Opinion
No. 111,483.
2015-01-2
In the Interest of A.B., Year of Birth 2008, a Female and T.B., Year of Birth 2011, a Female.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.James Bordonaro, of Emporia, for appellant natural father.Meghan K. Morgan, assistant county attorney, and Marc Goodman, county attorney, for appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
James Bordonaro, of Emporia, for appellant natural father. Meghan K. Morgan, assistant county attorney, and Marc Goodman, county attorney, for appellee.
Stuart N. Symmonds, of Symmonds & Symmonds, LLC, of Emporia, for appellee guardian ad litem.
Before HILL, P.J., McANANY, J., AND BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
T.R.B. (Father) appeals both from J.M.'s (Mother) relinquishment of parental rights and the subsequent termination of his own parental rights. We affirm.
Factual and Procedural Background
On May 22, 2012, the State filed a petition alleging that A.B. and T.B. were children in need of care (CINC). An affidavit accompanied by photos of T.B. was filed in support of the petition, alleging that Father had physically abused T.B. An ex parte order was entered placing A.B. and T.B. into Department of Children and Families (DCF) custody.
On May 23, 2012, a one-count information was filed against Father, alleging abuse of a child. Father pled no contest to one count of aggravated battery, and was sentenced on May 15, 2013, to 15 months' imprisonment after the district court imposed an upward dispositional departure.
On May 24, 2012, a temporary custody hearing was held, and A.B. and T.B. were ordered to remain in DCF custody. On June 5, 2012, an adjudication hearing was held. At this hearing, Mother and the guardian ad litem stipulated to the petition while Father entered a no contest statement. The district court found both children to be children in need of care.
Throughout the duration of the case, the permanency plan filed with the district court provided for a case plan of reintegration with a concurrent goal of adoption. A depositional hearing and multiple permanency hearings were held. At those hearings it was noted that Father had been found guilty of additional charges and that he was unable to complete his case plan goals due to his incarceration. Over the course of the case, concerns were raised about Mother's continued drug use. Mother eventually expressed her desire to voluntarily relinquish per parental rights.
On June 11, 2013, prior to Mother's relinquishment hearing, Father filed a motion for the recusal of Judge Wheeler. The relinquishment hearing took place on June 13, 2013. The district court noted that relinquishment of Mother's parental rights did not involve any interests of Father and decided to hear the recusal motion after conducting the relinquishment hearing. Prior to the relinquishment hearing, the district court requested that Mother submit to a urinary analysis. This was done because at Father's trial for abuse of T.B. on April 22, 2013, Mother was directed to submit to a urinary analysis as it was suspected she was under the influence of drugs while testifying. The results of the urinary analysis performed the day of the relinquishment hearing showed the presence of opiates (morphine) and benzodiazepines. Mother's attorney stated that he had spoken to Mother that morning and she appeared to be lucid and understood what she was doing and that while she tested positive for the substances, the last use took place the day before.
At this point, Father attempted to object to the relinquishment hearing, noting that if Mother relinquished, Father would lose the right to collect child support from her, they were married at common law, and there was a desire for the couple to get back together at some point in the future. The district court ruled that even if the parties were married, that Father could not “dictate to a spouse what decision that spouse makes with regard to her relationship with the children” and proceeded to the relinquishment.
The district court then began to question Mother as to her potential intoxication. When asking about her urinalysis test results, Father objected to Mother's answer as it appeared that she was reading from the test report, which Father argued indicated she was under the influence. The district court overruled this objection because he had no standing to object and the district court would make its determination on its observations. The district court questioned Mother as to her drug use and took great pains to explain that she was forfeiting any and all rights to the children. The district court then found that Mother was fully lucid and accepted her relinquishment.
The district court then took up Father's motion for recusal. Father argued Judge Wheeler was biased because the district court requested Mother to submit a urinary analysis prior to the relinquishment hearing, that Father should have been able to cross-examine Mother at the relinquishment, he was unhappy with the court appointed special advocate (CASA) volunteer's handling of his case, that Judge Wheeler noted that Father had no remorse for his actions during his criminal trial of the abuse of T.B., and Judge Wheeler indicated at the criminal trial that he believed Mother was also responsible for the treatment of T.B. After noting that the relinquishment was the first time he had been involved in the case, Judge Wheeler found that there was no merit to the motion and denied it. Father filed a notice of appeal of Mother's relinquishment, but the appeal was dismissed.
Also at the relinquishment hearing, the State noted that it was going to proceed for termination of Father's parental rights. The State filed its motion for finding of unfitness and termination of Father's parental rights or appointment of a permanent custodian on July 15, 2013. Among the reasons listed for Father's unfitness were his felony convictions and the unexplained injury to T.B.
At the termination hearing, Father stipulated to unfitness and the district court moved on to decide whether Father's rights should be terminated. Based on the issues raised by Father on appeal, it is not necessary to recite all the facts pertaining to the termination hearing. Suffice it to say that there was extensive testimony from a social worker, a therapist, the relative placement, and Father himself. The testimony covered the children's psychological state; their connection, or lack thereof, to Father; long-term placement options for the children; Father's incarceration; and his future hopes and plans.
The district court terminated Father's rights.
Father timely appealed. Father, wishing to pursue an ineffective assistance of counsel theory on appeal, also filed a motion to stay proceedings with this court, requesting a remand to the district court for a hearing on the ineffective assistance of counsel claim. This court denied the motion.
Analysis
Did the district court have jurisdiction to accept Mother's relinquishment of parental rights, and were Father's due process rights violated by the district courts refusal to allow him to object to Mother's relinquishment?
As his first claim of error, Father asserts the district court was without jurisdiction to accept Mother's relinquishment of her parental rights. He also claims the district court erred by not allowing him to object to Mother's relinquishment of parental rights, thereby violating his due process rights.
We note at the outset though Father's rights were not being adjudicated at the relinquishment hearing, it appears that Father does have standing to appeal the relinquishment. K.S.A.2013 Supp. 38–2273(a) provides: “An appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.” While the proceeding at question was a voluntary relinquishment, it did result in the termination of Mother's parental rights, and as such, is an appealable order. See In re C .P., No. 106,758, 2012 WL 3000381, at *4 (Kan.App.2012) (unpublished opinion). K.S.A.2013 Supp. 38–2202(v) defines party to include “any parent of the child.” Therefore, given any party may appeal a termination of parental rights, and the term party encompasses any parent, by the plain language of the statutes Father has standing to bring this claim.
Whether jurisdiction exists is a question of law over which this court has unlimited review. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). Father claims the district court was without jurisdiction to accept Mother's relinquishment because it was not properly before the district court pursuant to the terms of K.S.A.2013 Supp. 38–2268(a), which provides:
“Prior to a hearing to consider the termination of parental rights, if the child's permanency plan is either adoption or appointment of a custodian, with consent of the guardian ad litem and the secretary, either or both parents may relinquish parental rights to the child, consent to an adoption or consent to appointment of a permanent custodian.”
Here, Father contends that the district court did not have authority to accept Mother's relinquishment as the permanency plan in place at the time of the relinquishment hearing was reintegration with the concurrent goal of adoption. Father argues that since the permanency goal was reintegration concurrent with adoption, and not simply adoption or appointment of a custodian, the district court lacked jurisdiction.
However, Father cites to no caselaw on this matter and neither does the State. There is no Kansas precedent interpreting K.S.A.2013 Supp. 38–2268(a). In this case the proceedings had reached a stage where the permanency plan was, at least, in part adoption. In fact, a termination proceeding was imminent. Further, K.S.A.2013 Supp. 38–2268(b)(l) states: “Any parent or parents may relinquish a child to the secretary ....“ Also, K.S.A.2013 Supp. 38–2264(f), the statute relating to permanency hearings, states:
“When the court finds that reintegration continues to be a viable alternative, the court shall determine whether and, if applicable, when the child will be returned to the parent. The court may rescind any of its prior dispositional orders and enter any dispositional order authorized by this code or may order that a new plan for the reintegration be prepared and submitted to the court. If reintegration cannot be accomplished as approved by the court, the court shall be informed and shall schedule a hearing pursuant to this section. No such hearing is required when the parents voluntarily relinquish parental rights or consent to appointment of a permanent custodian.” (Emphasis added.)
This section would indicate a parent may relinquish his or her parental rights even if the current goal is still in a phase of reintegration.
Furthermore, K.S.A.2013 Supp. 38–2201(b)(1) instructs that the code be liberally construed to “[c]onsider the safety and welfare of a child to be paramount in all proceedings under the code.” It would be inconsistent with the safety and welfare of the child to not let a parent in a CINC case relinquish his or her parental rights when the parent is effectively admitting he or she is unable to care for the child. Reading all these statutory provisions together and taking into account the case plan goal included adoption as an option, the district court had jurisdiction to accept Mother's relinquishment.
Father argues pursuant to K.S.A.2013 Supp. 38–2268(a), a parental termination hearing must already be scheduled before relinquishment can occur due to the language stating that a parent can relinquish “[p]rior to a hearing to consider the termination of parental rights ....“ Again, Father cites no authority for this proposition. Interpreting this statute to require a termination proceeding to be scheduled before a relinquishment can occur is inconsistent with resolving CINC matters in the most timely manner possible.
Father also claims his due process rights were violated when he was not allowed to object to Mother's relinquishment. “In reviewing a procedural due process claim, we must first determine whether a protected liberty or property interest is involved. If it is, then we must determine the nature and extent of the process due,” and “[a] due process violation exists only when a claimant is able to establish that he or she was denied a specific procedural protection to which he or she was entitled.” In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007). Here, it is clear that there is no due process violation as Father did not have any fundamental right at stake. Father claims: “Here, the interest at stake is the fundamental liberty interest that a parent has in the care and control of his child which continues to exist even if the other parent has voluntarily relinquished her rights.” In fact, by stating that this interest continues to exist even though the other parent relinquishes shows that his liberty interests were not at stake. He does not point to any way that this right was affected by Mother's relinquishment. As stated above, K.S.A.2013 Supp. 38–2268(b)(1) expressly allows any parent to relinquish his or her rights. Here, Father's rights and fundamental liberty interests were not in any way constrained by Mother's relinquishment. It affected her rights to the children only and did not affect Father's rights to his children. Since he had no liberty interest at stake his due process rights were not violated. Did the district court lack subject matter jurisdiction over Father's termination of parental rights hearing because it was beyond the 90–day statutory timeframe?
Father's second claim of error is that the district court lacked subject matter jurisdiction over the termination hearing because it was not held within 90 days. K.S.A.2013 Supp. 38–2267(a) states:
“Upon receiving a petition or motion requesting termination of parental rights or appointment of permanent custodian, the court shall set the time and place for the hearing, which shall be held within 90 days. A continuance shall be granted only if the court finds it is in the best interests of the child.”
Jurisdiction is a question of law over which this court's review is unlimited. Goudschaal, 296 Kan. at 743. Since Father is contending that the plain language of the statute requires the hearing be held within 90 days of the motion for termination, this is also a question of statutory interpretation, a question of law we also review without limitation. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009).
Generally, provisions of statutes “governing order and timing of procedures are more likely to be determined to be directory only.” 289 Kan. at 919. Determining whether a provision of a statute is directory or mandatory involves the analysis of four factors: “(1) legislative context and history; (2) substantive effect on a party's rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision.” 289 Kan. at 921.
In this particular case, the legislative policy regarding actions under the code require the code to be liberally construed to carry out certain policies, including a policy to “acknowledge that the time perception of a child differs from that of an adult and to dispose of all proceedings under this code without unnecessary delay .” K.S.A.2013 Supp. 38–2201(b)(4). It would seem there is some validity in this argument in that there is an explicitly stated statutory policy aimed at timeliness in CINC cases.
However, turning to the rest of the factors, there is no evidence that would support Father's arguments. There appears to be no substantive effect on the Father's rights, as the statute only directs when a hearing is to be had and does not grant him or terminate any rights itself. Father argues that his rights were substantially impaired because he “believes that the trial court routinely misinterprets the law to impose a bright line requirement of forcing the trial court to make a decision on the viability of reintegration prior to the 15 month deadline” which is part of the federal Adoption and Safe Families Act. See 42 U.S.C. § 675(5)(E) (2012). He also contends that the CASA volunteer and guardian ad litem quit keeping in contact with Father due to the deadline passing. There is no evidence to support either scenario. Further, Father was incarcerated during the pendency of the CINC proceedings and remained incarcerated beyond the date of the termination hearing. Besides the assertions that the trial court routinely acts impermissibly and the professionals involved in the case refused to work with him there is nothing on the record that would indicate his substantive rights were damaged in any way.
The third factor also works against Father as there are no consequences listed in the statute for noncompliance.
The fourth factor also works against Father as the subject matter of the particular statute concerns only the date of the hearing and service of all parties involved. There is absolutely nothing in the statute indicating that the district court is without jurisdiction or any action taken by the district court is invalid if the hearing is held outside 90 days.
A panel of this court, in interpreting whether the time frames laid out in CINC cases (under the previous version of the code) are mandatory or directory stated:
“Although time limitations for a child in need of care case are stated in the statutes, they must be read in concert with K.S.A. 38–1501, which instructs that the Kansas Code for Care of Children shall be liberally construed. The time frames prescribed by the statutes are to see that a severance case is expeditiously resolved and to protect parties from unreasonable delay. But, a rigid interpretation of the statutes would do little to further the end that each child shall receive the care, custody, guidance, control, and discipline, preferably in the child's own home, as will best serve the child's welfare and the best interests of the State.” In re B.H., 32 Kan.App.2d 12, 18, 80 P.3d 396 (2003).
Here, the provision of the statute Father cites sets out only a mode of proceeding and timing. Father has been unable to show that his substantive rights were harmed or his interests impeded in any way by the failure of the district court to hold the hearing within 90 days. The district court did not err. Was Father denied effective assistance of counsel during his termination hearing?
As his last claim of error, Father asserts he was denied effective assistance of counsel during the termination hearing. While ineffective assistance of counsel generally is found in a criminal context, it is applicable to termination of parental rights hearings. See In re Rushing, 9 Kan.App.2d 541, Syl. ¶ 3, 684 P.2d 445 (1984). However, a claim of ineffective assistance of counsel generally will not be considered for the first time on appeal. State v. Dull, 298 Kan. 832, 839, 317 P.3d 104 (2014). The proper procedure for handling issues of ineffective assistance of counsel for the first time on appeal is for the appellate counsel to seek remand to the district court so that the factual circumstances relating to the claim may be resolved by the trial court, who is in the best position having observed the parties at trial. State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986). However, the appellate courts will not issue a remand to the district court in every case, but only those that have merit. Van Cleave, 239 Kan. at 120 (quoting State v. Shepherd, 232 Kan. 614, 620, 657 P.2d 1112 [1983] ).
Here, it should be noted that Father did file a motion for stay of proceedings in this court on May 19, 2014, seeking a remand to the district court for a determination of his ineffective assistance of counsel claims. Father also filed a motion with the district court seeking a new termination hearing for the same reasons. This court denied his motion.
It is unclear as to whether the Van Cleave remand is applicable to termination proceedings. There are no reported cases dealing with the matter. However, in In re J. W., No. 106,561, 2012 WL 2621154, at *3–6 (Kan.App.2012) (unpublished opinion), a panel of this court, while noting that it was unclear as to whether the Van Cleave procedure applied, did conduct the analysis to determine whether a remand was necessary. Therefore, an analysis of the ineffective assistance of counsel claim is in order.
To establish an ineffective assistance of counsel claim, the appellant must show that (1) counsel's performance was constitutionally deficient, that is a showing that counsel made errors so serious that the performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) that counsel's deficient performance prejudiced the defendant, resulting in errors so severe that the defendant was deprived a fair trial. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). However, scrutiny of a counsel's performance is highly deferential and this court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).
Here, Father makes multiple claims of ineffective assistance: (1) termination attorney wrongly recommended that Father stipulate to unfitness; (2) termination attorney was not a zealous advocate by failing to call certain witnesses; (3) termination attorney did not call a certain witness to rebut A.B.'s PTSD diagnosis and to testify for support of Father sending letters to his children; (4) termination attorney's failure to recognize the difference between statutory factors and presumptions in termination cases; (5) termination attorney's failure to investigate other possible permanent custodians; and (6) termination attorney's failure to raise jurisdictional issues or request a continuance.
Arguments one through four all question strategic decisions made by trial counsel. In reviewing these types of issues it must be noted that if counsel has made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. Strategic decisions made after a less than comprehensive investigation are reasonable exactly to the extent a reasonable professional judgment supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318 (2013) (citing Strickland v. Washington, 466 U.S. 668, 690–91, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 [1984] ).
As to arguments one and four, the decision to stipulate to unfitness was certainly a viable strategic maneuver. Given Father's incarceration for 15 months due to physical abuse of T.B., his other felony convictions, and the incident of an unexplained injury to T.B. on another instance, it would seem that there was no realistic chance that Father would not be declared unfit. Further, the difference between the statutory presumptions and factors was rendered moot by the strategic decision to stipulate to unfitness. While Father may not have been presumptively unfit, there was certainly ample evidence to believe that he would be determined unfit after applying the statutory factors to the evidence against him.
As to argument two, there is nothing on the record to indicate that the termination hearing attorney was not advocating zealously for his client. He made appropriate objections, which included seeking to exclude evidence of the unexplained injury to T.B. He also was successful at keeping a report out of evidence that may have been damaging to Father. While Father attempts to fault counsel for not calling certain witnesses to rebut the alleged “March incident” resulting in the unexplained injury to T.B., counsel did object to some of this testimony. The strategy of stipulating to unfitness was geared toward avoiding damaging aspects of this evidence. It appears that not calling the witnesses was a strategic decision serving a legitimate purpose.
Regarding argument three, Father argues that counsel should have called Jessica Hemme, a social worker to testify to the beneficial effects of A.B. having letters from Father read to her in the context of therapy. While counsel did not call Hemme as a witness, he still noted at length the beneficial effects of the letters. Also, the district court did seem to consider this factor, weighing it in a light favorable to Father. Further, while Hemme's report indicated there was some beneficial effect to Father's letter writing, the report also contained damaging information, including a recommendation of no contact beyond letters in that any further contact would have a negative impact on A.B. and the fact that A.B. feared her father. Therefore, by not calling Hemme, it would appear that counsel was able to get the helpful information in front of the district court while not potentially exposing any damaging information. Any attempt to attack A.B.'s post traumatic stress disorder appears to have been a questionable tactic. The therapist felt confident in the diagnosis and equally confident in the information provided by A.B. and T.B.'s maternal grandmother (Grandmother) in the trauma checklist. Further, attacking Grandmother's credibility in regard to the information in the trauma checklist ran counter to the strategy of advocating to have her named as the permanent custodian. Therefore, it would seem that the arguments made in support of the third claim were also strategy decisions and did not deny Father a fair hearing.
As to Father's fifth claim, it should be noted that all parties seemed to be in agreement that having Grandmother assume the primary caretaker role, either by permanent custodianship or adoption, was the best option and Father even testified as much. Grandmother had been caring for the children the entire time they had been in out-of-the-home placement during the CINC proceedings and had assumed the role of caretaker prior to that time. Further, the termination attorney also inquired as to the feasibility of keeping the children in DCF custody in order to perhaps allow Father some contact in the future. While the termination attorney was apparently aware of Grandmother's unwillingness to be a permanent custodian, the termination attorney argued vigorously at the termination hearing for her to accept such a position consistent with Father's preference. Given that Father testified it was in the best interests of the children to be with Grandmother, it is difficult to say that the trial counsel was ineffective for failing to identify an alternative custodian.
It is clear that claim six does not apply. There were no jurisdictional defects to raise. As to not requesting a continuance, counsel did object to not receiving a witness and exhibit list from the State by the deadline set by the district court, seeking to prevent the State from presenting any evidence. However, the district court noted that almost all witnesses and the content of their testimony was readily apparent from previous filings and all but the mental health records of A.B. were documents available to Father. To insure that Father was not taken by surprise by an issue that Father was unaware of, the district court indicated it would grant Father time to review any new material. Counsel raised a proper objection, and the district court resolved the issue against Father.
For the reasons above, it appears that the trial counsel was not ineffective and Father was not prejudiced. No remand is necessary.
Affirmed.