Opinion
Nos. 106,434 106,613.
2012-07-27
STATE of Kansas, ex rel, SRS and Misty N. Cullens and A.M., by and through her next friend, Misty Cullens, necessary third parties, Appellees, v. Scott M. MOSHER, Appellant, and Gary C. Cullens, Appellee.
Appeal from Shawnee District Court; Jean M. Schmidt, Judge. Rachel I. Hockenbarger, of Topeka, for appellant natural mother. Dionne A.L. Carter, of Topeka, for appellant putative father.
Appeal from Shawnee District Court; Jean M. Schmidt, Judge.
Rachel I. Hockenbarger, of Topeka, for appellant natural mother. Dionne A.L. Carter, of Topeka, for appellant putative father.
Melissa Johnson, senior attorney, of Kansas Department of Social and Rehabilitation Services, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Misty N. Cullens gave birth to a girl, A.M., in 2010. Later that year, the Kansas Department of Social and Rehabilitation Services (SRS) filed a petition in the Shawnee County District Court alleging that either Gary C. Cullens or Scott M. Mosher was the father of A.M. SRS sought an order adjudicating the issue of paternity.
The district court held a “ Ross hearing” to determine whether it was in the best interests of A.M. to undergo genetic testing to determine the identity of her biological father. This is according to the requirements of In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). Here, Cullens was the presumed father of A.M. because he was married to Misty Cullens at the time of A.M.'s conception and because A.M. was born within 300 days of their subsequent divorce. Despite these facts, Mosher wanted the court to order genetic testing because he thought he was A.M.'s father.
At the Ross hearing, Misty testified that she and Mosher were both incarcerated. Misty indicated she thought Mosher was the father of A.M. and urged the court to order genetic testing and felt that finding out Mosher was the father was in A.M.'s best interests because “that's her dad.” Misty did agree that Mosher could not take care of A.M. or see her and gave no audible response as to whether Mosher could support A.M.
Mosher, meanwhile, testified that he wanted to support A.M. and he was able to do so. He noted that his family had power of attorney over his assets, including the money in his bank account. Mosher also testified that A.M. knows him to be her father and that she calls him “dada.” Mosher said his family had contact with A.M., particularly when his sister, cousin, and other family members had her over at Christmas time. Mosher told the court that he wanted his father to be a part of A.M.'s family and that his aunt had been with A.M. plenty of times. Mosher indicated he had no problems with A.M. living with Cullens, but said he would rather one of his family members have her “to be able to associate that establishment with her.” Mosher agreed he has never lived with A.M.
Cullens testified that A.M. was 11 months old and living with Misty's parents. Cullens said he had contact with A.M. while his wife babysat for her. Cullens also had contact with A.M. while she was visiting her sisters and brothers. Cullens told the court the other children had a relationship with A.M. and he wanted her to be a part of the family along with the other children. Cullens wanted the court to continue to recognize him as A.M.'s father and wanted to continue to provide for her because he had been part of her life ever since her birth. He did tell the court that a child in need of care case involving A.M. was pending before the district court as well and that he was actively working to gain custody of A.M. in that case. Cullens told the court that he currently had visitation with A.M. every Tuesday.
The guardian ad litem told the court she believed it was in the best interests of A.M. to allow Cullens to continue to assert parental rights over A.M. The guardian ad litem also argued that it was better for A.M. to be raised by Cullens along with his other four children than being raised by a grandparent or aunt.
Finally, in April 2011, the district court decided the matter. The court held it was not in A.M.'s best interests to set aside the presumption that Cullens was A.M.'s father and order genetic testing. Therefore, the court deemed Cullens was the father of A.M. and ordered that her last name be changed to Cullens. Both Mosher and Misty Cullens appeal that decision.
The issue.
In this appeal, Misty and Mosher contend that the district court did not have jurisdiction to hold this Ross hearing because there was a pending child in need of care case concerning A.M. that takes precedence over this paternity action filed by SRS. Both of them contend that the district court's decision to deny genetic testing is barred by the doctrine of collateral estoppel because the juvenile court ordered genetic testing in the child in need of care case. They also contend that the district court erred when it decided that it was not in A.M.'s best interests to determine her parentage. Finally, Misty contends that she has been denied due process because she was not given notice of the Ross hearing and not given the opportunity to be heard on the paternity issue.
In response, SRS contends the district court had jurisdiction to decide this matter because the law specifically authorizes a separate paternity action if paternity becomes an issue during a child in need of care proceeding. The agency also denies the allegation that collateral estoppel applies in this case because paternity was not a required determination in the child in need of care case. SRS also argues that there was sufficient evidence to support the district court's finding that it was not in A.M.'s best interests to have genetic testing. Finally, the agency contends that Misty Cullens did receive due process in this case because notice of the Ross hearing was mailed to her last known address and she attended the hearing, participated, and was given the opportunity to be heard and question witnesses.
Jurisdiction
Both appellants, Misty Cullens and Mosher, claim the district court lacked jurisdiction to hold a Ross hearing in this case because of K.S.A.2011 Supp. 38–1116(d). The trouble with their argument is both parties rely upon the current version of the statute and not the statute that was in effect at the time of the hearing.
The district court held the Ross hearing in March 2011 and rendered its decision on the paternity issue in April 2011. This is prior to the date on which the 2011 amendments to K.S.A. 38–1116(d) became operative. Prior to July 1, 2011, K.S.A.2010 Supp. 38–1116(d) stated that any “custody, residency or parenting time” order issued under the Child in Need of Care Code shall take precedence over any order under the Kansas Parentage Act. We note that in 2011 the Kansas Legislature amended that portion of the statute and replaced it to say, “[a]ny order” issued in a child in need of care case shall take precedence. But this amendment became effective July 1, 2011. Applying the law that was applicable at the time the court held the hearing, K.S.A.2010 Supp. 38–1116(d), it is clear that Misty Cullens and Mosher's jurisdictional argument fails. A Ross hearing does not deal with custody, residency, or parenting time, and an order denying paternity testing also has nothing to do with custody, residency, or parenting time. Simply put, the district court had jurisdiction to do what it did.
Collateral estoppel
In this issue, Misty Cullens and Mosher contend the district court's decision denying paternity testing is barred by the doctrine of collateral estoppel because Judge Mitchell, who presided over A.M .'s child in need of care case, had ordered genetic testing. This obviously is a question of law over which we exercise unlimited review. In re Tax Appeal of City of Wichita, 277 Kan. 487, 506, 86 P.3d 513 (2004).
We note first that the record on appeal does not contain any order calling for genetic testing. Misty Cullens indicates that a copy of Judge Mitchell's order for genetic testing is attached to her brief. Indeed, there is a document attached to her brief in an appendix that is difficult to read that appears to be a copy of the minutes in a Shawnee County case. But we will not consider the attachment as evidence to support Misty Cullens' argument because this court has repeatedly held that material added to an appellate brief by way of an appendix is not a substitute for the record itself and cannot be considered on appeal. See State v. Valladarez, 288 Kan. 671, 685–86, 206 P.3d 879 (2009); Kansas Supreme Court Rule 6.02(f) (2011 Kan. Ct. R. Annot. 39). In conclusion, we see no evidence supporting their argument on this point.
Evidence sufficiency
Since the publication of the Ross decision, this court has addressed questions about the best interests of children a number of times. In determining the best interests of the child, the district court may consider multiple factors: (1) The rights and relationships between the child and the presumed father which might be lost; (2) the biological father's willingness to assume the responsibilities of parentage; (3) whether any compelling medical need exists to determine parentage: (4) the movant's motive in bringing the paternity action; (5) the notoriety of the child's situation in the community; (6) the possible effect that a determination of parentage will have on the child's existing relationships; (7) the child's basic interest in knowing his or her biological father; (8) stability of the home environment; (9) the existence or absence of the family unit; (10) the child's level of uncertainty concerning his or her parentage; (11) any other factors that will maximize the child's opportunities for a successful life. In re D.B.S., 20 Kan.App.2d 438, 457–58, 888 P.2d 875,aff'd258 Kan. 396, 903 P.2d 1345 (1995).
To support its decision in this case, the district court set forth several facts that it thought was salient.
• Misty had been charged with second-degree murder in her criminal case and Mosher was charged with first-degree murder in his criminal case; it was therefore difficult to determine A.M.'s best interest, considering the uncertainty of Misty's and Mosher's futures.
• A.M. had spent considerable time with Cullens, but was in the physical care of Misty's mother due to Cullens' arrest in February 2011.
• Mosher was incarcerated at the time of A.M.'s birth, but claims to have a relationship with her through her visits to the jail.
• Mosher claims to have assets with which to financially support A.M.
• Cullens believes it would be best for he and his wife to raise A.M. along with her other four siblings.
• Prior to Misty's arrest, Cullens and his wife provided daycare for A.M., and Cullens claims to have a relationship with A.M.
• To deny genetic testing would terminate Mosher's parental rights.
The court then stated that its decision was based on the following findings of fact:
• Mosher's assertion that A.M. knows him as her father is not credible because he has been incarcerated since her birth and has had only had minimal contact with her through a glass window.
• A.M.'s contact with Mosher's family during the holidays was insufficient to establish a significant relationship.
• Cullens and his wife have provided care for A.M. and have familiarity with her.
• It is in A.M.'s best interest to be raised in a family unit with her siblings.
• In the unlikely event that Misty is available in the future to resume a parental role for her children, her rights would not be affected by the placement with Cullens.
• In the unlikely event that Mosher is available in the future to resume a parental role for A.M., to date he has not provided for her financially, emotionally, and physically—as those things have been provided by Cullens or other family members.
• It is unreasonable to put A.M.'s life on hold pending the outcome of Misty's and Mosher's criminal cases.
The court concluded by stating:
“The person most likely to provide a loving and stable home for [A.M.] at this point in time is Mr. Cullens. While fully acknowledging the unlikeliness of his biological paternity, he is fully informed of the consequences of allowing the presumption to stand. He remains willing and able to provide for her and to accept her as his own and to love her and care for her as one of his own. An intact family group seems more likely to provide for her needs than allowing her to be raised by proxy by two persons serving lengthy prison sentences.”
Basically, Misty Cullens and Mosher ask us to reweigh the evidence. Their arguments focus on conflicting evidence, and it is not our job to redetermine what the district court has already done. See In re B.D.-Y., 286 Kan. 686, 705–06, 187 P.3d 594 (2008).
We conclude that it is clear the district court in this case considered all of the evidence before it and all of the competing factors at play when determining it was not in the best interests of A.M. to order genetic testing. The district court's findings of fact were more than sufficient to support its conclusions of law, and we will not disturb them on appeal.
Misty's due process complaint
In her final argument, Misty Cullens complains that she was deprived of her right to due process concerning the Ross hearing because she was not given an opportunity to be heard at the hearing and received no notice of the hearing. She claims she was transported to the county jail to the hearing to participate pro se, she was not given an opportunity to testify on her own behalf, and she was not provided an opportunity to present her own evidence or call witnesses. We exercise unlimited review over this question. See State v. Wilkinson, 269 Kan. 603, 609, 9 P.3d 1 (2000). When we review a procedural due process claim, we must first determine whether a protected liberty or property interest is involved. If there is, the court will then determine the nature and extent of the process due. After all, the fundamental question of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. In re J.D.C, 284 Kan. 155, 166, 159 P.3d 974 (2007).
A review of the record indicates that the notice of Ross hearing was filed on February 15, 2011. The certificate of service indicates it was mailed to Cullens, Mosher, and Misty Cullens on that same day. The certificate indicates that Misty Cullens' notice was mailed to her last known address. K.S.A.2011 Supp. 60–205(a)(1)(E) and (b)(2)(C) provide that service of a written notice may be made by mailing it to a person's last known address, in which event service is complete upon mailing. Because the evidence indicates Misty Cullens was given proper legal notice of the Ross hearing via mail, we do not hold that she was deprived of notice.
Misty Cullens appeared at the Ross hearing and testified. She was given ample opportunity to voice her opinion regarding the paternity issue and did so. With such a level of participation in this Ross hearing, we conclude that her contention she was denied due process is without merit.
We affirm the order of the district court denying genetic testing.