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Nos. 116,155

 116,156

 116,157

 116,158

 116,159

 116,160

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE INTEREST OF L.M.B., A.B., and L.B.,

MINOR CHILDREN.

SYLLABUS BY THE COURT

1.

When the State seeks to terminate parental rights to an Indian child, the federal 

Indian Child Welfare Act requires proof beyond a reasonable doubt and support by expert 

testimony that continued parental custody would likely result in serious emotional or 

physical damage to the child. See 25 U.S.C. § 1912(f) (2012).

2.

To determine whether an expert witness is qualified under the Indian Child 

Welfare Act, the court should consider guidelines issued by the Bureau of Indian Affairs.

3.

When the State seeks to terminate parental rights to an Indian child, the federal 

Indian Child Welfare Act also requires that the State show that it has used active efforts 

to prevent the breakup of the Indian family. See 25 U.S.C. 1912(d) (2012). The State 

need not have made every possible effort, but its actions may not be merely passive ones, 

such as offering services and leaving it entirely up to the parent to take any further steps. 

4.
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The State must show that it has used active efforts by clear and convincing 

evidence.

5.

The failure to meet a procedural requirement of the Indian Child Welfare Act is 

subject to the traditional harmless-error rule, under which errors that do not affect a 

party's substantial rights are not sufficient to merit reversal.

6.

The qualifications of the expert witness in this case, who was a member of the 

tribe of the involved children, has a PhD in Native American History, teaches Indian 

studies, and teaches classes on the Indian Child Welfare Act, met the requirements to be 

an expert witness under the Indian Child Welfare Act.

7.

On the facts of this case, the State presented sufficient evidence, supported by the 

opinion of a qualified expert, to show beyond a reasonable doubt that continued parental 

custody would likely result in serious emotional or physical damage to the child; the State 

presented clear and convincing evidence that it used active efforts to prevent the breakup 

of the Indian family; and the error of not having a qualified expert testify at the first, or 

adjudication, stage of the proceeding was harmless error. 

Appeal from Kiowa District Court; SIDNEY R. THOMAS, judge. Opinion filed June 16, 2017. 

Affirmed.

Michael K. Johnston, of Johnston, Eisenhauer, Eisenhauer & Lynch, LLC, of Pratt, for appellant 

natural mother.

Sarah Bootes Shattuck, of The Shattuck Law Office, LLC, of Ashland, for appellant natural 

father. 
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Chay Howard, assistant county attorney, and J. Scott James, county attorney, for appellee.

Before LEBEN, P.J., PIERRON and BRUNS, JJ.

LEBEN, J.: R.B. is the mother and D.B. the father of three minor children, L.M.B., 

A.B., and L.B. All three children are members of the Citizen Potawatomi Nation. In 

November 2014, the children were removed from their parents' home after another family 

member reported that the parents were injecting methamphetamine in their basement and 

Father had sexually assaulted her. Eventually, in May 2016, the district court terminated 

Mother's and Father's parental rights, and they challenge that termination in this appeal. 

First, they argue that the evidence wasn't sufficient to support the termination of 

their parental rights. But reviewing all of the evidence in the light most favorable to the 

State (as we are required to do since the factfinder, the district court, determined the facts 

in favor of the State's position), the district court could have reasonably concluded that 

remaining in their parents' custody would be likely to cause serious emotional or physical 

damage to the children. The parents also challenge whether the State's expert witness was 

in fact qualified under the Indian Child Welfare Act. But according to the guidelines put 

out by the Bureau of Indian Affairs, the expert was qualified because he was a member of 

the same tribe as the children and had a PhD in Native American history, so he was well 

equipped with specific knowledge of the Indian tribe's culture and customs related to 

childrearing and family organization. 

Next, the parents argue that the State didn't use active efforts, as required by the 

Indian Child Welfare Act, to provide remedial services and rehabilitative programs 

designed to prevent the breakup of the Indian family. But after reviewing all of the 

evidence in the light most favorable to the State, we are convinced that the district court 
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could have found it highly probable that the State used active efforts to prevent the 

breakup of the Indian family. 

Last, the parents argue that the termination is invalid because the district court 

didn't have any qualified expert testimony at the adjudication stage of this case, the step 

at which the court determined that the children were in need of care and placed into 

temporary State custody. But the adjudication and the termination are separate 

proceedings, and an error in the former doesn't necessarily impact the validity of the 

latter. In this case, where those proceedings were overseen by different judges and where 

the termination hearing included the previously lacking qualified expert testimony, the 

error in the adjudication hearing was harmless. 

We affirm the district court's judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

R.B. is the natural mother of L.M.B., A.B., and L.B.; D.B. is the adoptive father of 

L.M.B. and the natural father of A.B. and L.B. At the time of trial, all three children were

minors, but L.M.B. turned 18 in May of this year, soon after we heard oral argument in 

this appeal. 

The children are all members of the Citizen Potawatomi Nation. The tribe was 

notified about and participated in this case almost from the start: the initial petition was 

filed on November 12, 2014, the tribe was notified on November 18, and the tribe filed 

its first appearance on December 18. Because the parents challenge the sufficiency of the 

evidence supporting the termination of their parental rights, we describe the history of 

this case in detail. 
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According to a police report, one night in November 2014, a visiting family 

member saw the parents injecting drugs in their basement while the children were 

upstairs. This family member also alleged that while he was high, Father had sexually 

assaulted her. Because of these events, the family member took the children to their 

maternal grandmother's home, about 1 block away, and the grandmother called the 

police. After the police executed a search warrant and found drug paraphernalia 

associated with injecting and smoking methamphetamine, the State charged both parents

with possession of drug paraphernalia; Father was also charged with sexual battery. 

As a result of this incident, the children were removed from their parents' home; 

L.M.B. went to her maternal aunt's home, and A.B. and L.B. went to their grandmother's

home. According to the grandmother, the aunt, and social workers who worked on this 

case (all were witnesses at the termination hearing), L.M.B. was the primary caretaker for 

her younger siblings and had been since she was 9 years old. She did laundry, made sure 

they took baths, woke them up for school and made sure they were at school on time, and 

made them dinner. The aunt testified that she took L.M.B. while the younger siblings 

stayed with the grandmother in part to give L.M.B. a break from these caretaking 

responsibilities. 

According to the grandmother, the children's living situation had been slowly 

deteriorating for some time; the children had been coming over to her house more 

frequently to borrow things their parents weren't providing, like food, toilet paper, and 

soap. The aunt testified that when L.M.B. first came to live with her, most of her clothing 

was several sizes too small; the same was true for L.B. and A.B. The grandmother said

that Father would get angry if the house wasn't clean, but it was entirely the children's 

responsibility to keep the house clean; the parents didn't help. The grandmother testified 

that sometimes Father would get upset and paranoid and remove all the batteries from 

electronic items and unplug everything in the house, including alarm clocks, making it 

impossible for L.M.B. to get her siblings and herself to school on time. L.M.B. told a 
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social worker that her father would sometimes get angry and take nearly everything out 

of the house, including the children's belongings, and take them to the dump; her 

grandmother confirmed this story. 

L.M.B. also told a social worker and family members that her father had once 

slammed her into a wall and her mother had once slapped her. Additionally, L.M.B. said 

that on at least one occasion her parents simply left for several days without telling the 

children that they were leaving, where they were going, or how long they'd be gone. L.B. 

and A.B. told their grandmother that their father never helped them with homework; he 

just yelled at them to do it. The grandmother stated that the children didn't have many 

friends because they weren't allowed to have them over at their parents' house. 

L.M.B. reported that while living with her parents, she had been depressed and 

had self-harming thoughts. Her grandmother said that L.M.B. had been cutting herself, 

and her aunt reported that L.M.B. was very depressed when she first came to live with 

her. L.M.B. also reported to a social worker that she felt her father was nicer to L.B. and 

A.B. because they were his biological children, and she wasn't. And later, in February 

2015 when her parents didn't show up for a temporary-custody hearing, L.M.B. was 

distraught and entertained suicidal thoughts because she felt like her parents didn't care 

about her or her siblings. L.M.B. spent a week in a psychiatric facility and then began 

going to therapy regularly (she continued going for about a year). 

The district court had ordered that the parents, if they had clean drug tests, could 

visit their children; Saint Francis Community Services would supervise those visits and 

create and monitor a family case plan. Initially, the goal had been to reunite the family. 

In December 2014, the parents visited their children once. According to a 

December 2014 St. Francis report, the agency had tried to call the parents on December 

11, but both phone numbers had been disconnected. The agency eventually contacted the 
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parents on December 15 and scheduled a visit for the next day. St. Francis reported that 

the visit went well; the parents brought Christmas gifts and the family played a game 

together. But on December 30, when the next visit was scheduled to take place, the 

parents called the agency and reported that they were having financial problems, and the 

agency canceled the visit because the parents hadn't taken the required drug test. The 

parents also canceled the next two visits, which had been scheduled for early January 

2015. 

Next, the parents failed to appear at the temporary-custody hearing on February 

20, 2015. According to the parents' testimony at the termination hearing, during this time 

Mother and Father were moving a lot because Father had lost his job in the oil industry. 

They said that they were relying on friends for support. Mother also said that they were 

using drugs "a lot" during this time, whenever they had money for it. Father characterized 

his drug use during this time as "minor" and "experimental." At some point during late 

February or early March, they told St. Francis that they were having extreme financial 

difficulties and were living in their car. At some point they also lost the car. 

On March 10, the parents attempted to obtain services and help from the 

Potawatomi tribe in Oklahoma, and the caseworker who met with the parents described 

the meeting in a letter to the Kiowa County attorney. The caseworker told the parents that 

they would have to pass a drug test before the tribe could help them. Father had described 

"a conspiracy against them in Kansas" and became so angry that the caseworker was

uncomfortable and asked the parents to sit in the waiting room. Father testified that he 

didn't know why the caseworker had gotten upset, saying that he supposed he had 

intimidated her because he was standing up. The parents refused to take drug tests and 

left. 

Also on March 10, St. Francis held a meeting to develop and expand upon the 

family's case plan; the parents had left a phone number with St. Francis so that they could 
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participate in the meeting, but when the agency called, that number had been 

disconnected. The case plan required the parents to maintain contact with St. Francis and 

complete drug-and-alcohol evaluations, mental-health evaluations, and parenting classes. 

The plan also required the parents to obtain and maintain stable housing, comply with 

orders in their criminal cases, and get jobs. 

Three days later, on March 13, the parents approached L.B., in violation of the 

court's protective order, while he was at a coffee shop in Haviland with his cousin. The 

cousin told police that when she told Father that he couldn't talk to L.B., Father became 

angry. Father grabbed L.B., hugged him, and said he was going to get L.B. back. As the 

cousin was trying to keep L.B. away from Father, Father was swearing loudly, and he 

threw her phone on the ground, breaking it. As the cousin and L.B. were getting in the car 

to get away from Father, Mother approached, gave L.B. a hug, and told him that they 

would try to get him back. The owner of the coffee shop confirmed the details of this 

interaction. 

As a result of this event, the State charged Father with criminal intimidation of a 

witness, violating a protective order, criminal damage to property, and assault. On March 

30, Father appeared in court for the earlier possession and sexual-battery charges. 

Because he refused to take a drug test, the court revoked his bond, and he was in jail from 

March 30 until May 5. On March 31, in jail, Father tested positive for methamphetamine. 

On April 22, Father pled no contest to possession of drug paraphernalia in exchange for 

the State dismissing the sexual-battery charge; he was sentenced to 1 year of probation. 

Then, on May 5, Father pled no contest to criminal intimidation and guilty to criminal 

damage, was found guilty of both offenses, and was placed on probation for 1 year. 

The State also charged Mother with violating a protective order based on the 

coffee-shop incident involving L.B. On April 15, Mother went to jail after she violated 

the protective order again by driving to L.M.B.'s school and shouting at her in the school 
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parking lot. On May 5, Mother pled guilty to one count of violating a protective order in 

exchange for the State dismissing her earlier charge for possession of drug paraphernalia. 

She was placed on probation for 1 year. 

The district court held a status hearing on May 18; this time, the parents attended. 

St. Francis noted that there had been no parental visits since that first visit in December 

2014, in part because Father had been in jail from March 30 to May 5 and Mother had 

been in jail from April 15 to May 5. St. Francis said that as of May 8, both parents were 

out of jail but hadn't been in touch with the agency. The aunt had reported to St. Francis 

that she believed the parents were currently homeless and that their car had been 

repossessed. St. Francis also reported on L.M.B.'s hospitalization following her suicidal 

thoughts and her continuing therapy, noting that her aunt said her mood had improved. 

The children were all doing well in school and were beginning to get involved in 

extracurricular activities such as art and baseball. The district court ordered the parents to 

get drug and alcohol evaluations, comply with any orders entered in their criminal cases, 

and work the case plan. It also ordered a court-appointed special advocate, or CASA 

volunteer, for the children. 

Mother tested positive for methamphetamine on June 12. Father wasn't tested on 

that date because he said he was working and couldn't get away. Both parents had clean 

drug tests on June 25. 

A month later, St. Francis reported that the parents were living at a motel in Dodge 

City, looking for a home to rent and a car to buy. The parents had told St. Francis that 

they had completed mental-health intakes but didn't provide documentation. Mother said 

she had been working but wasn't currently. Father said he had been working for a

concrete company and was now working for a trucking company, but he provided no 

proof. St. Francis noted that contacting the parents was difficult at times because 
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Mother's phone was often out of minutes, making it difficult to schedule drug tests and 

visitation. 

The children told St. Francis that they would like visitation with their mother but 

not with their father. St. Francis also noted that L.M.B. had obtained her driver's permit, 

L.B. was playing baseball and learning to cook, and A.B. was learning to sew. The 

CASA volunteer reported the same information regarding the parents' current work and 

living situation. The CASA volunteer said that the children were doing well in their 

placements and that she did not have a working phone number for the parents. 

On July 20, the district court held another hearing, and the parents did not appear. 

At this hearing, the district court changed the case goal from reintegration to termination 

of parental rights because the parents had failed to work the case plan, had failed to 

follow the terms of their probation, and had failed drug tests. 

The parents were both arrested in late July for violating their probation by failing 

to report and make court payments, among other things. Mother served 30 days in jail 

and then was placed back on probation; Father served 6 months in jail and wasn't released 

until the end of January 2016. 

The State filed a motion to terminate parental rights on August 21, 2015. Mother 

testified at the termination hearing that when she learned about the termination motion, 

she realized the error of her ways (at the time, she was in jail for violating the protective 

order). Father, who was also in jail, got so angry when he learned of the termination 

motion that he cut up a t-shirt. (He later pled guilty to criminal damage for this.)

The termination hearing was initially set for October 19, but when the State 

realized that it needed a qualified expert witness under the Indian Child Welfare Act, the 

hearing was rescheduled. 
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The district court held a status hearing on November 9, and both parents appeared. 

Mother had tested positive for benzodiazepine, though she claimed she had a prescription 

for it. St. Francis reported that Mother was living with a friend in Pratt and had left 

Father, who was still in jail. (The parents' separation would not last.) Mother had 

completed a drug-and-alcohol evaluation on October 15, and the evaluation

recommended that she attend drug-and-alcohol-education programs and attend recovery 

meetings. She was attending a recovery program called Celebrate Recovery and working 

at Best Western, though she hadn't yet provided St. Francis proof of either employment 

or drug treatment. St. Francis noted that it was still difficult to contact Mother at times. 

St. Francis also noted that L.M.B. was participating in a scholars' bowl at school, L.B. 

liked cooking breakfast, and A.B. was playing volleyball and in the drama club. 

In March 2016, St. Francis noted that there still hadn't been any parental visits, in 

part because L.B. and A.B. had begun exhibiting some negative behaviors: L.B. had been 

wetting the bed and making weapons to protect himself from Father, and A.B. was 

having bouts of anger. Both had begun attending therapy twice a month. St. Francis also 

noted that L.B. was playing basketball and A.B. was joining track. Mother wrote each 

child a letter; none wrote back. 

The parents reported that they were living with a friend in Pratt. Mother had been 

fired from Best Western but had gotten a job at Larned State Hospital. She said she had 

been attending Celebrate Recovery regularly and therapy once a month. She had 

completed a parenting class in December 2015. Father had been released from jail at the 

end of January and was working for a trucking company; he provided a pay stub. Father 

said he had plans to get a mental-health intake and a drug-and-alcohol assessment and 

would soon begin parenting classes. 
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The termination hearing took place on May 2, 2016. Various social workers, the 

grandmother, and the aunt all testified as previously described about the children's living 

situation with their parents and the harm it had caused. They each stated that the children 

shouldn't be returned to their parents' home. 

The CASA volunteer testified and filed a report for the termination hearing. She 

had visited with the children about 10 times, and she reported that the children were 

doing well in their placements and were more confident, less anxious, and happier; their 

grades had improved; and they were all involved in extracurricular activities. The CASA 

volunteer concluded that Father "does not seem to understand the trauma the children 

have gone through," noting that he had said that the children had exaggerated what their 

home was like. She testified that both parents felt that they hadn't been treated fairly in 

this process. She recommended terminating parental rights because although both parents 

had shown recent signs of working the case plan, they hadn't taken any steps for the first 

year that their children were out of their home, and because the children had repeatedly 

stated that they didn't want to have contact with their parents. She testified that even 

though the parents had made some recent progress, it was basically too late to make a 

difference. 

The district court also heard testimony from Dr. Eric Anderson. The parents 

argued that he wasn't a qualified expert witness under the Indian Child Welfare Act, but 

the district court overruled their objections. Dr. Anderson is a member of the same tribe 

as the children (the Citizen Potawatomi Nation), has a PhD in Native American history,

and is chair and professor of indigenous American Indian studies at Haskell Indian 

Nations University. He has studied the Indian Child Welfare Act and teaches about that 

Act in his university classes. He testified that he did not have experience in the direct 

delivery of child and family services to Indian children and hadn't testified in a 

termination case before. 
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Dr. Anderson said that the tribe had been fully involved in this case and that the 

tribe's choice not to exercise jurisdiction suggested that the tribe approved of the 

proceedings. He also approved of the children's current placements because the tribe's 

cultural practices privilege the maternal family line, and the children had been placed 

with close maternal family members. He said that it would be the tribe's viewpoint that 

having maternal relatives raise the children was essentially the same as having the parents 

raise the children. Dr. Anderson said that the parents' conduct was likely to result in 

serious physical or emotional harm to the children, that the parents' late attempts to 

comply with the case plan were too little, too late, and that it didn't appear the parents 

could be persuaded to change their conduct. 

None of the children testified, but the district court did consider a letter from

L.M.B. She asked the court to terminate her parents' rights. The letter confirmed that 

L.M.B. had been the parent to her younger siblings and that her parents had failed to 

provide necessary items like clean clothing. It also detailed her depression and her 

parents' emotional abuse. 

Both parents testified at the termination hearing and focused on the steps they had 

taken toward completing tasks in the case plan.

Mother had completed a mental-health assessment in April 2015, drug and alcohol 

evaluations in October and November 2015, and a parenting class in December 2015. On 

cross-examination, it became clear that the April 2015 assessment wasn't of much use 

because it included obviously untrue responses about drug use.

Father said he had completed a mental-health evaluation and a drug-and-alcohol 

assessment in March 2016 and a parenting class in April 2016. But the drug-and-alcohol 

assessment was based on dishonest information Father provided, and the mental-health 
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evaluation was actually just a letter stating that Father did the evaluation—it didn't 

include the results of the evaluation.

The parents also submitted a lease agreement and a utility bill showing that they 

were renting a two-bedroom house as of April 1, 2016. Mother testified that she currently 

worked at Larned State Hospital, and she submitted pay stubs from that job going back to

January 2016. Father submitted pay stubs showing that he began working at D & R 

Trucking in February 2016 and testified that he was still working there. But Father also 

said that he hadn't made any child support payments despite having gotten a stable job. 

Regarding drug use, Mother said she had been clean for 9 or 10 months, and she 

had begun regularly attending Celebrate Recovery when she got out of jail at the end of 

August 2015. Father testified that he had also been attending Celebrate Recovery since 

his release from jail at the end of January 2016. But both parents made a variety of 

inconsistent statements about their drug use. 

Father characterized his methamphetamine use as "minor" and "experimental," 

saying he had used about once a month. When asked if he used methamphetamine 

"regularly," he said that he didn't know what qualified as "regular." But Mother had

testified that she and Father had both used methamphetamine several times a month,

whenever they had money for it. Father also admitted to having refused at least three drug 

tests while this case was ongoing. And he admitted that he had falsely claimed in his 

April 2016 drug-and-alcohol evaluation that he hadn't used drugs since June 2014, that he 

had misreported his alcohol use, and that he should have answered "yes" to the question 

about drug use having negatively impacted his relationships. Father also claimed that he 

had never injected methamphetamine with needles, despite his conviction for possession 

of drug paraphernalia based in part on needles found in his basement in November 2014. 

Ultimately, Father agreed that it would be a fair statement to say that he had a history of 

drug and alcohol abuse, based on drug-related convictions in 1998, 1994, and 1992. 
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Mother insisted that she had only used methamphetamine once or twice before her 

children were removed in November 2014. She said that she hadn't been using a needle to 

inject methamphetamine the night before her children were taken away. She did admit 

that after her children had been taken away, she had used drugs more often, 

"[s]poradically, if we had money." Although Mother testified that she took a first step

toward following the case plan in April 2015 by completing a mental-health intake, she 

didn't report any substance-abuse problems in this intake, causing the clinician to note: 

"Very difficult to determine how honest [Mother] was in describing her conditions, 

considering she is being charged with a drug related offense." One of her assessments 

noted that she reported using methamphetamine as a way to feel closer to her husband. 

Mother also testified that she was currently taking, by prescription, Lexapro for 

depression, lorazepam for anxiety, hydrocodone for pain, and Ambien for help sleeping. 

She said she had taken pain medication in the past, as well, and her mother (the children's 

grandmother) testified that Mother had had problems with abusing pain medication in the 

past. 

Because the hearing took longer than expected (finishing after 6 o'clock in the 

evening), the court heard closing argument from the parties about 3 weeks later, on May 

23, 2016. After hearing argument, the court announced its factual findings and, based on 

those findings, terminated Mother's and Father's parental rights. 

Both parents have appealed to our court. 
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ANALYSIS

I. The District Court Correctly Determined, Beyond a Reasonable Doubt and Supported 

by Qualified Expert Testimony, That if L.M.B., A.B., and L.B. Remained in Their Parents' 

Custody, Serious Emotional or Physical Damage Would Be Likely to Result.

Mother argues that the evidence wasn't sufficient for the district court to conclude 

beyond a reasonable doubt that the children would be likely to suffer serious physical or 

emotional damage if they remained in their parents' custody. Both parents argue that the

State's expert witness wasn't qualified under the Indian Child Welfare Act. 

Generally, a Kansas court can terminate parental rights if it "finds by clear and 

convincing evidence that the parent is unfit by reason of conduct or condition which

renders the parent unable to care properly for the child and the conduct or condition is 

unlikely to change in the foreseeable future." K.S.A. 2016 Supp. 38-2269(a). But when 

the child is an Indian child, the higher standards in the federal Indian Child Welfare Act

also apply, requiring proof beyond a reasonable doubt and supported by qualified expert 

testimony that continued parental custody would likely result in serious emotional or 

physical damage to the child. 25 U.S.C.A. § 1912(f) (2012); In re A.P., 25 Kan. App. 2d 

268, 277, 961 P.2d 706 (1998). Compare In re B.D.Y., 286 Kan. 686, 705, 187 P.3d 594 

(2008) (requiring clear-and-convincing evidence in cases not involving an Indian child). 

We have generally applied both the state and federal standards in termination cases

involving an Indian child. In re A.P., 25 Kan. App. 2d at 277-78; In re S.M.P., Jr., No. 

108,209, 2012 WL 6734666, at *3 (Kan. App. 2012) (unpublished opinion). In this 

appeal, though, the parents challenge the sufficiency of the evidence only under the 

federal standard, so we will focus on it. 

Since this appeal comes after the factfinder (here, the trial court) has ruled in favor 

of the State, we must take the evidence in the light most favorable to the State. So the 
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question we ask is whether, when viewing the evidence in that light, we are convinced 

that a rational factfinder could have found, beyond a reasonable doubt, that continued 

parental custody would have been likely to result in serious emotional or physical harm to 

the children. A.P., 25 Kan. App. 2d at 279; In re S.M.P., Jr., 2012 WL 6734666, at *3;

see B.D.-Y., 286 Kan. at 705. When applying this standard, we do not weigh conflicting 

evidence, pass on the credibility of witnesses, or redetermine questions of fact. See B.D.-

Y., 286 Kan. at 705. 

Mother generally challenges the sufficiency of the evidence and claims that the 

district court didn't sufficiently consider the parents' recent efforts to improve their lives 

and comply with their case plan. But the district court heard from Mother and Father 

about their recent efforts: they had recently signed a lease, both were employed, both 

were attending Celebrate Recovery, both had completed parenting classes, and both had 

obtained the recommended drug and mental-health assessments. However, they didn't 

complete their case plans until April 2016, a year and a half after their children were 

initially removed from their home. Mother arguably did her first task a year earlier, when 

she obtained a drug-and-alcohol assessment in April 2015, but that assessment was 

shown at trial not to have been useful, having been based on false information supplied 

by Mother. She didn't fully commit to following through on the case plan until the end of 

August 2015, after spending a month in jail and after the State had filed its motion for 

termination of parental rights. 

Father didn't begin following the case plan until the end of January 2016, when he 

was released from prison. And Father arguably hadn't yet completed his initial case-plan 

tasks; while he provided a letter showing that he obtained a mental-health assessment, he 

didn't provide the assessment itself. 

The district court noted that both Mother and Father continued to blame 

St. Francis and other people for their problems instead of taking full responsibility. The 
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district court also specifically noted that Mother and Father had problems with honesty, 

while it found almost every other witness credible. So, weighing the parents' late

remedial efforts against their year-long delay and dishonesty, plus the evidence of neglect 

and abuse before the children were removed, evidence of the children's mental health,

and the parents' history of drug abuse, the district court terminated parental rights. Even if 

we thought that the balance should have come out differently, we are not in a position to

reweigh the evidence or second-guess the court's credibility conclusions. Simply put, 

considering all of the facts in the light most favorable to the State, the district court could 

reasonably conclude that if the children continued in their parents' custody, serious 

emotional or physical harm would be likely to result. See A.P., 25 Kan. App. 2d at 279.

In addition to imposing the beyond-a-reasonable-doubt standard, the Indian Child 

Welfare Act also requires the testimony of a qualified expert witness to support the 

conclusion that continued parental custody would be likely to result in serious emotional 

or physical harm to the children. 25 U.S.C.A. § 1912(f). Mother and Father make 

different arguments about the expert testimony; we begin with Father's argument that Dr. 

Anderson wasn't a qualified expert witness. 

We generally review the qualification of witnesses as experts for an abuse of 

discretion. In re M.F., 290 Kan. 142, 150, 225 P.3d 1177 (2010); In re M.K., No. 

113,961, 2015 WL 9459829, at *6 (Kan. App. 2015) (unpublished opinion). But to 

properly exercise that discretion, the district court must apply the correct legal standard 

for who qualifies as an expert witness; we review the question of which legal standard 

applies independently and won't defer to the district court's conclusion. M.F., 290 Kan. at 

150. 

The Indian Child Welfare Act doesn't define "qualified expert witness," so we 

must turn to other sources when interpreting what that means. M.F., 290 Kan. at 151. The 

Act's legislative history doesn't provide any guidance, but the Bureau of Indian Affairs 
19

has published guidelines to assist state courts in applying the Act—the original guidelines 

were published in 1979, and an updated version was published in February 2015. 290 

Kan. at 151; see 44 Fed. Reg. 67,584 (1979); 80 Fed. Reg. 10,146 (2015). Kansas and 

other state courts routinely rely on these guidelines in cases involving the Act. See M.F.,

290 Kan. at 151-52 (citing cases). 

The district court didn't specify which version of the guidelines it relied on when it 

found that Dr. Anderson was a qualified expert witness. While the changes from the 1979 

to the 2015 version are arguably minor, we note that the district court should have been 

following the 2015 guidelines, which state, "Effective [February 25, 2015], these 

guidelines supersede and replace the guidelines published in 1979." 80 Fed. Reg. 10,146, 

10,147 (2015). Since the termination hearing took place in May 2016, the new guidelines 

had taken effect.

Section D.4 of the guidelines cover who may serve as a qualified expert witness. 

The first sentence of that section provides the general rule: "A qualified expert witness 

should have specific knowledge of the Indian tribe's culture and customs." 80 Fed. Reg. 

10,146, 10,157 (2015). The guidelines then offer four types of people who, based 

primarily on their knowledge of Indian tribal customs, are "presumed to meet the 

requirements for a qualified expert witness": 

"(1) A member of the Indian child's tribe who is recognized by the tribal 

community as knowledgeable in tribal customs as they pertain to family organization and 

childrearing practices.

"(2) A member of another tribe who is recognized to be a qualified expert 

witness by the Indian child's tribe based on their knowledge of the delivery of child and 

family services to Indians and the Indian child's tribe.

"(3) A layperson who is recognized by the Indian child's tribe as having 

substantial experience in the delivery of child and family services to Indians, and 
20

knowledge of prevailing social and cultural standards and childrearing practices within 

the Indian child's tribe.

"(4) A professional person having substantial education and experience in the 

area of his or her specialty who can demonstrate knowledge of the prevailing social and 

cultural standards and childrearing practices within the Indian child's tribe." 80 Fed. Reg. 

10,146, 10,157 (2015). 

The guidelines say that these four criteria under which a person is "presumed" to 

be a qualified expert are listed "in descending order." That's a bit confusing since meeting 

any of the criteria makes a person presumptively qualified—and a person could 

apparently qualify even if none of the presumptions applied but the court found on some 

other basis that the person had sufficient knowledge of the tribe's culture and customs. 

After all, these four subparagraphs are just situations in which qualification is presumed. 

Comments to the guidelines indicate that the order of preference was intended to "ensure 

that the expert witness with the most knowledge of the Indian child's tribe is given 

priority." 80 Fed. Reg. 10,146, 10,149 (2015).

We need not dwell on the effect of the ordering of the subparagraphs because Dr. 

Anderson falls into the first—and most preferred—category: a member of the Indian 

child's tribe who is "recognized by the tribal community as knowledgeable in tribal 

customs as they pertain to family organization and childrearing practices." See 80 Fed. 

Reg. 10,146, 10,157 (2015); see also 44 Fed. Reg. at 67,593 (identical provision). He is a 

member of the Citizen Potawatomi Nation. Along with growing up in this tribe, he has a 

PhD in Native American history, is chair and professor of indigenous American Indian 

studies at Haskell Indian Nations University, and has studied and taught classes on the 

Indian Child Welfare Act. 

Father argues that Dr. Anderson isn't qualified because he has no experience with 

child-in-need-of-care proceedings or with the direct delivery of child and family services. 

This lack of experience would be a problem if Dr. Anderson were trying to qualify as an 
21

expert witness under subsections (2) or (3), both of which require knowledge of or 

experience in the delivery of child and family services to Indian families. But Dr. 

Anderson doesn't need to qualify under subsections (2) or (3)—he is already presumed to 

be a qualified expert witness under subsection (1), so his lack of knowledge about the 

delivery of child and family services isn't disqualifying. 

Father claims that the guidelines require an expert to have basic social-work 

experience, but that simply isn't the case: subsection (1) says nothing about social-work 

experience. It is true that having social-work experience isn't sufficient to qualify as an 

expert under the Indian Child Welfare Act—some other expertise related to Indian 

culture is needed—but that doesn't mean that being a social worker is necessary. M.F., 

290 Kan. 155; see 80 Fed. Reg. 10,146, 10,157 (2015) (discussing expert subsections [3] 

and [4]). The guidelines focus on the witness' specific knowledge of the Indian tribe's 

culture and customs, and as Father concedes in his brief on appeal, "Dr. Anderson has 

extensive knowledge of the customs and heritage of the Citizen Band Pottawatomie 

tribe." Dr. Anderson was presumed under the guidelines to be a qualified expert witness 

under the Indian Child Welfare Act. While it's theoretically possible that a party could 

show at trial that a witness who met one of the presumption criteria nevertheless wasn't a 

qualified expert witness, Father has not shown any abuse of discretion in the district 

court's decision to accept the presumption in this case.

Mother makes a different argument: she claims that Dr. Anderson wasn't qualified 

as an expert witness because he didn't know anything about the parents' current living 

conditions. Expert testimony in an Indian-child case must support the district court's 

conclusion that continued parental custody is likely to result in serious emotional or 

physical harm to the children. A.P., 25 Kan. App. 2d at 278. And the Bureau of Indian 

Affairs guidelines provide that there must be "a causal relationship between the existence 

of particular conditions in the home that are likely to result in serious emotional or 

physical damage" to the children. 80 Fed. Reg. 10,146, 10,156 (2015). And "the existence 
22

of particular conditions in the home" does include the parents' current living conditions, 

not just past conditions. His testimony came before the parents took the stand, so he 

didn't get to hear Mother's or Father's personal versions of the improvements they had 

made, but he did hear from other witnesses about those improvements. So Dr. Anderson 

knew about the parents' struggles, including drug use, homelessness, jail sentences, and 

failure to remain in touch with St. Francis, but he also knew that in the months leading up 

to the termination hearing, the parents had made some positive changes in their lives. 

Nonetheless, Dr. Anderson said that "within tribal custom, to a large extent, the past 

behaviors speak for [themselves]," and he testified that he believed the parents' conduct 

was likely to result in serious physical or emotional harm to the children, that the parents' 

late attempts to comply with the case plan were too little, too late, and that it didn't appear 

the parents could be persuaded to change their conduct. So Dr. Anderson's opinion did

take into account the parents' current living situation. Furthermore, while the district

court's ultimate conclusion terminating parental rights must be supported by expert 

testimony, it can also be based on other evidence, so even if Dr. Anderson's testimony 

didn't sufficiently account for the parents' current living situation, the district court could 

still consider the parents' current conditions on its own. And it did so, specifically finding 

that the parents' efforts were too little and too late and that neither parent was very far 

along in their drug-addiction recovery. 

II. The District Court's Finding That the State Used "Active Efforts" to Prevent the 

Breakup of the Indian Family Is Supported by Sufficient Evidence.

The parents next challenge the district court's finding that the State complied with 

a provision of the Indian Child Welfare Act that requires the State to use "active efforts" 

to prevent the breakup of the Indian family. The Act requires that when seeking 

termination of parental rights, the State must prove, by clear and convincing evidence,

that it used active efforts to prevent the breakup of the Indian family: "[the State] shall 

satisfy the court that active efforts have been made to provide remedial services and 
23

rehabilitative programs designed to prevent the breakup of the Indian family and that 

these efforts have proved unsuccessful." 25 U.S.C. § 1912(d); A.P., 25 Kan. App. 2d 268, 

Syl. ¶ 9 (providing the clear-and-convincing-evidence burden of proof on this issue). 

"Clear and convincing evidence" is evidence that proves something is highly probable. 

B.D.-Y., 286 Kan. 686, Syl. ¶ 3. (We recognize that some states require proof beyond a 

reasonable doubt on the active-efforts issue, but most, like Kansas, require clear and 

convincing evidence. See Yvonne L. v. Ariz. Dept. of Economic Security, 227 Ariz. 415, 

420-21, 258 P.3d 233 [Ariz. App. 2011]. Appellants in this case have not suggested that 

the reasonable-doubt standard applies to the active-efforts issue.)

We note that all of the parties in this case describe the standard of review as 

whether substantial evidence supports the active-efforts finding—but this standard, from 

a 1998 decision of this court, isn't good law anymore. See A.P., 25 Kan. App. 2d 268, 

Syl. ¶ 10. In 2008, the Kansas Supreme Court modified how we review district court 

findings that should be based on clear and convincing evidence. B.D.-Y., 286 Kan. 686, 

Syl. ¶ 4. So we apply that newer standard, asking whether, after reviewing of all the 

evidence in the light most favorable to the State, we are convinced that a rational 

factfinder could have found the determination—that the State used active efforts—to be 

highly probable. B.D.-Y., 286 Kan. 686, Syl. ¶ 4. 

Kansas caselaw provides little guidance as to what constitutes active efforts "to 

provide remedial services and rehabilitative programs designed to prevent the breakup of 

the Indian family." 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; 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. 80 Fed. Reg. 10,146, 10,147 (2015); State v. Yodell, 367 P.3d 

881, 885 (N.M. Ct. App. 2015). Compare K.S.A. 2016 Supp. 38-2269(b)(7) (providing 
24

that the State must show failure of reasonable efforts to rehabilitate the family at 

termination hearing). Next, the guidelines explain that the purpose of the active-efforts 

requirement is to "maintain and reunite an Indian child with his or her family or tribal 

community." 80 Fed. Reg. 10,146, 10,150 (2015). Then, the guidelines list 15 examples 

of active efforts:

"(1) Engaging the Indian child, the Indian child's parents, the Indian child's 

extended family members, and the Indian child's custodian(s);

"(2) Taking steps necessary to keep siblings together;

"(3) Identifying appropriate services and helping the parents to overcome 

barriers, including actively assisting the parents in obtaining such services;

"(4) Identifying, notifying, and inviting representatives of the Indian child's tribe 

to participate;

"(5) Conducting or causing to be conducted a diligent search for the Indian 

child's extended family members for assistance and possible placement;

"(6) Taking into account the Indian child's tribe's prevailing social and cultural 

conditions and way of life, and requesting the assistance of representatives designated by 

the Indian child's tribe with substantial knowledge of the prevailing social and cultural 

standards;

"(7) Offering and employing all available and culturally appropriate family 

preservation strategies;

"(8) Completing a comprehensive assessment of the circumstances of the Indian 

child's family, with a focus on safe reunification as the most desirable goal;

"(9) Notifying and consulting with extended family members of the Indian child 

to provide family structure and support for the Indian child, to assure cultural 

connections, and to serve as placement resources for the Indian child;

"(10) Making arrangements to provide family interaction in the most natural 

setting that can ensure the Indian child's safety during any necessary removal;

"(11) Identifying community resources including housing, financial, 

transportation, mental health, substance abuse, and peer support services and actively 

assisting the Indian child's parents or extended family in utilizing and accessing those 

resources;

"(12) Monitoring progress and participation in services;
25

"(13) Providing consideration of alternative ways of addressing the needs of the 

Indian child's parents and extended family, if services do not exist or if existing services 

are not available;

"(14) Supporting regular visits and trial home visits of the Indian child during 

any period of removal, consistent with the need to ensure the safety of the child; and

"(15) Providing post-reunification services and monitoring." 80 Fed. Reg. 

10,146, 10,150 (2015).

Of these 15 examples, only the last one isn't relevant to this case, since there was no 

reunification. The remaining 14 can be loosely grouped in two categories: (1) active

efforts to involve the children's tribe and extended family members to assure that the 

children's Indian culture is protected and respected and (2) active efforts to keep the 

family together and help the parents obtain necessary resources. 

First, it appears that the State made every effort to involve the children's tribe and 

extended family members and protect the children's Indian culture; indeed, neither parent 

takes issue with this part of the State's active efforts (in fact, they largely ignore it). The 

State involved the children's tribe; the tribe participated in the creation of the case plan 

and was fully involved throughout the case. Dr. Anderson testified that the tribe's 

decision not to exercise jurisdiction over this case suggested that it approved of the 

State's actions. The State didn't need to search for extended family members; the 

grandmother and aunt were involved from the start and remained involved throughout the 

case. In fact, the State made specific decisions to ensure that the children could remain 

with their family members rather than being placed in other foster homes. St. Francis met 

regularly with the children and their grandmother and aunt to review the case plan and 

discuss how the children were doing. The State respected the children's Indian cultural 

traditions by placing them with maternal relatives—according to Dr. Anderson's expert 

testimony, the cultural tradition of the Citizen Potawatomie Nation is matrilineal and 

views maternal relatives and parents as co-equal for raising children. The State kept the 

two younger children together and placed them with their grandmother. It did place 
26

L.M.B. separately, with her aunt, but it did so intentionally, to give L.M.B. a break from 

the parental duties she had assumed while the children were still living with their parents. 

St. Francis also attempted to facilitate parental visits, conditioned on clean drug tests for 

the parents, but the parents only showed up for one such visit. The agency also assisted 

the children by getting therapy for the children when needed. 

The parents' arguments center around the second category of "active efforts": They 

claim that the State merely created the case plan and then didn't help the parents complete 

it. Mother and Father argue from this that the State didn't use active efforts. St. Francis 

first created a case plan designed to reintegrate the family in December 2014 and 

elaborated on that plan in March 2015. 

With that claim in mind, let's review the State's efforts (through its contractor, 

St. Francis) related to the case plan. The plan required the parents to complete a parenting 

class and obtain a drug-and-alcohol assessment, among other things. St. Francis provided 

the parents with referrals where they could complete these case-plan tasks. Later, when 

the parents moved to a different town in Kansas, St. Francis provided information about 

similar services available there. 

The precise details of the help that St. Francis provided to the parents are hazy, in 

part, it seems, because St. Francis found it so difficult to even contact the parents, let 

alone provide them with additional help. The parents canceled three of four scheduled 

visits with their children in December 2014 and January 2015. The parents didn't appear 

at the adjudication hearing in February 2015 or at the case-plan meeting in March 2015. 

Also in March, the parents tried to obtain services from the tribe itself but left when the 

tribe said they would have to pass a drug test. As of May 2015, the parents were 

homeless and had lost their car. According to Mother's testimony, during this time both 

parents were using methamphetamine whenever they had any money. As late as midJune, about 7 months after the children were first removed, Mother tested positive for 
27

methamphetamine. After the parents had a negative drug test at the end of June 2015, St. 

Francis tried to contact the parents but couldn't reach them. Another failed contact took 

place on July 10, 2015; the parents had provided nonworking phone numbers. Then, both 

parents went to jail at the end of July, Mother for 1 month and Father for 6. Overall, the 

parents had three supervised visits with the children, in December 2014, May 2015, and 

July 2015. 

The parents make much of the testimony from a St. Francis caseworker that she

hadn't treated this case any differently from her other, non-Indian-child cases, claiming 

that her statement proves the State provided only the normal, "reasonable efforts," and 

not the heightened, "active efforts" required by the Indian Child Welfare Act. We are not 

persuaded. Despite the caseworker's testimony, St. Francis did many things that it doesn't 

do in the ordinary case, given the involvement of the Citizen Potawatomi Tribe.

Moreover, while it's probably true that St. Francis could have done more to help the 

parents and that such actions would count as "active efforts," it's simply not the case that 

"active efforts" means "absolutely every effort." See Yvonne L., 227 Ariz. at 423; Jimmie 

G. v. Dept. of Child Safety, 2017 WL 2374681, at *2 (Ariz. App. 2017) (unpublished 

opinion). And the parents' narrow focus on the ways that St. Francis failed to help them

(despite their routine unavailability) ignores the other ways that St. Francis was engaged 

in active efforts "to provide remedial services and rehabilitative programs designed to 

prevent the breakup of the Indian family," including involving the tribe and keeping the 

children with maternal family members in line with the cultural traditions of the tribe. 

See 25 U.S.C. § 1912(d). Finally, we return, as we must, to our standard of review. We 

must look at the evidence in the light most favorable to the State. From that vantage 

point, the district court could have found that it was highly probable that the State used 

active efforts to provide remedial services and rehabilitative programs designed to 

prevent the breakup of the Indian family. 
28

III. The District Court Did Not Err by Refusing to Dismiss the Case Because the 

Adjudication Hearing Didn't Include Testimony from a Qualified Expert.

The parents also argue that the district court violated the Indian Child Welfare Act 

when it adjudicated the children as children in need of care and placed them outside 

parental custody without qualified expert testimony. 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.

The Indian Child Welfare Act requires qualified expert testimony both in childcustody proceedings (here, the adjudication phase at which the children may be 

temporarily placed in State custody) and for the termination of parental rights. 25 U.S.C. 

§ 1912(e), (f). The parties agree that the district court violated 25 U.S.C. section 1912(e)

in February 2015 when it determined—without qualified expert testimony—that L.M.B., 

A.B., and L.B. were children in need of care and ordered that they remain out of their 

parents' custody. But the State argues (and the district court found) that this error was 

harmless because the district court did hear qualified expert testimony at the termination 

hearing, thereby complying with 25 U.S.C. section 1912(f). 

An error is harmless if it doesn't affect a party's substantial rights. K.S.A. 2016 

Supp. 60-261 ("At every stage of the proceeding, the court must disregard all errors and 

defects that do not affect any party's substantial rights."); State v. Ward, 292 Kan. 541, 

562, 256 P.3d 801 (2011). Generally, when applying the harmless-error rule, we must 

find that there is no reasonable probability that the error affected the outcome. 292 Kan. 

at 565. But if the error implicates a constitutional right, we must find beyond a reasonable 
29

doubt that the error didn't affect the outcome. 292 Kan. at 565. Here, the error is the 

failure to comply with a statutory requirement, not a constitutional one.

But the parents argue that violations of the Indian Child Welfare Act can never be 

harmless. And in one case—in which there was no expert testimony either, at the 

adjudication stage or at termination—the Kansas Supreme Court seemed to suggest that 

failure to follow the Indian Child Welfare Act couldn't be found to be harmless error. The 

statement came in the M.F. case, in which the case reached our Supreme Court on appeal 

from a termination of parental rights that had been ordered without any supporting expert 

testimony. The court first observed that the Act, under section 1914, allows a parent to 

file a petition to invalidate a custody or termination decision if certain of the Act's 

procedural requirements (including the expert-witness requirement) weren't followed. See 

25 U.S.C. § 1914 (2012). Section 1914 certainly emphasizes that importance of the Act's 

procedural requirements. So the M.F. 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). 

Our court has been unsure how to interpret this statement. What is clear is that the 

procedural requirements of the Indian Child Welfare Act are important and shouldn't be 

lightly discarded. See M.F., 290 Kan. at 157. Ultimately, we cannot ignore the context in 

which the M.F. court made its statement: there, the district court didn't have expert 

testimony at either the adjudication or the termination stage—a substantially more 

egregious error than the one in this case. And we also note that the M.F. court's actual 

holding wasn't the broad statement that harmless error doesn't apply to Indian-child cases; 

it was that the error in that particular case required reversal. 290 Kan. at 157.

Our court has applied a harmless-error analysis in published opinions involving 

the Indian Child Welfare Act (albeit in cases that predate M.F.). See, e.g., In re M.B., 39 

Kan. App. 2d 31, 40-41, 476 P.3d 977 (2008) ("[E]ven if the provisions of the ICWA are 
30

not initially followed, subsequent remedial action by the district court may bring a 

termination of parental rights case into compliance with the requirements of the Act."); In 

re S.M.H., 33 Kan. App. 2d 424, 441, 103 P.3d 976, rev. denied 279 Kan. 1006 (2005); In 

re H.A.M., 25 Kan. App. 2d 289, Syl. ¶ 2, 961 P.2d 716 (1998) (failure to comply with 

notice provision harmless because tribe ended up participating in the case); see also In re 

J.J.G., 32 Kan. App. 2d 448, 453, 83 P.3d 1264 (2004) (finding that literal compliance 

with the Act wasn't necessary because the tribe didn't challenge the termination and the 

termination nonetheless kept the child integrated with native heritage). After M.F., we've 

had conflicting statements in two unpublished opinions. Compare In re A.M., No. 

108,012, 2013 WL 518019, at *4 (Kan. App.) (unpublished opinion) (describing M.F. as 

"noting that the harmless error rule is applicable to errors in compliance with the Indian 

Child Welfare Act in termination of parental rights cases"), rev. denied 297 Kan. 1245 

(2013), with In re A.O., No. 108,126, 2012 WL 6217351, at *1 (Kan. App. 2012) 

(unpublished opinion) (describing M.F. as "holding that a procedural violation of the 

ICWA cannot be harmless in light of the clear language of 25 U.S.C. § 1914 [2006]").

Ultimately, we conclude that the harmless-error rule does apply. 

First, other states have applied the rule. See In re Enrique P., 14 Neb. App. 453, 

709 N.W.2d 676 (2006) (failure to provide qualified expert witness was harmless when 

psychological evaluation and case-workers' court reports clearly and convincingly 

showed that parental custody would result in serious damage to child); In re Tamika R., 

973 A.2d 547, 553 (R. I. 2009). And the burden of proof that was required at termination

(beyond a reasonable doubt) was higher than what was needed at adjudication (clear and 

convincing evidence), further convincing us that the qualified expert testimony at the 

termination hearing effectively cured any possible harm that resulted from not having 

such testimony at the adjudication stage. 

We affirm the district court's judgment.