1

NOT DESIGNATED FOR PUBLICATION

Nos. 124,050

 124,051

 124,052

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of S.G., N.G., and M.G.,

Minor Children.

MEMORANDUM OPINION

Appeal from Grant District Court; LINDA P. GILMORE, district judge. Opinion filed May 27, 

2022. Affirmed.

Derek W. Miller, of Miller & French, LLC, of Liberal, for appellant.

Kelly Premer Chavez, county attorney, for appellee.

Before HILL, P.J., MALONE, J., and PATRICK D. MCANANY, S.J.

PER CURIAM: M.L.G. (Mother), the biological mother of S.R.G., S.G., N.G., and 

M.G. (collectively Children), appeals the district court's decision terminating her parental 

rights. Mother does not challenge the district court's findings that she is an unfit parent

and that termination of her parental rights is in the best interests of the Children. Instead, 

Mother argues only that the State did not give proper notice of the proceedings under the 

Indian Child Welfare Act (ICWA). After several hearings, the district court found that the 

State used due diligence to identify and provide notice to all the tribes of which there was 

reason to know the Children may have been a member or were eligible for membership.

Finding no error in the district court's decision that the State satisfied ICWA notice 

provisions, we affirm the district court's judgment terminating Mother's parental rights.
2

FACTUAL AND PROCEDURAL BACKGROUND

Given the legal question at issue, and the procedural posture of this case, the facts

of the child in need of care (CINC) cases are largely irrelevant and summarized only for 

context. On February 18, 2015, the Kansas Department for Children and Families (DCF) 

received a report of physical neglect of the Children. On March 27, 2015, the State filed 

CINC petitions. The district court placed the Children in protective custody with DCF 

and awarded Grandmother temporary custody.

On March 31, 2015, Mother signed an affidavit on Indian heritage, attesting that 

she was an enrolled member of a federally recognized Indian tribe or Alaska native 

village and that the Children may be associated with the Apache tribe. On April 16, 2015, 

the State sent notice to the Secretary of the Interior/Bureau of Indian Affairs (BIA) Area 

Director and the Chairperson of the Apache Tribe of Oklahoma. In response to the notice, 

the State received a letter from the Apache Tribe of Oklahoma, stating that the Children 

and family members were not in the enrollment records for the Apache Tribe of 

Oklahoma. The letter stated no further notice to them was necessary.

The district court adjudicated the Children as CINCs on July 30, 2015. Two days 

later, the local hospital pronounced S.R.G. dead. Based on the circumstances surrounding 

S.R.G.'s death, Mother was arrested on murder and child abuse charges. On April 20, 

2018, Mother pled no contest to voluntary manslaughter and child abuse. She was 

sentenced to 92 months' imprisonment.

Mother's parental rights were terminated on January 31, 2019, by a non-lawyer 

magistrate judge. Mother timely appealed to the district court. The district court found 

Mother presumptively unfit because she was convicted of voluntary manslaughter of one 

of her children and for other statutory reasons. But based on an objection by Mother, the 

district court expressed some concern whether the State complied with required ICWA
3

notice provisions. More specifically, the district court questioned whether notice to the 

Apache Tribe of Oklahoma sufficiently covered Mother's possible membership in a 

Texas Apache tribe. The district court conditioned the termination of parental rights order

upon the State's proper compliance with ICWA and remanded the case to the magistrate 

judge "for an on the record determination of whether the State provided correct [ICWA] 

notice with the required known content to the correct office."

The magistrate judge held an evidentiary hearing on November 4, 2019. Mother 

was not present but appeared through counsel. At the hearing, the State introduced: 

Mother's signed affidavits attesting to an Apache affiliation; a letter from the Apache 

Tribe of Oklahoma Indian Child Welfare Program denying such affiliation; a printout of 

the federal register of recognized Indian entities from the United States BIA purporting to 

show that the only federally recognized Apache tribe is in Oklahoma; a printout of tribes 

listed in the Southern Plains region showing that the only federally recognized Apache 

tribe is in Oklahoma in the Southern Plains region; and the ICWA notice filed on April 

16, 2015. The magistrate judge found that "the State met all the required content to the 

correct office" because notice went to the Southern Plains Anadarko Agency which 

covers Oklahoma, Texas, and Kansas. The magistrate judge found that "the ICWA 

requirements have been met in these matters for [S.G., N.G.] and [M.G.].

Mother again appealed the magistrate judge's decision to the district court. This 

time the district court found that the affidavits about Indian heritage did not meet the 

trustworthiness requirement of the business record exception to hearsay, noting the record 

reflected Mother was confused, and the court could not be convinced she knew what she 

was signing. Based on Mother's testimony at prior hearings about family members' 

possible Indian heritage, the district court reasoned that "this testimony should have 

provided far more information to the state for purposes of completing a proper ICWA 

notice than the affidavit's blank section under 'other pertinent information.'" The district 
4

court "again remanded to the magistrate judge to determine, after the State conducts due 

diligence and sends proper notice, if [the] [C]hildren are Indian children."

On June 19, 2020, upon remand, the State revised its previous notice. The revised 

notice was sent by certified mail to more than 20 entities: Anadarko Regional Director, 

Board of Indian Affairs (BIA) in Anadarko, Oklahoma, who is to receive notice for child 

custody proceedings in Kansas; Apache Tribe of Oklahoma, Apache, Oklahoma; Apache 

Tribe of Oklahoma, Anadarko, Oklahoma; Fort Sill Apache Tribe in Apache, Oklahoma, 

and also in Deming, New Mexico; Pawnee Agency in Pawnee, Oklahoma; Shawnee 

Office, BIA in Shawnee, Oklahoma; Horton Agency, BIA in Horton, Kansas; Concho 

Agency, BIA in El Reno, Oklahoma; Eastern Oklahoma Regional Office, BIA in 

Muskogee, Oklahoma; Southwest Region Regional Office, BIA, Albuquerque, New 

Mexico; Jicarilla Agency, Dulce, New Mexico; Mescalero Agency, BIA, in Mescalero, 

New Mexico; Western Region Regional Office, BIA in Phoenix, Arizona; San Carlos 

Agency, San Carlos, Arizona; San Carlos Apache Tribe, San Carlos, Arizona; Truxon 

Canon Agency, Valentine, Arizona; Yavapai-Apache Nation of Camp Verde, Arizona; 

Tonto Apache Tribe in Payson, Arizona; Fort Apache Agency, in Whiteriver, Arizona; 

White Mount Apache Tribe, Whiteriver, Arizona.

The State filed proof of mailing and the responses it received. All responses said 

the Children were not enrolled or eligible to be enrolled and that the notified tribes would 

not involve themselves in the court proceedings.

The magistrate judge held another evidentiary hearing on June 29, 2020, and

Mother, who was incarcerated, appeared by Zoom. The State presented evidence on its

compliance with the ICWA notice requirements and the responses it received. Mother 

testified at the hearing and, for the first time in the proceedings, expressed a belief that 

her maternal great grandparents were Sioux Native American in either North or South 

Dakota. But Grandmother testified that Mother was wrong about the family connection 
5

with the Sioux tribe. Grandmother testified that the family may have a connection with 

the Yaqui tribe, but she did not know whether the Yaqui tribe was a federally recognized 

tribe or where it was located. Following the testimony, the magistrate judge found that 

the State acted with due diligence to identify and notify all tribes of which there was 

reason to know the Children may be members or eligible for membership.

For a third time, Mother appealed the district magistrate's decision. In an order 

filed on February 10, 2021, the district court affirmed the magistrate's decision, finding 

the revised notice included the names, birthdates, and birth places of all the Children; the 

Children's parents' names and birthdates; the maternal grandmother's name and birthdate; 

the maternal grandfather's name and location of death—Beeville, Texas; the paternal 

grandmother's name and birthdate; Mother's paternal grandmother's married and maiden 

name, former address, place, and date of birth and place of death in Beeville, Texas; 

Mother's maternal grandmother's name, date, and place of birth; and Mother's maternal 

grandfather's name. The district court found that "[t]he testimony given in this matter by 

[Mother] and [Grandmother] in this case was often confusing, vague with little specifics 

and conflicting." The district court found that the Yaqui tribe mentioned by Grandmother

at the hearing is not on the list of recognized federal tribes. The district court also found:

"[B]ased on the information at the hearing on remand, this court will confirm the 

magistrate decision and find the State used due diligence to identify and provide notice to 

all the [t]ribes of which there is reason to know the child may be a member or is eligible 

for membership. All possible tribes known to the state were notified by certified mail 

with return receipt filed with the court. In addition, a proper notice was sent to the 

Anadarko Regional Director, Bureau of lndian Affairs, P.O. Box 368, Anadarko 

Oklahoma, 73005. The court affirms the magistrate finding that these are not Indian 

children, the termination of the parents' rights will not be set aside, the [ICWA] does not 

apply and reaffirms the prior decision terminating parental rights."
6

Mother timely appealed the district court's judgment on March 3, 2021, but the 

notice of appeal was not verified. Mother filed a verification of the notice of appeal on 

May 26, 2021. In response to this court's show cause order questioning jurisdiction to 

hear this appeal, Mother provided the original notice of appeal and the subsequent 

verification. This court noted Mother's response and retained the appeal.

DOES THIS COURT HAVE JURISDICTION OVER THIS APPEAL?

Before addressing Mother's claim on appeal, the State argues in its brief that this 

court lacks jurisdiction over the appeal for two reasons. First, the State argues that the 

district court's order Mother is appealing is not an appealable order. Second, the State

argues that the notice of appeal is untimely because of Mother's late verification. Mother 

did not respond to the State's jurisdiction arguments.

Whether jurisdiction exists is a question of law over which this court's review is 

unlimited. Via Christi Hospitals Wichita v. Kan-Pak, 310 Kan. 883, 889, 451 P.3d 459 

(2019). The right to appeal is statutory. Kansas appellate courts have jurisdiction to 

entertain an appeal only if the appeal is taken in the manner prescribed by statute. 

Wiechman v. Huddleston, 304 Kan. 80, 86-87, 370 P.3d 1194 (2016). Because the law 

requires that an appellate court have jurisdiction, it is the appellate court's duty to dismiss 

an appeal when the record discloses a lack of jurisdiction. City of Kansas City v. Lopp, 

269 Kan. 159, 161, 4 P.3d 592 (2000).

K.S.A. 2020 Supp. 38-2273(a) limits the types of orders that can be appealed in a 

CINC case under the revised Kansas Code for Care of Children. Under that statute, 

appealable orders are limited to "'any order of temporary custody, adjudication, 

disposition, finding of unfitness or termination of parental rights.' If an order in a child in 

need of care case does not fit within these five categories, it is not appealable." In re 

N.A.C., 299 Kan. 1100, Syl. ¶ 3, 329 P.3d 458 (2014).
7

The State does not elaborate on its position but simply says that "this appeal was 

taken from an order that does not fit within the five categories." But the State's assertion 

is wrong. Mother is appealing the district court's February 10, 2021, order finding that 

proper notice was given under ICWA and reaffirming the prior decision terminating

Mother's parental rights. Because Mother is appealing the final order terminating her 

parental rights, it is an appealable order, and this court has jurisdiction to review it. In re 

N.A.C., 299 Kan. 1100, Syl. ¶ 3.

Next, the State argues that this court lacks jurisdiction because Mother's notice of

appeal was untimely verified. Mother's original notice of appeal was filed within 30 days 

of the final order, but it was not verified until almost 3 months later. The State argues that 

this untimely verification means that this court lacks jurisdiction.

The notice of appeal from the district court must be filed within 30 days. K.S.A. 

2020 Supp. 38-2273(c); K.S.A. 2020 Supp. 60-2103(a). The appellant must verify every 

notice of appeal, docketing statement, and appellate brief if the appellant was personally 

served at any time during the proceedings. K.S.A. 2020 Supp. 38-2273(e). "Failure to 

have the required verification shall result in the dismissal of the appeal." K.S.A. 2020 

Supp. 38-2273(e). This requirement was designed to alleviate the problem of attorneys 

who were bound to proceed with appeals for a parent even if the parent was uninterested

or could not be located. See In re J.A., 30 Kan. App. 2d 416, 422, 42 P.3d 215 (2002).

Mother's notice of appeal was timely filed on March 3, 2021; a separate 

verification of the notice was filed on May 26, 2021; the docketing statement was timely 

filed on June 14, 2021. This court has found that an unverified notice of appeal may be 

amended by subsequent verification, even if the amendment is untimely. In re K.N.H., 

No. 95,374, 2006 WL 1585736, at *3 (Kan. App. 2006) (unpublished opinion).
8

This court has already addressed the jurisdiction issue and retained jurisdiction 

over the appeal. In response to this court's show cause order questioning jurisdiction to 

hear this appeal, Mother provided the original notice of appeal and the subsequent 

verification. This court did not ask for further briefing on the issue, but simply ruled 

"[a]ppeal retained." We decline to overrule this court's prior order retaining jurisdiction 

over this appeal, and we will address the merits of Mother's sole claim on appeal.

DID THE DISTRICT COURT ERR WHEN TERMINATING MOTHER'S

PARENTAL RIGHTS AFTER FINDING THAT PROPER NOTICE WAS GIVEN UNDER ICWA?

Mother claims the district court abused its discretion when it ruled that the State 

gave proper notice under ICWA. She also asserts that by ignoring the notice 

requirements, the district court violated her substantive due process rights, another abuse 

of discretion. The State responds that the district court did not err in finding that the State 

gave sufficient notice under ICWA and in terminating Mother's parental rights. 

Determining whether ICWA applies requires statutory interpretation, which makes it a 

question of law over which this court exercises unlimited review. In re A.J.S., 288 Kan. 

429, 431, 204 P.3d 543 (2009).

Termination of parental rights of Native American children is governed by the 

ICWA, 25 U.S.C. § 1901 (2018) et seq. See K.S.A. 2020 Supp. 38-2203(a) (The revised 

Kansas Code for Care of Children does not apply when ICWA applies.). See In re M.F., 

290 Kan. 142, 148-49, 225 P.3d 1177 (2010). In any proceeding involving custody of a 

child of Indian heritage, the court must determine whether ICWA governs the 

proceeding. If a child is an enrolled member of a tribe or is the biological child of a 

member and is eligible for membership, ICWA applies. 25 U.S.C. § 1903(4) (2018).

Whether a child is considered Indian under the ICWA is ultimately a determination for 

the child's potential tribe, not the district court. In re M.H., 50 Kan. App. 2d 1162, 1166, 

337 P.3d 711 (2014).
9

If the district court knows or has reason to believe that the child whose parent's 

rights are sought to be terminated might be Indian, then it must order the party seeking to 

terminate the parent's rights to provide notice to the child's tribe of the proceedings and to 

inform the tribe of its right to intervene. 25 C.F.R. § 23.11(a) (2019). ICWA requires 

specific notice of the proceedings to the applicable Indian nations or tribes or to the BIA 

so that an interested nation or tribe may intervene in the proceedings. A tribal court has 

concurrent jurisdiction with state courts over involuntary child custody proceedings 

involving children not domiciled on a reservation. 25 U.S.C. § 1911(b) (2018).

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S. Ct. 1597, 104 

L. Ed. 2d 29 (1989). According to 25 C.F.R. § 23.111 (2019), the federal regulation 

governing ICWA notice:

"(c) Notice must be sent by registered or certified mail with return receipt 

requested. Notice may also be sent via personal service or electronically, but such 

alternative methods do not replace the requirement for notice to be sent by registered or 

certified mail with return receipt requested.

"(d) Notice must be in clear and understandable language and include the 

following:

(1) The child's name, birthdate, and birthplace;

(2) All names known (including maiden, married, and former names or 

aliases) of the parents, the parents' birthdates and birthplaces, and Tribal 

enrollment numbers if known;

(3) If known, the names, birthdates, birthplaces, and Tribal enrollment 

information of other direct lineal ancestors of the child, such as 

grandparents;

(4) The name of each Indian Tribe in which the child is a member (or 

may be eligible for membership if a biological parent is a member);

(5) A copy of the petition, complaint, or other document by which the 

child-custody proceeding was initiated and, if a hearing has been 

scheduled, information on the date, time, and location of the hearing;

. . . .
10

"(e) If the identity or location of the child's parents, the child's Indian custodian, 

or the Tribes in which the Indian child is a member or eligible for membership cannot be 

ascertained, but there is reason to know the child is an Indian child, notice of the childcustody proceeding must be sent to the appropriate Bureau of Indian Affairs Regional 

Director (see www.bia.gov). To establish Tribal identity, as much information as is 

known regarding the child's direct lineal ancestors should be provided. The Bureau of 

Indian Affairs will not make a determination of Tribal membership but may, in some 

instances, be able to identify Tribes to contact."

25 C.F.R. § 23.11(b)(4) states:

"(4) For child-custody proceedings in Kansas, Texas (except for notices to the 

Ysleta del Sur Pueblo of El Paso County, Texas), or the western Oklahoma counties of 

Alfalfa, Beaver, Beckman, Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche, 

Cotton, Custer, Dewey, Ellis, Garfield, Grant, Greer, Harmon, Harper, Jackson, Kay, 

Kingfisher, Kiowa, Lincoln, Logan, Major, Noble, Oklahoma, Pawnee, Payne, 

Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods or Woodward, notices must 

be sent to the following address: Anadarko Regional Director, Bureau of Indian Affairs, 

P.O. Box 368, Anadarko, Oklahoma 73005. Notices to the Ysleta del Sur Pueblo must be 

sent to the Albuquerque Regional Director at the address listed in paragraph (b)(6) of this 

section."

Mother's appellate brief copies verbatim five pages from the district court's 

February 10, 2021, decision, setting forth the district court's findings on the ICWA notice 

issues. Mother's brief then makes the conclusory claim: "The District Court made a clear 

and obvious error in law when ruling that proper notice was given. This clear and obvious 

error constitutes an[] abuse of discretion and thus the District court's ruling should be 

overturned." Mother adds: "It is undisputed and supported by evidence in the record that 

the children at issue in this appeal are of Native American heritage. . . . Therefore, notice 

to potential affiliated tribes is mandatory under ICWA before parental rights can be 

terminated or transferred. Proper notice was not given pursuant to ICWA."
11

Contrary to Mother's assertions, the district court correctly found that the State 

complied with the ICWA notice requirements and no error of law was made. Originally 

relying on Mother's March 31, 2015, affidavit, the State first sent notice to the Secretary 

of the Interior/BIA Area Director and the Chairperson of the Apache Tribe of Oklahoma

on April 16, 2015. The notice contained the Children's names, birthdates, current address, 

possible tribe affiliation of Apache; similar information for Mother; and no known 

information at that time for Children's father or other kin. The Apache Tribe of Oklahoma 

Enrollment Office confirmed that the Children were not in the enrollment records and no 

further notice was required.

On June 19, 2020, after the district court's second remand to the magistrate judge, 

the State sent a revised notice to more than 20 entities, including Apache tribes in 

Oklahoma, New Mexico, and Arizona, plus various BIA offices in Oklahoma, Kansas, 

New Mexico, Arizona, and Washington D.C. This notice had updated information on the 

Children's place of birth; information on S.G. and N.G.'s father—M.G.'s father is still 

unknown; all known information on the Children's grandparents, including Mother's 

biological mother, Mother's biological father, and father's biological mother; all known 

information on the Children's great-grandparents, including Mother's biological 

grandmothers and grandfathers. Again, every response the State received said that the 

Children were not enrolled or eligible for enrollment.

After reviewing the evidence presented in the final hearing, the district court found 

that the State used due diligence to identify and provide notice to all the tribes of which 

there was reason to know the Children may have been a member or were eligible for 

membership. The record supports this finding. Mother points to no evidence in the record 

and cites no applicable statute or regulation to support her conclusory argument that the 

district court erred in finding the State satisfied ICWA notice provisions.
12

In copying the district court's findings in her appellate brief, Mother includes the 

findings that she testified at the final hearing and, for the first time in the proceedings, 

expressed a belief that her maternal great grandparents were Sioux Native Americans in 

either North or South Dakota. But Grandmother testified that Mother was wrong about 

the family connection with the Sioux tribe. Grandmother testified that the family may 

have a connection with the Yaqui tribe, but she did not know whether the Yaqui tribe was 

a federally recognized tribe or where it was located. Mother does not develop any 

argument on appeal related to this testimony. Mother raises this point incidentally and a 

point raised incidentally in a brief and not argued there is considered waived or 

abandoned. In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018).

But more importantly, the district court found in its final order that "[t]he 

testimony given in this matter by [Mother] and [Grandmother] in this case was often 

confusing, vague with little specifics and conflicting." We can infer from this finding that 

the district court did not find the testimony from Mother and Grandmother about the 

Sioux or the Yaqui tribe to be credible. "'An appellate court does not reweigh evidence, 

resolve conflicts in the evidence, or pass on the credibility of witnesses.'" State v. 

Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). The district court also found that the 

Yaqui tribe is not on the list of recognized federal tribes that would need to receive notice 

of the hearing, and this finding is supported by evidence in the record.

Finally, Mother argues the district court abused its discretion when it violated her 

substantive due process rights because it "ignore[ed] the notice requirement of ICWA and 

terminat[ed her] parental rights." Mother raises this argument for the first time on appeal.

Generally, issues not raised before the district court cannot be raised on appeal. Gannon 

v. State, 303 Kan. 682, 733, 368 P.3d 1024 (2016). Supreme Court Rule 6.02(a)(5) (2022

Kan. S. Ct. R. at 35) requires an appellant to explain why an issue that was not raised

below should be considered for the first time on appeal. Mother does not do so.
13

In any event, Mother's argument on this issue fails. Even assuming she brought 

this issue before the district court, it stems from the flawed presumption that the district 

court ignored ICWA notice provisions. As we have explained, the district court did not 

ignore the requirements and correctly found the State satisfied ICWA notice provisions.

In sum, we conclude the district court did not err in finding that the State used due 

diligence to identify and provide notice to all the tribes of which there was reason to 

know the Children may have been a member or were eligible for membership. Thus, the 

State gave proper notice of the proceedings under ICWA. As this is Mother's only claim 

on appeal, we find the district court did not err in terminating Mother's parental rights.

Affirmed.