Family Forum / Parenting / Adoption / August 2004

That particular law is rarely followed.

No. 91,419

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE INTEREST OF D.C.,

D.O.B.: 10/13/00,

A Minor Under the Age of 18 Years of Age.

SYLLABUS BY THE COURT

1. Once the district court has ordered a child into Kansas Department
of Social and Rehabilitation Services (SRS) custody for adoptive
placement under K.S.A. 38-1584(b)(1)(A), the court's role is limited
to supervision to ensure the appointed agency diligently seeks an
appropriate placement of the child. A district court's review of an
agency adoption placement decision following a voluntary
relinquishment is similarly limited.

2. K.S.A. 38-1584(d) plainly allows judicial review of the agency
placement process to determine whether "reasonable efforts or
progress" has been made. "Reasonable efforts" means more than the
efficiency of finding suitable adoptive placements. If "reasonable
efforts" encompasses only the efficiency with which SRS finds suitable
adoptive placements, the inclusion of the term "reasonable progress"
would be rendered redundant by the term "reasonable efforts" and,
therefore, rendered meaningless.

3. The purpose of K.S.A. 38-1584 is to provide stability in the life
of a child who must be removed from the home of a parent, to
acknowledge that time perception of a child differs from that of an
adult, and to make the ongoing physical, mental, and emotional needs
of the child the decisive consideration in proceedings under this
section. The primary goal for all children whose parents' parental
rights have been terminated is placement in a permanent family
setting. K.S.A. 38-1584(a).

4. A reasonable permanent placement decision necessarily implies a
decision that is in the best interests of the child under the
circumstances. Efficiency of placement is but one aspect of an
appropriate placement decision. The policies and procedures
implemented by an agency and the manner in which those policies and
procedures are implemented affect the reasonableness of an adoptive
placement decision as much as the timeliness of the placement
decision.

5. When a district court is required to make a custody placement
decision after the termination of parental rights, the court must
consider all of the facts and circumstances in light of the child's
physical, mental, and emotional needs. In doing so, the court must
give primary consideration to granting custody to a relative of the
child.

6. With respect to the relative preference in adoptive placement under
K.S.A. 38-1584(d), "reasonable efforts" requires, at a minimum, that
the agency responsible for finding suitable placement impartially
consider any relatives of a child who are potential adoptive resources
in a timely and consistent manner.

7. A district court is authorized to rescind its prior orders and to
enter new orders regarding custody or adoptive placement once the
court has determined that the agency responsible for finding suitable
placement has not exercised reasonable efforts or progress in doing
so.

8. A district court's discretion in effecting a child custody or
placement determination is subject to the child's best interests.

9. In determining what is within the best interests of a child, the
district court's only concern should be the physical, mental, and
emotional needs of the child and how a potential adoptive resource may
address those needs.

Appeal from Labette District Court; DANIEL L. BREWSTER, judge. Opinion
filed July 9, 2004. Affirmed in part, reversed in part, and remanded.

Richard Shaw, of Chanute, for appellant Kansas Department of Social
and Rehabilitation Services.

Dan E. Turner and Phillip L. Turner, of Topeka, for appellant foster
parents.

David K. Markham, of Tucker and Markham, of Parsons, for appellees
maternal aunt and uncle.

Linus A. Thuston, of Chanute, guardian ad litem.

Sarah J. Sargent, of Topeka, for amicus curiae Kansas Children's
Service League.

Before RULON, C.J., ELLIOTT and HILL, JJ.

RULON, C.J.: The Kansas Department of Social and Rehabilitative
Services (SRS) and L.W. and R.W., the foster parents of D.C., appeal
the district court's judgment that SRS and its contracting agency,
Kansas Children's Service League (the League), had not exercised
reasonable efforts in finding a permanent placement for D.C. and the
court's order to transfer D.C. to her maternal aunt and uncle, J.P.
and D.P., in Arizona. We affirm in part, reverse in part, and remand
the case for further proceedings.

Shortly after D.C. was born on October 13, 2000, she was taken from
her natural parents and placed with a maternal aunt, P.B., who lived
in Parsons. Although the Arizona relatives expressed an interest in
becoming permanent guardians of the child and an expedited home study
was conducted in Arizona, SRS filed its motion to terminate the
natural parents' rights to D.C. Thereafter, the natural parents
relinquished their rights to the child, and the child was placed with
her Parsons aunt.

The Arizona aunt and uncle expressed their wish to adopt the child,
but, because SRS and the League failed to request information on the
child's Native American heritage under the Indian Child Welfare Act,
25 U.S.C. § 1901 (2000) et seq., see K.S.A. 38-1339, the agencies
could not move forward with the Arizona relatives' adoption request
under the Interstate Compact for the Placement of Children (Interstate
Compact). See K.S.A. 38-1201 et seq. Consequently, SRS, the League,
and the guardian ad litem decided to terminate the Interstate Compact
process for the Arizona relatives and attempted to place the child
with the Parsons aunt.

The attempted adoptive placement with the Parsons aunt was
unsuccessful, and the child was placed in the home of the foster
parents. Thereafter, the Arizona relatives and the foster parents both
sought to adopt D.C. After finally completing an adoptive placement
home study through the Interstate Compact, the League held a case plan
meeting at which SRS and the League unanimously decided to place D.C.
with the foster parents, not the Arizona relatives.

The Arizona relatives contested the placement decision. After a full
evidentiary hearing, the district court ruled that SRS and the League
had not used reasonable efforts in placing D.C. because the agencies
had disregarded policies regarding placement preferences for relatives
of the child. The district court further ordered placement of D.C.
with the Arizona relatives under K.S.A. 38-1584(b)(1)(A). SRS and the
foster parents appealed.

Judicial Authority to Review Placement Decision

Although the appellants argue the district court lacks authority to
review a placement decision of SRS when the agency gains custody of a
child through voluntary relinquishment proceedings, this court has
previously rejected that argument. See In re J.D., 31 Kan. App. 2d
658, 70 P.3d 700 (2003).

"Although it may be true that [K.S.A.] 38-1584(d) explicitly comes
into play only when there has been an involuntary termination of
parental rights, we see no meaningful distinction between a child in
those circumstances and one in the position of J.D. Indeed, if a CINC
proceeding has already been filed when a voluntary relinquishment
takes place, the situation is practically and legally identical to
that in a CINC proceeding where an involuntary termination has
occurred. At that point, the court has a necessary and continuing role
in supervising an appropriate permanency plan designed to prevent
foster care 'drift.' [Citations omitted.]" 31 Kan. App. 2d at 663-64.

However, once the district court has ordered a child into SRS custody
for adoptive placement under K.S.A. 38-1584(b)(1)(A), the court's role
is limited to supervision to ensure the appointed agency diligently
seeks an appropriate placement of the child. A district court's review
of an agency adoption placement decision following a voluntary
relinquishment is similarly limited. See In re J.D., 31 Kan. App. 2d
at 664.

The appellants attempt to impose a narrow interpretation of
"reasonable efforts" upon the statute, arguing that if SRS determines
an appropriate placement for a child within a reasonable amount of
time, the district court possesses no statutory authority to
disapprove of such placement. In contrast, the Kansas Code for the
Care of Children, K.S.A. 38-1501 et seq., is to be liberally construed
to provide children with the care, custody, guidance, control, and
discipline that will best serve the welfare of the child and the
interests of Kansas. See K.S.A. 38-1501.

K.S.A. 38-1584(d) plainly allows judicial review of the agency
placement process to determine whether "reasonable efforts or
progress" has been made. If "reasonable efforts" encompasses only the
efficiency with which SRS finds suitable adoptive placements, the
inclusion of the term "reasonable progress" would be rendered
redundant by the term "reasonable efforts" and, therefore, rendered
meaningless. It is a maxim of statutory interpretation that a court
presumes that the legislature did not intend to enact useless or
meaningless legislation. See In re M.R., 272 Kan. 1335, 1342, 38 P.3d
694 (2002).

"The purpose of [K.S.A. 38-1584] is to provide stability in the life
of a child who must be removed from the home of a parent, to
acknowledge that time perception of a child differs from that of an
adult and to make the ongoing physical, mental and emotional needs of
the child the decisive consideration in proceedings under this
section. The primary goal for all children whose parents' parental
rights have been terminated is placement in a permanent family
setting." (Emphasis added.) K.S.A. 38-1584(a).

In light of this purpose, a reasonable permanent placement decision
necessarily implies a decision that is in the best interests of the
child under the circumstances. Efficiency of placement is but one
aspect of an appropriate placement decision. The policies and
procedures implemented by an agency and the manner in which those
policies and procedures are implemented affect the reasonableness of
an adoptive placement decision as much as the timeliness of the
placement decision.

When a district court is required to make a custody placement decision
after the termination of parental rights, the court must consider all
of the facts and circumstances in light of the child's physical,
mental, and emotional needs. In doing so, the court must give primary
consideration to granting custody to a relative of the child. See In
re J.A., 30 Kan. App. 2d 416, 423, 42 P.3d 215, rev. denied 274 Kan.
1112 (2002); K.S.A. 38-1584(b)(4).

The League admits that it is governed by similar considerations in
making a placement decision. With respect to relative preference,
"reasonable efforts" requires, at a minimum, that the agency
responsible for finding suitable placement impartially consider any
relatives of a child who are potential adoptive resources in a timely
and consistent manner. Because SRS and the League allegedly excluded
the Arizona relatives as an adoptive resource by failing to consider
their application in a timely and consistent manner, the district
court was well within its authority to review the reasonable efforts
of SRS and the League's placement determination under K.S.A.
38-1584(d).

"Reasonable Efforts" Determination

In finding that SRS and the League had not exercised reasonable
efforts in the placement of D.C., the district court adopted the
proposed findings of the Arizona relatives, the assistant county
attorney, and the guardian ad litem. Where a district court has made
findings of fact and conclusions of law, an appellate court applies a
mixed standard of review. A district court's findings of fact are
reviewed for substantial competent evidence, which is such legal and
relevant evidence as a reasonable person might accept as sufficient to
support the legal conclusions. Unrau v. Kidron Bethel Retirement
Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001). This court
possesses unlimited review of the district court's legal conclusions.
Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d
719 (1999).

The factual allegations leveled against SRS and the League revolve
around three issues involving the implementation of the Arizona
relatives' Interstate Compact process, the notification of pertinent
procedures and policies with respect to the placement process, and the
consistent application of evaluation criteria.

The Interstate Compact for the Placement of Children

Even before the natural parents relinquished their rights to D.C., the
Arizona relatives had expressed interest in obtaining custody of D.C.
as guardians. At the time, the district court approved a relative
placement home study for the Arizona relatives, which involved an
expedited Interstate Compact process. After D.C.'s parents
relinquished their rights, the Arizona relatives expressed interest in
adopting D.C. Still, the League did not send the Interstate Compact
request for an adoptive placement home study to Arizona for another 10
months.

According to SRS and the League, the primary delay in completing the
Interstate Compact process was the absence of Indian Child Welfare Act
information. Although such information is required in every agency
adoption case, Interstate Compact procedures apparently demand that
the agency acquire information on the child's Native American
ancestry, if any, before forwarding the Interstate Compact request to
the foreign jurisdiction. Yet, no Indian Child Welfare Act information
was sought in this case prior to the League's entry into the adoptive
process.

Nevertheless, after the parental rights to D.C. were relinquished to
SRS, neither SRS nor the League attempted to obtain Indian Child
Welfare Act information until April 8, 2002. This failure, especially
in light of the apparent Interstate Compact requirements, cannot be
deemed the exercise of reasonable efforts to include the Arizona
relatives in the adoptive placement consideration. Even when the
League realized that information regarding D.C.'s Native American
heritage had not been obtained, the agency failed to pursue the
information diligently. Rather than sending a registered letter with
return receipt requested to pertinent tribes providing sufficient
notice of D.C.'s history to enable a tribe to determine whether D.C.
qualifies for tribal membership, as required by 25 U.S.C. § 1912(a)
(2000), the League faxed the Indian Child Welfare Act requests to the
pertinent tribes. A copy of the fax is not included in the record.

Had the League strictly complied with the notice requirements of 25
U.S.C. § 1912(a), the nonaffiliation of D.C. could have been presumed
if the notified tribes had failed to respond within 10 days (or 30
days upon the tribe's request). See In re T.M., 245 Mich. App. 181,
187, 628 N.W.2d 570 (2001) ("If proper notice is provided and a tribe
fails to either respond or intervene in the matter, the burden shifts
to the parties . . . to show that [the Indian Child Welfare Act] still
applies."); In re Levi U., 78 Cal. App. 4th 191, 198, 92 Cal. Rptr. 2d
648 (2000) ("[T]he lack of any response from [the Bureau of Indian
Affairs], and the absence of any communication sent to [the Butte
County Children's Services Division] by a tribe, were tantamount to
determinations that the minor was not an 'Indian child' within the
meaning of the Act.").

The League's social worker, Dana Ison, admitted that a non-Indian
affidavit could have been used to comply with the Indian Child Welfare
Act requirements for purposes of the Interstate Compact if the tribes
failed to respond to a request in writing but that SRS refused to
complete an affidavit in this case. The League concedes that it could
have expedited the Indian Child Welfare Act request by mailing a
15-day letter to the tribes. Such a letter was mailed in July 2002.
There is no indication why this letter could not have been mailed
earlier so that the Arizona relatives' Interstate Compact request
could have been sent to Arizona in time for them to have been
considered for adoption placement in October 2002.

The appellants contend this court should not consider the
reasonableness of the failure of SRS and the League to timely request
Indian Child Welfare Act information because the district court
specifically determined that reasonable efforts had been made toward
an adoption placement on September 24, 2002, after the initial delay
in seeking information on D.C.'s Native American heritage. However,
because the Arizona relatives were never given notice of the September
24th hearing, they cannot be precluded from using evidence prior to
the September 24, 2002, hearing to argue that the agencies'
application of policies and procedures with respect to their adoption
application was unreasonable. See Jackson Trak Group, Inc. v. Mid
States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988)
(discussing the elements of res judicata and collateral estoppel).

Moreover, even if this court adopted the appellants' arguments,
deeming the district court's September order controlling on the issue
of reasonable efforts to that time, the appellants fail to justify
further delays regarding the Interstate Compact process. Once SRS and
the League received a response from the tribes, there was no attempt
to initiate an Interstate Compact request to mitigate against the
possibility that the placement with the Parsons aunt might fail. When
the placement did fail to the extent that the Parsons aunt attempted
suicide and D.C. was taken out of the Parsons aunt's home and placed
in foster care, SRS and the League still did nothing with respect to
the Interstate Compact process. A month after the League determined
that D.C.'s reintegration with the Parsons aunt was no longer
feasible, the agency finally forwarded the Interstate Compact request
to Arizona.

SRS and the League offered no reasonable explanation for this further
delay. In fact, when social worker Dana Ison suggested using an
expedited Interstate Compact process, the League's adoption supervisor
discouraged the suggestion, indicating that a regular Interstate
Compact process had been started, even though the request had not yet
been forwarded to Arizona.

The result of these delays was to permit the foster parents to form an
attachment to D.C., which encouraged them to seek adoption in December
2002. More importantly, the delay permitted D.C. to develop emotional
bonds with her foster family that might not have occurred if D.C. had
been able to be moved to Arizona more quickly. Under these
circumstances, we cannot fault the district court's finding that SRS
and the League failed to exercise reasonable efforts to ensure that
the Arizona relatives' adoption application was adequately considered
in a timely manner.

Diligence in Informing of the Placement Process

As previously mentioned, the League failed to inform the Arizona
relatives of any existing right to a review of the decision to
terminate the Interstate Compact process. When the League finally
received responses from the tribes, the agency failed to notify the
Arizona relatives. The League did not notify the Arizona relatives of
the initial placement hearing on September 24, 2002. After the initial
placement with the Parsons aunt failed, the League did not inform the
Arizona relatives.

While SRS and the League are not solely responsible for maintaining
contact with potential placement sources, the evidence in this case
indicates the contact was heavily one-sided on the part of the Arizona
relatives. Furthermore, the record reflects that the League contacted
the Arizona relatives only grudgingly. During a case plan meeting
following the Parsons aunt's placement disruption, the League's
adoption supervisor is credited with stating, "KCSL will still have to
go thru [sic] the motions with the Aunt in Arizona."

We conclude substantial evidence exists in the record to support the
district court's finding that SRS and the League did not exercise
reasonable efforts to keep the Arizona relatives adequately informed
of the adoptive placement process.

Inconsistent Application of Evaluation Criteria

The appellants contend the district court cannot appropriately reweigh
the facts relied upon to support the agency's best interests analysis.
We agree. However, reasonable efforts demand that an agency apply its
policies and procedures, including the adoption placement evaluation
criteria, consistently and fairly.

The district court's finding that SRS and the League effectively
excluded the Arizona relatives from meaningful consideration for
adoptive placement of D.C. is adequately supported by the record.
Contrary to the arguments of the League, as amicus curiae in this
case, the district court's determination does not challenge the
policies and procedures adopted by SRS and the League to handle
adoptive placements. Rather, the district court found the agencies
failed to implement their policies and procedures equitably in an
attempt to find the best possible placement for D.C. This is the
purpose of the statutory "reasonable efforts" provision in K.S.A.
38-1584(d).

Court Ordered Placement

Finally, the appellants contend that, even if the district court
properly found that SRS and the League failed to exercise reasonable
efforts in finding an adoptive placement for D.C., the district court
improperly exercised its authority in placing D.C. with the Arizona
relatives.

"If the court determines that reasonable efforts or progress have not
been made toward finding an adoptive placement or establishing an
acceptable permanent guardianship or placement with a fit and willing
relative, the court may rescind its orders and make other orders
regarding custody and adoption that are appropriate under the
circumstances." (Emphasis added.) K.S.A. 38-1584(d).

Based upon the plain meaning of the statute, a district court is
authorized to rescind its prior orders and to enter new orders
regarding custody or adoptive placement once the court has determined
that the agency responsible for finding suitable placement has not
exercised reasonable efforts or progress in doing so. See In re J.D.,
31 Kan. App. 2d at 665. The statute does not restrict the district
court's power to fashion a suitable order for the placement of the
child, and this court does not read into statutes that which is not
readily found therein. See GT, Kansas, L.L.C. v. Riley County Register
of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).

However, a district court's discretion in effecting a child custody or
placement determination is subject to the child's best interests. The
party challenging a district court's determination bears the burden of
demonstrating that no reasonable person would take the position
adopted by the district court. See In re J.A., 30 Kan. App. 2d at 423.

Although a district court must consider the totality of the
circumstances in determining what is in the best interests of a child,
this court has previously enumerated a nonexhaustive list of factors
for considering a placement decision:

"1. The child's attachment to the parties;

"2. whether there has been any history of sexual, physical, emotional,
or substance abuse on the part of any family member;

"3. age and health of the parties;

"4. whether the child would have siblings close to his age;

"5. motivation of the parties for wanting to adopt;

"6. potential permanence of the relationship between the child and
adopting parents;

"7. emotional needs of the child;

"8. parenting skills, strength, and weaknesses; and

"9. special needs of the child." In re J.A., 30 Kan. App. 2d at
425-26.

The district court clearly considered each of the factors and
indicated the court's assessment of each factor as it pertained to the
case. Ultimately, the district court found that the Arizona relatives
and the foster parents would provide equally appropriate placements
for D.C. and applied the relative preference to determine that D.C.
should be placed with the Arizona relatives.

The district court did not abuse its discretion in determining the
parties were equally appropriate placements, except that, in
considering D.C.'s emotional attachments, the district court
acknowledged a bond between the child and her foster family but
discounted this factor as being unfair to the Arizona relatives who
were never provided an opportunity to create such a bond with D.C.
This analysis improperly directs the focus of inquiry upon the
potential adoptive parents rather than upon the physical, mental, and
emotional needs of the child.

In determining what is within the best interests of a child, the
district court's only concern should be the physical, mental, and
emotional needs of the child and how a potential adoptive resource may
address those needs. See In re A.F., 13 Kan. App. 2d 232, 235, 767
P.2d 846 (1989) ("Between two competing custodial parties with equal
interests, the question of unfitness is not the standard; rather, the
standard is the best interests of the child.").

Because the district court discounted the acknowledged emotional bond
D.C. shared with the foster parents, the case must be remanded for
another best interests analysis. This is not to imply that simply
because an emotional bond exists between D.C. and the foster parents,
it is in D.C.'s best interests to be placed with the foster parents.
The list of factors articulated in In re J.A. are not exclusive.
However, the district court may not discount a potential factor
indicating a placement in the best interests of D.C. because of
considerations outside of the child's best interests.

Affirmed in part, reversed in part, and remanded for further
proceedings.

END