Opinion
No. 106,758.
2012-07-20
In the Interest of C.P., Date of Birth 07/10/20XX, and E.P., Date of Birth 07/29/20XX, Minor Children.
Appeal from Johnson District Court; Kathleen L. Sloan, Judge. Dennis J. Stanchik, of Olathe, for appellant natural father. Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Appeal from Johnson District Court; Kathleen L. Sloan, Judge.
Dennis J. Stanchik, of Olathe, for appellant natural father. Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
L.P., as natural father (Father), relinquished his parental rights to C.P. and E.P., which resulted in the termination of those rights. He then filed a pro se pleading alleging the relinquishment was involuntary due to ineffective assistance of appointed counsel. The district court allowed Father's appointed counsel to withdraw and refused to appoint substitute counsel. Father has now retained counsel and appeals, claiming he was denied due process by this refusal. We reverse and remand.
Factual and Procedural History
In August and September 2010, the State of Kansas filed petitions in separate cases alleging C.P. and E.P. were children in need of care. The petitions stated that Father was incarcerated. In October 2010, Father appeared in person with his appointed counsel, Tobi M. Bitner, for a child in need of care hearing. Father stipulated that both children were in need of care.
In November 2010, the State moved for a finding of unfitness and termination of Father's parental rights. For reasons not shown on the record, the district court allowed Bitner to withdraw and then appointed Brian C. Paden as Father's counsel. The district court's appearance docket suggests this change occurred in early January 2011.
The termination of parental rights trial set for February 2, 2011, was continued to March 9, 2011. On the day of trial, Father appeared with Paden in the chambers of Judge Kathleen Sloan. Paden informed Judge Sloan that given the “non-plausibility” of a continuance, he had discussed with Father “the possibilities that are out there.” Paden stated his client “understands he has a right to a trial, and he's giving up that right to a trial with the understanding that ... he would not be found to be an unfit parent by signing off on this document.”
The document was apparently a parental relinquishment form. It is not in the record on appeal. The record also does not contain a journal entry of termination, and a review of the district court's appearance docket did not reference the filing of such a journal entry.
Paden told Judge Sloan, “There is no guarantee that [Father] is going to have visits with his children after this.” Paden said Father's “belief is that it's better that he not become an unfit parent, and he understands that his incarceration can be used against him to terminate his parental rights, and the unforeseeability of the future could be a problem.” Paden stated that Father understood “that by signing off on this document, it is a permanent agreement to the relinquishment of his parental rights.”
Judge Sloan told Father she was “not going to repeat what your attorney just said.” Instead, she asked whether Father had “any quarrel with what [your attorney] just put on the record.” Father answered no but still asked “for a continuance for possibly 30 days because I have corresponded with my attorney in Missouri ... to get me taken to Missouri so I could get Missouri resolved, which I believe that they will probably run my time concurrent.” Acknowledging “there is [ sic ] no guarantees,” Father represented that if the Missouri sentences were run concurrently with the Kansas sentence, “then I will be out in May, and then I could possibly start the reintegration.” Father explained that since his exact release date was “unknown,” it was a “huge hindrance,” and that he had decided “to sign over my rights, reluctantly. But a little bit of hope is better than none.”
Both Paden and Judge Sloan mentioned adoption, stating for example that the children could be adopted after relinquishment. Father repeated in this context that he was signing because “any hope is better than none,” and because he wished “to create a relationship with [the potential adoptive parents so] they will permit me to possibly have some kind of contact with my children.” Judge Sloan informed Father that contact would depend on the decisions of the Department of Social and Rehabilitation Services (SRS) and the adoptive parents. Father said he understood.
Nevertheless, Father repeated his request for a continuance. Judge Sloan explained that she needed to consider the children's best interests and denied the request. Father then signed certain forms placed before him, which are again not in the record. Judge Sloan made a note in the appearance docket finding Father had “tendered both documents willingly and voluntarily, and with the advice of counsel.”
On April 5, 2011, Father filed a pro se document entitled “Notice of Appeal.” Instead of giving notice of an intent to appeal, however, Father wrote that “[a]fter speaking with other counsel and having opportunity to use a law library [his] rights have clearly been violated by court appointed counsel and SRS.” He alleged:
“Due to Court Appointed [Counsel], being ineffective ... [Father] has given all his parental rights away when clear his intent was only to give temporary gaurdianship [ sic ] over. This was only to be a temporary solution until he had resolved his other court obligations.
“Finally, [Father] states that he was clearly duped, cheated, lied to, and out right maliciously mislead [ sic ] by his Court Appointed Counsel. [Father] has attempted to maintain appropriate contact for his children; showing that temporary gaurdianship [ sic ] was clearly his intent and not to severe [ sic ] his parental rights in whole. [Father] has ... great concern for the welfare of his children and requests a hearing on such matter as it is necessary, with new court appointed counsel....
“We formally pray that a hearing be set on this matter for review and that the case be reopened.”
Eight days later, on April 13, 2011, Paden moved to withdraw because of “a conflict between counsel and client.” Paden did not file proof of service of this motion on Father or on the State's counsel as required by Supreme Court Rule 117 (2011 Kan. Ct. R. Annot. 208).
On April 27, 2011, Father appeared pro se before Judge Sloan. Judge Sloan said Father and the other parties were appearing at her request because Paden “has filed a motion to withdraw, but he just filed a motion to withdraw. It's not set for hearing today, and there is no certificate of service on it.” Judge Sloan asked her administrative assistant “to serve [Father] right now with that motion to withdraw.” The judge then said that since Father had “signed a relinquishment of ... parental rights,” Paden “can now technically be relieved as counsel.”
Judge Sloan informed Father, “If you are going to appeal, following a relinquishment of your parental rights, I have no one to appoint for you.” She advised that because he had filed a notice of appeal with the Court of Appeals, “[t]hat would be where you would raise that issue if you want to question counsel.” The judge concluded, “[I]t's up to you if you want to file an appeal. There is nothing more that I can do right now as far as Mr. Paden is concerned. In fact, I am going to relieve him as counsel because you have signed a relinquishment.”
Father persisted, “I thought that I would possibly be assigned new counsel today, seeing as Mr. Paden is ineffective.... I mean, due process, I don't believe, was even done during my case with my [children].” The judge repeated, “I do not believe at this juncture that you are entitled to yet another court-appointed attorney to help you with an appeal.” The judge, noting the appeal had not been docketed, said, “We simply have to watch and wait and see when that gets docketed.” No journal entry of this hearing was filed at that time.
Several days later, on May 6, 2011, Father filed another pro se “Notice of Appeal.” Unlike his earlier notice of appeal, Father now gave notice of his intent “to appeal the decision in the above captioned case number decided by the Honorable Judge Sloan” to “the Court of Appeals for the State of Kansas.” On May 20, 2011, Father filed a pro se motion to proceed in forma pauperis. On the same day, he filed a pro se motion for extension of time to docket his appeal. As with his other filings, Father filed the motions in the district court.
In his motion for extension of time to docket his appeal, Father reprised his earlier request for counsel to challenge “the unethical practices of his ‘court appointed’ counsel and violation of his 14th Amendment rights to Due Process.” Father pointed out that he “is not a trained legalee [ sic ].” He alleged he was due “to be released from [the] Johnson County Adult Detention on May 30, 2011 in which he will have an opportunity to atempt [ sic ] to secure counsel for this appeal process.” Father also said mail was delayed in the jail, “making it impossible to meet the deadlines set forth in these proceedings.” Finally, he alleged that he “has another legal matter which currently has a detainer on him from Webster County, Missouri.” Father concluded:
“[Father] is requesting 90 days from May 27th, 2011 to secure all the information necessary for the filing of the Docketing Statement and proceeding forward with his appeal.... [Father] also request [ sic ] that broad discretion be applied in his favor due to not being a trained legalee [ sic ]. Due to [Father's] indigency status, if appointed counsel is possible I would request such to expedite this matter.”
On June 8, 2011, the guardian ad litem for the children moved to dismiss because Father had “failed to file the Docketing Statement necessary for an appeal in this matter.” On June 30, 2011, Judge Sloan heard the motion. Father did not appear personally, but his mother said that she appeared on his behalf because he was still incarcerated.
The guardian ad litem related her “understanding through grandma, who is here today, that she filed the docketing statement for him today, well out of time allowed for within the appellate procedures.” Father's mother apparently had filed the docketing statement in the district court. Judge Sloan explained to Father's mother that docketing statements are filed with the Court of Appeals in Topeka.
Judge Sloan also said she would not consider Father's motion for extension of time to docket the appeal, because “[i]t would be up to the Court of Appeals to rule on whether or not a docketing statement could be filed out of time.” Nevertheless, the judge dismissed the appeal because “the docketing statement filed today was filed with the Clerk of the District Court here in Johnson County and ... does not appear to have been filed with the Court of Appeals.” Shortly thereafter, on July 5, 2011, the journal entry dismissing the appeal was filed.
On August 2, 2011, Dennis J. Stanchik, retained counsel for Father, entered his appearance. On the same date, Stanchik filed a notice of appeal from the July 5, 2011, journal entry which dismissed the appeal. Stanchik then filed a “Motion to Settle Journal Entry.” Counsel sought a journal entry “reflecting the Court's decision of April 27, 2011 allowing [Father's] appointed counsel to withdraw and declining to appoint substitute counsel.”
On August 22, 2011, Judge Sloan filed a journal entry stating:
“On June 30, 2011 this Court took up the matter of the motion to withdraw filed by Brian Paden, attorney for [Father]. Having considered the motion and having considered the comments of [Father], the Court hereby grants the motion to withdraw. Mr. Paden is relieved of any further responsibility in this case.
“Mr. Paden is the second attorney appointed to represent [Father]. The Court has twice found that [Father] has willingly and voluntarily relinquished his parental rights. Under these circumstances, the Court declines to appoint a new attorney for [Father].”
The following day, August 23, 2011, Stanchik filed an amended notice of appeal from both the July 5, 2011, journal entry dismissing the appeal and from the August 22, 2011, journal entry allowing Paden to withdraw and refusing to appoint new counsel. The district court consolidated the matters for appeal.
Analysis
Our first question is jurisdiction. The State argues a “voluntary relinquishment is an unappealable ruling.” Appellate jurisdiction is a question of law subject to unlimited review. See Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
A relinquishment of parental rights must be “in substantial conformity with the form for relinquishment contained in the appendix of forms following K.S.A. 59–2143.” K.S.A.2011 Supp. 38–2268(b)(2). “Except as otherwise provided, in all cases where a parent has relinquished a child to the agency pursuant to K.S.A. 59–2111 through 59–2143 ... all the rights of the parent shall be terminated.” K.S.A.2011 Supp. 38–2268(b)(4). In the present case, after Father signed the relinquishment of parental rights, the district court ordered termination of those rights. Kansas law provides that “[a]n appeal may be taken by any party ... from any ... termination of parental rights.” K.S.A.2011 Supp. 38–2273(a). Under these circumstances, the voluntary relinquishment which resulted in the termination of parental rights provides our court with jurisdiction to review the matter on appeal.
Father seeks a “remand [of] this case to the District Court with instructions to appoint counsel for [Father] for the purpose of allowing [him] to question the validity of his voluntary relinquishment of parental rights.” The question presented for our review is, therefore, whether Judge Sloan properly denied Father substitute appointed counsel for this purpose. Of course, Father does not challenge Paden's withdrawal because he was alleging ineffective assistance of counsel. See State v. Toney, 39 Kan.App.2d 1036, 1043–44, 187 P.3d 138 (2008).
Appointment of counsel in termination of parental rights proceedings is subject to statute in Kansas, and our review of statutory interpretation is unlimited. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
Kansas law provides: “If 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.” K.S.A.2011 Supp. 38–2205(b)(l). In the present case, although Father initially captioned his pro se pleading as a “Notice of Appeal,” a fair reading of the content of the pleading makes clear that he was seeking relief from the final judgment or order of the district court because he asserted he was “duped, cheated, lied to, and outright maliciously mislead [ sic ] by his court appointed counsel.” These claims seem particularly well suited to be first addressed by the district court under K.S.A.2011 Supp. 60–260(b)(3) and (6) after an evidentiary hearing.
Under the plain language of K.S.A.2011 Supp. 38–2205(b)(l) and the unique circumstances of this case, we believe the statute granted Father a right to counsel to challenge the voluntariness of his relinquishment of parental rights. See In re T.M.C., 26 Kan.App.2d 297, Syl. ¶ 6, 988 P.2d 241 (1999) (applying former version of the statute). In arriving at this determination, we are persuaded that Father's allegations are not frivolous and involved issues of fundamental rights. See K.S.A.2011 Supp. 38–2268(b)(4); In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007).
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.
Reversed and remanded with directions.