterpretation of
12

statutes and the question of whether due process was provided under specific
circumstances raise issues of law, and an appellate court's review is unlimited. [Citations
omitted.]" Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1272, 136 P.3d 457 (2006).

K.S.A. 2015 Supp. 38-2266(b) provides: "Whenever a pleading is filed requesting
termination of parental rights . . . , the pleading shall contain a statement of specific facts
which are relied upon to support the request, including dates, times and locations to the
extent known." Here, the motion to terminate Father's parental rights included a facts
section that listed the procedural history of the case and noted several facts that had
prompted the State to file the motion, including the poor condition of Maternal
Grandmother's home, Father's charge in Texas for indecent liberties with a minor, the
amount of time the CINC case had been pending, and Father's lack of "progress toward
improving [his] circumstances."

Father argues that because the facts section did not mention "substance abuse,
positive UAs[,] failure to complete substance abuse treatment," or lack of visitation, the
State deprived him of his statutory and constitutional rights to due process by failing to
give adequate notice of the grounds for terminating his parental rights. Father also argues
that the State's "allegation of every single possible statutory basis to support termination
is insufficient to satisfy the specificity requirements of the statute."

"Due process requires that notice must be 'reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.'" In re L.S., 14 Kan. App. 2d 261, 263, 788
P.2d 875 (1990) (quoting Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 314, 70
S. Ct. 652, 94 L. Ed. 2d 865 [1950]). To be sufficient, the notice must give the party "a
reasonable time to prepare a defense to the litigation." In re H.C., 23 Kan. App. 2d 955,
961, 939 P.2d 937 (1997). Even more specifically, this court has held that "[a] motion for
the termination of parental rights may sufficiently meet a parent's due process rights if the
13

motion gives the parent adequate notice and an opportunity to be heard to defend against
the State's claims. [Citation omitted.]" In re K.H., No. 106,322, 2012 WL 687975, at *7
(Kan. App. 2012) (unpublished opinion).

We take issue with the fact that the State's motion listed all 13 nonexclusive
statutory factors that allow termination of parental rights under K.S.A. 2015 Supp. 38-
2269(b) and (c). This court rejected a similar "shotgun" approach in In re C.H.W., 26
Kan. App. 2d 413, 988 P.2d 276 (1999). In that case, the Kansas Department of Social
and Rehabilitation Services (SRS) filed a motion to terminate parental rights that
incorporated by reference 48 pages, including the filed petition in the case, journal entries
from multiple hearings, and reports submitted to the court at those hearings. The motion's
final paragraph asked the court to terminate parental rights "'pursuant to K.S.A. 38-1583
(a)(b)(2)(3)(4)(7)(8)(c)(1)(2)(3)(4)(d)(e).'" 26 Kan. App. 2d at 414. After an objection to
the adequacy of the notice provided in the motion, the district court dismissed the motion
and SRS appealed. In affirming the district court's decision to dismiss the motion, this
court stated:

"The procedure of incorporating entire reports by reference without making specific
allegations in the pleading leaves parents and their attorneys to defend against all
allegations in the reports or to choose certain allegations in the reports to defend against.
By the latter approach, parents risk losing their children if they choose the wrong
allegations to defend. By comparison, the probable value of requiring specific allegations
in the motion as a procedural safeguard is strong since it eliminates the guesswork." 26
Kan. App. 2d at 419.

The court in In re C.H.W. focused on the State's attempt to incorporate 48 pages of
attachments as a factual basis for a motion to terminate parental rights. However, the
court's reasoning also undermines the sufficiency of the State's attempt to list every
statutory factor as a basis for terminating Father's parental rights. By listing every factor
in the statute without providing factual support for each factor, the State placed Father in
14

the position of either preparing to defend against all the identified statutory factors or
running the risk of choosing the wrong allegations to defend against.

As to factual allegations, the State's motion to terminate parental rights listed the
procedural history of the case and alleged that Father failed his reintegration plan and
failed to provide stable housing for M.G. However, the motion failed to include any
specific factual allegations about Father's positive UAs, failure to complete substance
abuse treatment, and lack of visitation with M.G. Because the State ultimately presented
substantial evidence on these allegations at the termination hearing, we conclude that the
State failed to comply with the statutory and constitutional due process requirements for
giving Father adequate notice of the grounds for terminating his parental rights.

Deprivation of due process is subject to the harmless error test for reversibility.
See State v. Hurley, 303 Kan. 575, 583, 363 P.3d 1095 (2016). Because the error affects a
constitutional right, the State bears the burden to convince this court "'beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., proves there is no reasonable possibility that the
error affected the verdict.' [Citation omitted.]" 303 Kan. at 583-84.

The appropriate remedy for the State's failure to give Father adequate notice of the
grounds for terminating his parental rights would be to continue the hearing to allow
Father sufficient time to respond to the allegations against him. As it turns out, albeit
perhaps unintentionally, the district court already provided Father with this remedy. The
State presented its entire case-in-chief on the first day of trial on July 15, 2015, and then
rested. Because of the scheduling of the termination trial, over a month passed between
the first day of the trial—during which the State submitted evidence about Father's failed
drug tests, lack of visitation, and failure to complete required substance abuse and mental
health treatment—and the second day of the trial on August 20, 2015—at which Father
presented evidence to the court. Father addressed his substance abuse issues at length on
15

the second day of the trial. Father specifically testified that since the first day of trial, he
had submitted to drug testing and had completed a drug and alcohol evaluation but had
not yet started treatment. Father also addressed visitation issues with M.G. Thus, Father
was allowed to address—and did address—all the evidence the State had presented to
support termination of Father's parental rights.

Moreover, the district court did not base its decision to terminate Father's parental
rights solely on the factors about which Father complains he received insufficient notice.
The court also noted that reasonable efforts had failed to reintegrate M.G. with Father;
that Father failed to maintain stable housing or employment; and that Father failed to
adjust his circumstances, conditions, or conduct to meet M.G.'s needs. These are statutory
factors that may be considered in terminating parental rights under K.S.A. 2015 Supp.
38-2269(b)(7)-(8), (c)(3), and Father received notice of these factors in the motion.

In light of the entire record, we conclude there is no reasonable possibility that any
deficiency in notice to Father affected the termination of his parental rights. Thus, any
error caused by inadequate notice of the grounds for termination was harmless and does
not require reversal of the district court's decision to terminate Father's parental rights.

MOTION TO REOPEN EVIDENCE

Father also claims the district court erred by denying his motion to reopen
evidence. The State responds that the district court did not err because the motion to
reopen evidence was late, Father made an insufficient proffer of the evidence he wished
to submit, and continuing the hearing to allow Father to admit additional evidence would
have prejudiced M.G.

Kansas appellate courts review the district court's denial of a motion to reopen
evidence for abuse of discretion. State v. Murdock, 286 Kan. 661, 672, 187 P.3d 1267
16

(2008). A district court abuses its discretion when it takes action that is "(1) arbitrary,
fanciful, or unreasonable; (2) based on an error of law, or (3) based on an error of fact.
[Citation omitted.]" Garcia v. Ball, 303 Kan. 560, 566, 363 P.3d 399 (2015). The party
asserting that the district court abused its discretion bears the burden of showing such
abuse of discretion. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan.
906, 935, 296 P.3d 1106 (2013).

This court has reviewed a denial of a motion to reopen evidence in a termination
of parental rights case by using the same standard used to review the denial of a motion
to reopen evidence in a criminal trial. See, e.g., In re A.M., No. 111,113, 2014 WL
6676181, at *7 (Kan. App. 2014) (unpublished opinion). Father acknowledges that the
district court "maintains broad discretion as to whether or not to re-open evidence."
However, Father claims that the district court's refusal to reopen the evidence "was
unreasonable and arbitrary and therefore an abuse of discretion."

A quick review of the relevant facts is helpful. The termination trial began on July
15, 2015, at which time the State presented its case-in-chief and rested. The remainder of
that day consisted of Mother testifying on her own behalf. The second day of trial
occurred on August 20, 2015, and Father presented his case, calling Maternal
Grandmother and testifying on his own behalf. The State also called Gutierrez as a
rebuttal witness. Father made no request to present any additional evidence.

Closing argument was set for September 17, 2015, but on that day the district
court did not have time for a hearing, so it continued the matter to September 21, 2015.
Prior to court adjournment, Father asked the district court to reopen evidence to allow
him to present evidence that since the second day of trial—August 20—he had been
participating in mental health and drug and alcohol treatment. The district court denied
the motion. On September 21, 2015, Father filed a written motion to reopen evidence,
renewing his oral motion. The written motion described the evidence that would be
17

offered as follows: "Father would testify that he is engaged in ongoing treatment with
Johnson County Mental Health to address his substance abuse issues through their dual
diagnosis program." The district court again denied the motion.

Father first points out that the CINC code holds no prohibition against reopening
evidence. Father also notes that in order to terminate a parent's rights, a court must find
the parent "unfit by reason of conduct or condition which renders the parent unable to
care properly for a child and the conduct or condition is unlikely to change in the
foreseeable future." See K.S.A. 2015 Supp. 38-2269(a). By denying his request to reopen
evidence, Father asserts the district court erroneously chose not to consider evidence that
has a direct bearing on whether the conduct or conditions that rendered Father unfit were
likely to change in the foreseeable future.

The State argues that Father made an insufficient proffer of the evidence that he
intended to submit to the district court. K.S.A. 60-405 provides that a judgment or
decision of the district court shall not be reversed by reason of the erroneous exclusion of
evidence unless the proponent of the evidence either made known the substance of the
evidence in a forum approved by the judge, or indicated the substance of the expected
evidence by questions and answers.

Father's written motion to reopen the evidence asserted that "Father would testify
that he is engaged in ongoing treatment with Johnson County Mental Health to address
his substance abuse issues through their dual diagnosis program." Although this proffer
indicates the subject matter of Father's proposed testimony, the proffer provides no
information about the substance of the testimony and leaves many unanswered questions.
Was Father attending all his treatment sessions? Was Father complying with all the terms
and conditions of the treatment program? Was Father making progress in overcoming his
long history of substance abuse and mental health issues? Did Father have any positive
UAs in the last month? What was Father's long-term prognosis?
18

Father's proffer of the evidence that he intended to submit probably was sufficient
to comply with K.S.A. 60-405 and to preserve this issue for appeal. Nevertheless, the
party asserting that the district court abused its discretion bears the burden of showing
such abuse of discretion. Northern Natural Gas Co., 296 Kan. at 935. Father's vague
proffer fails to provide this court with sufficient information for Father to meet his burden
of establishing that the district court abused its discretion in denying the motion to reopen
evidence. Although it certainly would have been within the district court's discretion to
grant Father's motion to reopen the evidence, we are hard-pressed to find that no
reasonable judge would have denied the motion and that the district court's decision was
arbitrary, fanciful, or unreasonable. See Garcia, 303 Kan. at 566.

Finally, the State argues that even if the district court erred in denying the motion
to reopen evidence, any error was harmless. The State acknowledges in its brief that the
error may be declared harmless only when the party benefitting from the error proves
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., proves there is no reasonable
possibility that the error affected the verdict. See Hurley, 303 Kan. at 583.

Here, Father makes no attempt on appeal to challenge the sufficiency of the
evidence supporting the district court's decision to terminate his parental rights. M.G. was
3 years old at the time of the termination hearing and the case had been pending 24
months. Father acknowledged he had a problem using methamphetamine that dated back
many years. He admitted to relapsing four or five times but felt that nothing could make
him relapse again. Father tested positive for methamphetamine as recently as April 2015.
When Father was interviewed by KVC workers after the first day of trial on July 15,
2015, Father refused to answer questions about drug use because he determined the
questions were not "relevant." At the hearing on August 20, 2015, Father testified that he
did not believe that he needed drug and alcohol treatment, but he was willing to go
through with it "just to make sure." Under the circumstances, it is hard to imagine how
19

additional evidence that Father had been "engaged in ongoing treatment" in the month
since the last hearing would have had any effect on the district court's ultimate decision.

Moreover, the district court's decision to terminate Father's parental rights was not
based solely on his substance abuse issues. The evidence established that Father provided
no stable housing for M.G. throughout the pendency of the case. Father also failed to
provide proof of stable employment. There were domestic abuse issues in the family.
Father had not attempted to visit M.G. since April 2015, and the caseworkers lost contact
with him after that date. Father was arrested three times while the case was pending.
Father acknowledged that there was a fugitive warrant from Texas charging him with
indecent liberties of a child, but the record does not reflect the disposition of that case.

The State presented evidence of Father's unfitness that dated back for several years
before the termination hearing. Father was given the opportunity to thoroughly address
all the State's evidence when he testified on August 20, 2015. Even if the district court
erred by denying Father's motion to reopen the evidence, based on the proffer of the
evidence, we are convinced there is no reasonable possibility that the error affected the
outcome of the trial in light of the entire record. Thus, any error was harmless and does
not require us to reverse the district court's judgment terminating Father's parental rights.

FAILURE TO COMPLY WITH ICWA

Father also claims that the State failed to comply with ICWA's notice requirements
by failing to send notice to the identified tribes by certified mail with return receipt
requested. He contends that the State's failure requires this court to either invalidate the
order terminating his parental rights or reverse and remand for further proceedings to
ensure compliance with ICWA. The State admits that it did not comply with ICWA's
notice requirements but asks this court to remand to the district court for a hearing to
determine whether ICWA applies rather than simply reverse the termination order.
20

"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. [2015] 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 the Indian Child Welfare Act
of 1978 [25 U.S.C. § 1901 et seq.][(ICWA)] applies.' K.S.A. [2015] Supp. 38-2203(a)."
In re M.F., 290 Kan. 142, 148-49, 225 P.3d 1177 (2010).

An "Indian child" is "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." See 25 U.S.C. § 1903(4) (2012); In
re M.F., 290 Kan. at 149 (using ICWA definition for Indian child to determine whether
ICWA applied to Kansas CINC case). Under ICWA, a "party seeking the foster care
placement of, or termination of parental rights to, an Indian child" must notify "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) (2012). Determining whether
ICWA applies is a question of law over which an appellate court exercises unlimited
review. See In re A.J.S., 288 Kan. 429, 431-32, 204 P.3d 543 (2009).

The record on appeal is unclear as to what triggered the ICWA notice
requirements in M.G.'s case. However, Father raised the issue of ICWA notice
compliance prior to the start of the termination trial, pointing out that the parties were still
awaiting responses to the tribal notices and arguing that until it was clear that ICWA did
not apply, the trial should not proceed. By doing so, Father properly preserved this issue
for appeal. The district court found that ICWA was not applicable, but the record does
not reflect how the district court reached this conclusion.

Because the State now admits on appeal its failure to comply with ICWA's notice
requirements, the only remaining question is the appropriate remedy. Father first argues
that the State's failure to comply with ICWA's notice requirement deprived the district
21

court of jurisdiction to enter orders in the case. Thus, Father argues that this court must
reverse the order terminating his parental rights.

The only case cited by Father to support this assertion is In re M.H., 50 Kan. App.
2d 1162, 337 P.3d 711 (2014). In that case, a panel of this court found that had the State
not added to the record on appeal documents showing it had complied with ICWA's
notice requirements, "we would have been required either to reverse the district court's
judgment . . . or to send the case back for further proceedings on the notice issue." 50
Kan. App. 2d at 1168. However, the court did not reach the question of an appropriate
remedy because the State had added documents showing compliance to the record on
appeal, so no relief was warranted. 50 Kan. App. 2d at 1168-69. In re M.H. does not
address jurisdiction and the case does not support Father's assertion that failure to ensure
compliance with ICWA's notice provisions divested the district court of jurisdiction.

In the alternative, Father argues that this court should reverse and remand for
further proceedings for the district court to provide proper ICWA notice and determine
whether ICWA applies. The State agrees with this disposition but argues that this court
may remand for such proceedings without vacating the termination order. In support, the
State points to In re J.M.B., No. 112,578, 2015 WL 4460578 (Kan. App. 2015)
(unpublished opinion), wherein this court determined that the proper remedy for a failure
to comply with ICWA's notice requirements was remand for a hearing to determine
whether the child in question was a member or was eligible to be a member of the tribe
that had been identified in district court. 2015 WL 4460578, at *12. This court stated:

"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
22

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." 2015 WL 4460578, at *12.

We note that the same district judge who presided over Father's case has been
reversed in multiple termination of parental rights cases for failure to comply with
ICWA. See In re M.F., 41 Kan. App. 2d 927, 206 P.3d 57 (2009) (reversing and
remanding for failure to comply with ICWA's requirement of qualified expert witnesses),
aff'd 290 Kan. 142, 225 P.3d 1177 (2010); In re M.B., 39 Kan. App. 2d 31, 36-42, 176
P.3d 977 (2008) (this court found that Judge Sloan had failed to comply with ICWA, but
ultimately upheld the challenged ruling as right for the wrong reason); In re J.M.B., 2015
WL 4460578 (reversing and remanding for failure to comply with ICWA). Father argues
that the only way to get the district court's attention and ensure the judge's future
compliance with ICWA is to set aside the order terminating his parental rights.

Although it certainly would be preferable for the district court to comply with
ICWA requirements in the first instance, we find that the remedy applied in In re J.M.B.
is logical and appropriate and should be applied herein. Thus, we conclude that this case
must be remanded for the district court to conduct a hearing to determine if the tribes in
question were properly notified of the proceedings and to decide, based on the tribes'
responses, whether M.G. is an Indian child subject to the provisions of ICWA. If the
district court finds based on proper evidence that M.G. is not an Indian child, then the
termination of Father'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 Father's parental rights. But if the district court finds that M.G. is an
Indian child, then the district court is directed to set aside the termination of Father's
parental rights and all further proceedings shall be governed by the provisions of ICWA.

23

Affirmed in part and remanded with directions.