In the Interests of D.M.H. Jr., M.M.H., M.L.H., and D.M.H., Minor Children.

Wichita, Kansas criminal defense lawyer represented the Defendant in a parental rights termination action.

Father has four minor children subject to this action: D.M.H. Jr., M.M.H., M.L.H. and D.M.H. (collectively, the children). The natural mother (Mother) of the children is not a party to this appeal, although she separately appealed from the termination of her parental rights and another panel of our court recently reversed and remanded. In re D.M.H., No. 127,428, 2024 WL 4314303, at *1 (Kan. App. 2024) (unpublished opinion), petition for rev. filed October 28, 2024. The facts of the case were set forth in Mother's appeal.



"In June 2021, the children were placed in protective custody due to abandonment. At the time, the children resided with Mother, and Father was incarcerated. Police officers observed then-four-year-old D.M.H. standing alone near an intersection. Shortly thereafter, another individual approached the officers with then-six-year-old M.M.H. and told the officers they were looking for a lost dog. M.M.H. also informed the officers that he and his siblings lived in a trailer with no electricity. Officers took D.M.H. and M.M.H. to the address they were provided and made contact with Mother's boyfriend, who told the officers he had not seen or heard from Mother for approximately 12 hours. He also informed the officers there had been a serious disturbance between him and Mother, and then-nine-year-old D.M.H. Jr. (the eldest of the four siblings) had been present during the incident. Mother was contacted by telephone and returned with D.M.H. Jr." 2024 WL 4314303, at *1.



Mother informed the officers she left the three younger children at the house because they were sleeping. She claimed the homeowner was looking after the children;



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however, the homeowner denied she was asked to care for the children and stated she was not at the residence when Mother left. Mother informed the officers she and the children were residing with her maternal aunt (Aunt). But upon contacting Aunt, the officers learned Mother and the children had not resided with her for over a year. Mother was then unable to provide the officers with an address where she and the children had access to food, water, electricity, and proper shelter. She also admitted she would test positive for marijuana if tested that day.



The Kansas Department for Children and Families (DCF) became involved in the case and performed an investigation, during which Father informed DCF he had been incarcerated for 10 months and had been charged with aggravated battery against Mother. He further reported Mother had started using methamphetamine 2 years earlier and the family had been homeless for approximately 10 months. Father further stated the children had stayed with relatives after he was incarcerated.



Two days after the children were taken into protective custody, the State filed a petition asserting each of the children was a child in need of care (CINC). The State alleged Father was not an appropriate placement for the children because he was presently incarcerated and had a history of domestic violence. A temporary custody hearing was held the following day, at which Father appeared remotely. Mother completed an affidavit and questionnaire of Native American heritage wherein she indicated her father (Maternal Grandfather) was an enrolled member of the Cherokee Nation. Mother was given a genogram to provide additional identification regarding her heritage and enrollment status; however, she never returned it. Father waived his right to an evidentiary hearing on temporary custody. The district court placed the children in the custody of DCF to be put in an out-of-home placement, with further discretion for DCF to place the children in the custody of either parent with 10 days' notice to all parties.



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Affirmed in part, reversed in part, and remanded with directions.