Opinion
No. 108,903.
2013-07-12
In the Interest of C.D.A.
Appeal from Johnson District Court; Kathleen Sloan, Judge. John W. Leighty, of Paola, for appellant natural mother. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kathryn Barker, of Lawrence, guardian ad litem, for appellee.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
John W. Leighty, of Paola, for appellant natural mother. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kathryn Barker, of Lawrence, guardian ad litem, for appellee.
Before GREEN, P.J., PIERRON, J., and BUKATY, SJ.
MEMORANDUM OPINION
PER CURIAM.
M.A., as the natural mother (mother), relinquished her parental rights to C.D.A., which resulted in the termination of those rights. On appeal, mother argues that her constitutional right to due process was violated for two reasons: (I) The trial court erred when it denied her request for substitute counsel; and (2) the relinquishment of her parental rights was involuntary. Because the trial court should have inquired further when presented with information that there was a conflict of interest between mother and her counsel, we cannot determine whether mother's relinquishment was a voluntary action on her part. Consequently, we reverse and remand with directions for an evidentiary hearing to determine whether mother's relinquishment was voluntary.
On July 26, 2011, the State filed a petition alleging that C.D.A. was a child in need of care (CINC). The State's petition alleged the following: that mother suffered from a drug problem; that mother repeatedly left C.D.A. and her other children without parental control or supervision; that mother was unable to provide financial support for C.D.A. or her other children; and that mother had failed to complete a rehabilitation program for her drug problem.
On November 28, 2011, mother submitted a no-contest statement to the State's petition alleging that that C.D.A. was a CINC. Because C .D.A.'s father failed to appear and did not instruct counsel to object, the trial court proceeded “by proffer and enter[ed] a default judgment pursuant to K.S.A. 38–2248(e), as to said father.” Moreover, the guardian ad litem (GAL) stipulated to the State's petition alleging that C.D.A. was a CINC. The trial court found that there was a factual basis for the stipulation and accepted it. Based on these findings, the trial court offered mother a reintegration plan for a period of 6 months.
For whatever reason, mother's formal reintegration plan was not filed until February 23, 2012. On April 2, 2012, the trial court held a review hearing regarding mother's reintegration plan. At the hearing, mother and her counsel were served with copies of a motion for finding of unfitness and for termination of parental rights. The trial court set a pretrial conference for May 30, 2012, and set a trial date for June 21, 2012.
Mother's termination of parental rights case was called for trial as scheduled on June 21, 2012. At trial, mother's counsel requested a continuance so that she could have more time to discuss the matter and prepare for trial. Specifically, the following discussion occurred between mother's counsel and the trial court:
“[COUNSEL:] [Mother would] like to ask that we have more time to discuss and prepare. She's indicated that she's—she has a lot of questions, a lot of—she's just not sure at this point what way she'd like to proceed, Judge, and she'd like to ask that she have more time to prepare.
THE COURT; So you're asking for a continuance?
[COUNSEL:] Yes, Judge, she is asking for a continuance. Additionally, Judge, she is at this point in time, I believe, requesting the consideration of the Court appointing a different attorney.
“She feels that the communication between the two of us has broken down to a point where I believe she feels that she does not think that I'm going to represent her best interest at this point.”
After a brief conversation with mother, the trial court summarily denied the request for a continuance and denied the request for a new attorney. Because of the trial court's denials, mother's counsel requested a short recess to discuss options with mother. The trial court granted the recess request and allowed mother and her counsel time to discuss their options. Immediately after mother's counsel requested a recess, father's counsel requested a continuance so that she could have more time to try to contact father, who resided in Mexico. The trial court denied the request.
After approximately 50 minutes, mother and her counsel returned to the courtroom. Mother's counsel then explained that after consulting with mother, mother had “determined that the best course of action for her in this case would be to relinquish her rights to her child.” Before accepting mother's relinquishment, mother's counsel and the trial court questioned her about her intent to relinquish her parental rights. Next, the trial court heard a proffer as to the unfitness of the father. After which, the trial court found the father to be unfit. Finally, the GAL stated that she believed that it was in the best interests of the child for father's parental rights to be terminated.
Based on the proffer of unfitness as to the father coupled with mother's relinquishment and the GAL's statement regarding the best interests of the child, the trial court summarily terminated the parental rights of the parents and placed the child with SRS for adoption. After the trial court made its determination, it relieved both mother's counsel and father's counsel from any further representation.
Does this court have jurisdiction to hear this appeal based on the State's argument that a voluntary relinquishment is not an appealable ruling?
Before addressing the merits of mother's appeal, we first must determine whether we have jurisdiction to hear her appeal. In Flores Rentals v. Flores, 283 Kan. 476, 480–481, 153 P.3d 523 (2007), our Supreme Court declared:
“Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right. The only reference in the Kansas Constitution to appellate jurisdiction iterates this principle, stating the Kansas Supreme Court shall have ‘such appellate jurisdiction as may be provided by law.’ Kansas Constitution, Article 3, § 3. The Constitution is silent regarding the Court of Appeals, which is not a constitutional court but rather was statutorily created. In creating the Court of Appeals, the legislature limited its jurisdiction, defining the circumstances under which there is jurisdiction to hear an appeal. As a result, Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders. [Citations omitted.]”
In this case, the State challenges this court's jurisdiction. Specifically, the State maintains that “[t]here is no jurisdiction, however, to appeal from the severance of parental rights when the parent voluntary [ sic ] relinquishes those rights.” Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637, 270 P.3d 1074 (2011).
Because the right to appeal is statutory, appeals must be taken in the manner prescribed by statute. Otherwise, an appellate court lacks jurisdiction. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003). To support its argument that this court lacks jurisdiction, the State relies on K.S.A.2012 Supp. 38–2273(a), which reads as follows: “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.” The State contends that because K.S.A.2012 Supp. 38–2273(a) does not expressly mention voluntary relinquishment—and the mother in this case voluntarily relinquished her parental rights—this court lacks jurisdiction.
The State's jurisdiction argument has no merit. After mother signed the relinquishment of parental rights, the trial court terminated her and father's parental rights and granted “the one and only consent for adoption to the State Department of SRS.” Because mother's voluntary relinquishment ultimately resulted in the termination of her parental rights, this court has jurisdiction over her appeal. Indeed, this court has previously reached the same conclusion under substantially similar facts. See In re C.P., No. 106,758, 2012 WL 3000381 at *4 (Kan.App.2012) (unpublished opinion) (“[T]he voluntary relinquishment which resulted in the termination of parental rights provides our court with jurisdiction to review the matter on appeal.”).
Moreover, the State's argument fails to consider that the trial court's journal entry regarding mother's and father's parental rights serves as an adjudication of the case. Adjudication is “[t]he legal process of resolving a dispute; the process of judicially deciding a case. 2. Judgment.” Black's Law Dictionary 47 (9th ed.2009). The trial court's journal entry addressing mother's and father's parental rights was an adjudication of the case. Consequently, the State's jurisdiction argument fails.
Were mother's due process rights violated when the trial court denied her request for substitute counsel?
Moving on to the merits of mother's appeal, we note that mother first argues that her right to due process was violated when the trial court denied her request for substitute counsel. Under Kansas law, “the parents' rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause.” In re J.A.H., 285 Kan. 375, 382, 172 P.3d 1 (2007). K.S.A.2012 Supp. 38–2205(b)(1) provides that “[i]f at any stage of the proceedings a parent desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent.” In other words, when a parent is a party to a termination of parental rights proceeding, the right to counsel, either retained or appointed is essential to due process. See In re T.M.C., 26 Kan.App.2d 297, 299–300, 988 P.2d 241 (1999).
In this case, mother seeks a remand of the case “to the District Court with directions to appoint counsel for the mother, for a hearing on the voluntariness of the relinquishment and for trial on the state's motion if necessary.” On the other hand, the State argues that “[b]ecause Judge Sloan considered the relationship between [mother] and her counsel, it cannot be said that she abused her discretion in denying [mother's] request for appointment of substitute counsel.” The State does not address the merits surrounding the relinquishment of mother's parental rights, but instead maintains that mother “violated Supreme Court Rule 6.02(a)(4) by alleging facts not in the record on appeal.”
Generally, the decision on whether an indigent defendant's dissatisfaction with his or her court-appointed counsel warrants appointment of new counsel is left to the discretion of the trial court. State v. Smith, 291 Kan. 751, 755, 247 P.3d 676 (2011). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767(2011).
‘ “To warrant the appointment of new trial counsel, a defendant must show ‘justifiable dissatisfaction’ with his or her appointed counsel. ‘Justifiable dissatisfaction’ may be demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney.' “ [Citation omitted.]” Smith, 291 Kan. at 755 (quoting State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 [2006] ).
To establish justifiable dissatisfaction, the defendant must point to specific facts that demonstrate a conflict of interest, irreconcilable conflict, or a complete breakdown in communications. See McGee, 280 Kan. at 896. Mother carries the burden to show that the trial court abused its discretion. State v. Bryant, 285 Kan. 970, Syl. ¶ 13, 179 P.3d 1122 (2008) (“A trial court's refusal to appoint new counsel is reviewed under an abuse of discretion standard, which asks whether any reasonable person would take the view adopted by the trial court. The burden is on the party alleging the abuse.”).
Nevertheless, our Supreme Court has stated that a trial judge who becomes aware of a possible conflict of interest between an attorney and client must inquire and the failure to do so can require reversal. State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007). To determine whether to appoint new counsel, the trial court must conduct some sort of investigation. State v. Sappington, 285 Kan. 158, 169, 169 P.3d 1096 (2007). This is so that the trial court has a reasonable basis for deciding whether the attorney-client relationship had deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense. State v. Ferguson, 254 Kan. 62, 70, 864 P.2d 693 (1993).
Several Kansas cases indicate that this duty to investigate requires the trial court to fully hear the defendant's complaints and defense counsel's responses. For example, in Sappington, our Supreme Court found “the court satisfied this requirement by fully hearing Sappington's complaints, both at the motion hearing and certainly the trial, and fully hearing his counsel's responses.” 285 Kan. at 169. See also, e.g., State v. Hampton, No. 90,114, 2004 WL 2659039, at *2 (Kan.App.2004) (unpublished decision) (noting trial court allowed defendant to voice all complaints where defendant given opportunity at each motion hearing to state concerns and present evidence, trial court inquired about specific allegations raised, and trial court determined that such claims were without legal merit.) Similarly, our Supreme Court found in Bryant, 285 Kan. at 991, that the trial court satisfied its requirement to inquire into the defendant's request to appoint new counsel by, at two separate hearings, asking open-ended questions of the defendant to learn everything that was bothering him, fully hearing his complaints, and fully hearing defense counsel's responses.
Before we can address the trial court's denial of mother's request for replacement counsel, we note that mother is raising an issue on appeal which was not raised before the trial court. To begin with, mother contends that her relinquishment of parental rights was involuntary in part because she was coerced into signing the relinquishment based on her belief that the State would remove her other children unless she signed the relinquishment. Mother raises this relinquishment argument for the first time on appeal. As a general rule, an appellate court will not consider arguments raised for the first time on appeal. In re S.M.H., 33 Kan.App.2d 424, 429, 103 P.3d 976,rev. denied 279 Kan. 1006 (2005). There are, however, exceptions to this rule.
Three exceptions to the general rule that appellate courts will not consider arguments raised for the first time on appeal read as follows: (1) where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) where considering questions raised for the first time on appeal is necessary to serve the ends of justice or to prevent a denial of fundamental rights; and (3) where the judgment of the trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 311, 75 P.3d 1222 (2003). Parents have a fundamental right under the Fourteenth Amendment to the United States Constitution to make decisions concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Thus, we will review mother's challenge to her voluntary relinquishment of parental rights under the second exception of the before mentioned exceptions.
When a parent decides to relinquish his or her parental rights, K . S.A.2012 Supp. 38–2268(b)(3) requires the following:
“The relinquishment shall be in writing and shall be acknowledged before a judge of a court of record or before an officer authorized by law to take acknowledgments. If the relinquishment is acknowledged before a judge of a court of record, it shall be the duty of the court to advise the relinquishing parent of the consequences of the relinquishment.”
Therefore, the central question for us to determine is whether there is a sufficient record to support a finding that mother's relinquishment of her parental rights was voluntarily made.
The trouble with the trial court's course of action here is that it had been put on notice that there was a potential conflict between mother and her counsel. For example, the trial judge asked mother when she decided she needed a new attorney? Mother replied that she had only learned of her options in the past 48 hours. The trial judge stated that “I find that impossible to believe.” When mother's attorney advised the trial judge that mother had attempted to contact the court, the trial judge seemed to disagree. The trial judge then noted that mother's attorney had been appointed when the matter began in July 2011.
The record reflects that the trial court made no further inquiry of mother or her attorney as to the nature and extent of the breakdown in communication and why the mother wanted another attorney. As mentioned earlier, our Supreme Court has stated that “[a] trial court abuses its discretion if it fails to inquire further after becoming aware of a potential conflict between an attorney and his or her client.” State v. Vann, 280 Kan. 782, Syl. ¶ 1, 127 P.3d 307 (2006). In Vann, the trial court judge failed to inquire after the defendant specifically and repeatedly complained of a conflict with counsel before and after trial. Our Supreme Court ruled that the trial court judge abused his discretion in failing to inquire about a possible conflict. 280 Kan. at 792. Because the trial court should have inquired further when presented with information that there was a conflict of interest between mother and her counsel, the record is unclear whether the attorney-client relationship had deteriorated to a point where appointed counsel could no longer give effective aid in the fair presentation of mother's defense against terminating her parental rights.
The trial judge could have alleviated the uncertainty surrounding mother's relinquishment by inquiring further after it was put on notice of the alleged conflict between her and counsel, but the trial judge failed to do so. Moreover, before the trial judge granted mother's counsel's request for a short recess, the judge denied her request for the appointment of substitute counsel, which was based on the alleged breakdown in communication between appointed counsel and mother.
This course of action was problematic because the trial judge allowed mother's counsel to inform mother about the consequences of relinquishing her parental rights even though the trial judge had become aware that a potential conflict existed between mother and appointed counsel. Although mother carries the burden to establish justifiable dissatisfaction with appointed counsel, the trial judge had a duty to inquire about the possible conflict. Moreover, the failure to inquire is an abuse of discretion. Thus, mother's reliance on appointed counsel after there was a known potential conflict makes mother's voluntary relinquishment of her parental rights suspect.
Moreover, a trial court may terminate a parent's parental rights only after the State has met its burden by clear and convincing evidence. K.S.A.2012 Supp. 38–2269(a). Clear and convincing evidence requires the factfinder to conclude that “the truth of the facts asserted is highly probable.” In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 (2008). The clear and convincing evidence must show that “the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” K.S.A.2012 Supp. 38–2269(a).
In this case, it is unclear whether mother was adequately informed about the consequences of her relinquishment. Based on the mother's efforts to comply with her reintegration plan, there is a possibility that she would have gone to trial and required the State to prove by clear and convincing evidence that her parental rights should be terminated. Indeed, at mother's April 2, 2012, reintegration hearing, mother's counsel stated that mother had made substantial progress under the terms of the reintegration plan. For instance, mother had found gainful employment, had continued to test negative for illegal drugs, had found transportation to and from work, and had been making progress on the remaining tasks to reintegrate the child into her home.
Without a sufficient record, we cannot determine that the relinquishment of mother's parental rights was voluntarily made. Our court reached the same conclusion under similar circumstances in In re C.P., 2012 WL 3000381, at *5 (“Without any findings of fact and conclusions of law we are unable to address the critical issue of the voluntariness of the waiver of parental rights on the present record. Accordingly, we remand for appointment of counsel and, in order to assure both parties of a fair and impartial evidentiary hearing on Father's allegations, a new district court judge should be assigned to preside over this hearing.”). Accordingly, we reverse and remand with directions for an evidentiary hearing to determine whether mother's relinquishment was voluntarily made. We further direct that new counsel be appointed for mother and that a different judge be assigned to preside over the evidentiary hearing.
Reversed and remanded with directions.