Opinion
No. 107,256.
2012-10-5
In the Interest of J.B. A Female Child Under the Age of 18 Years.
Appeal from Johnson District Court; Kathleen Sloan, Judge. Jeffrey Leiker, of Leiker Law Office, P.A., of Overland Park, for appellant mother. Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee State of Kansas.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
Jeffrey Leiker, of Leiker Law Office, P.A., of Overland Park, for appellant mother. Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee State of Kansas.
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mother appeals the district court's finding that her child, J.B., was a child in need of care. She argues the court violated her due process rights by entering the child in need of care (CINC) adjudication more than 60 days after the filing of the petition and that the State failed to prove by clear and convincing evidence that J.B. was a child in need of care. We affirm.
The State filed a CINC petition on June 21, 2011. The day the initial petition was filed, the district court held a temporary custody hearing at which Mother appeared in person and through her attorney. After finding that she lacked adequate housing, had mental health issues, J.B. had tested positive for methadone and amphetamine at birth, and Father was not an approved placement based on his progress in J.B.'s sibling's case, the court placed J.B. in the custody of the Kansas Department of Social and Rehabilitation Services (SRS).
The State filed an amended petition on July 1, 2011. At an adjudication hearing on July 6, 2011, the district court found that J.B.'s siblings, Z.B. and A.B., were children in need of care, and ordered a 6–month reintegration plan for Mother. The court continued the first appearance in J.B.'s case until July 27, 2011, at the request of Mother's attorney.
The State filed a second amended petition on July 14, 2011. The first appearance was again continued until August 15, 2011, because the guardian ad litem and Mother were ill. At the first appearance, Mother entered a general denial and the district court set the adjudication hearing for November 3, 2011.
At the adjudication hearing, the State called the caseworkers assigned to J.B.'s case as witnesses, and Mother testified on her own behalf.
Janice Farrell with SRS testified that J.B.'s siblings were the subject of previous CINC cases due to concerns about Mother's home (no utilities) and mental health (suicidal comments). The hospital contacted SRS because J.B. was born with drugs in her system and Mother was behaving erratically. Farrell met with Mother, Father, and J.B.'s paternal grandmother at the hospital. Mother told Farrell that she had mental health issues, “[h]er home was not suitable for the baby and she wasn't sure where she was going to be staying,” the electricity had been off for 2.5 weeks, the gas service had been off for at least 2 months, and the water bill had been extended and was due at the end of the week. Father was concerned about Mother's drug addiction and methadone use, which caused her to sleep for 2 to 3 days and inflict wounds on her arms and legs. J.B.'s paternal grandmother was concerned about Mother's substance abuse, methadone use, and erratic behavior—she had screamed at Father accusing him of trying to take J.B. away, threatened to remove him from the birth certificate, and threatened to jump off the nearest bridge.
Farrell concluded that J.B. was a child in need of care because her siblings had been the subject of three CINC petitions, and Mother did not have home utilities, could not provide for basic needs, had mental health issues, and displayed erratic behavior at the hospital.
On cross-examination, Farrell admitted that Mother reported taking prescribed Adderall and Methadone during her pregnancy under the care of Dr. James Hunter. Farrell also admitted to investigating Mother's residence in December 2010, finding an allegation of child abuse or neglect to be unsubstantiated, and recommending at the temporary custody hearing that J.B.'s siblings be placed with Mother.
Emily Morgan with the Kaw Valley Center (KVC) testified that she was working on J.B.'s siblings' CINC cases at the time J.B. was born. Mother had made minimal progress on J.B.'s siblings' reintegration plan as of J.B.'s birth—she was not participating in individual or behavioral therapy and had no utilities, employment, or income. Mother was not an appropriate placement for newborn J.B. because she had no means of supporting her (e.g., no food stamps, WIC, transportation, employment), no utilities at her home, and had not been participating in mental health services or therapy. Mother had made substantial progress since J.B.'s birth—prior to her incarceration, she had been participating in individual, family, and behavioral therapy, had enrolled in a parenting class, and had secured water and electric service at her home.
Morgan concluded that J.B. was a child in need of care because Mother had been incarcerated for over 2 weeks after a probation violation, had failed to provide her probation officer's contact information, had no gas service at her home despite efforts to secure it, lacked the ability to provide for J.B., had mental health and stability issues, and had failed to follow through with provided services.
On cross-examination, Morgan admitted that Mother had reported searching for employment, applying for disability, food stamps, and cash assistance, securing transportation from family members, and arranging for her moped to be repaired. Morgan also admitted that Mother independently sought assistance from Vocational Rehabilitation Services (VRS) and had been participating in behavioral therapy to treat her borderline personality disorder, and her incarceration had stemmed from nonpayment of fines. Morgan further stated that because Mother had been very concerned about her bond with J.B., Morgan had increased visitation to Mondays, Thursdays, and Sundays from 10 a.m. to 6 p.m. Finally, Morgan noted that Mother had been argumentative with and had sent inappropriate text messages to Father and J.B.'s paternal grandmother, with whom J .B. was currently placed.
Mother testified that she took Adderall and Methadone while she was pregnant with J.B. at the direction of her OBGYN, Dr. Brendan Mitchell, and Dr. Simon from the methadone clinic. She had contact with J.B. every day during J.B.'s hospitalization for methadone treatment. The small blisters on her arms were not self-inflicted and the dermatologist had been unable to diagnose them. She had not violated any visitation rules and had only missed one visit with J.B. She told Farrell that her home was not suitable for newborn J.B. because the carpet had been ripped out but she and J.B. could have stayed with her grandmother until the new carpet was installed.
Mother further testified that securing employment was the only unfinished task in her reintegration plan—she completed her psychological evaluation, was participating in individual, behavioral, and family therapy and parenting classes, planned to appeal her initial disability denial, was receiving food stamps, and was planning to go back to school in the spring to get her paralegal certificate, while her father was paying her utilities, and her grandmother and aunt were paying to fix her moped and teeth. She had been incarcerated because she had not paid outstanding fines and could not post bond, and if she were to be incarcerated again, her family members would keep her children as they had in the past. She had consistently asked for increased visitation with J.B. and had concerns about their ability to bond.
Finally, Mother testified that she felt as though she could care for J.B.—she had adequate housing, a crib, bassinet, swing, and highchair, had no concerns about being able to provide food, clothing, diapers, and medical care, her father and grandmother would provide transportation, and VRS would pay for daycare during school hours. She was still taking methadone but would be weaned off it once she returned to school and got her family back together. And she claimed that the gas service at her home had been turned on the previous week, but she failed to provide proof of payment.
At the close of evidence, the district court found that J.B. was a child in need of care under K.S.A.2011 Supp. 38–2202(d)(1) and (2). The court also ordered a 2–month reintegration plan for J.B. and gave SRS and KVC authority “to place J.B. in the home of either parent when deemed socially appropriate.” Mother timely appeals.
Mother argues she was prejudiced by the district court's adjudication of J.B.'s CINC case beyond the 60–day statutory period without good cause. Specifically, she claims she was deprived of her right to custody, care, and control of her child without due process of law. The State counters that the appellate court should not hear this issue for the first time on appeal, and, alternatively, Mother was not prejudiced by the delay.
The parties agree that the appellate court has unlimited review over this issue. “Interpretation of a statute and determination of jurisdiction are questions of law over which this court's scope of review is unlimited.” State v. Sales, 290 Kan. 130, 134, 224 P .3d 546 (2010).
The Revised Kansas Code for Care of Children (RKCCC) authorizes a district court to enter an order of temporary custody “as will best serve the child's welfare;” such orders “remain in effect until ... an adjudication order is entered but not exceeding 60 days, unless good cause is shown and stated on the record.” K.S.A.2011 Supp. 38–2243(a), (g)(2). The RKCCC also empowers courts to enter an order “adjudicating the child to be a child in need of care” and such final adjudications “shall be entered within 60 days from the date of the filing of the petition, unless good cause for a continuance is shown on the record.” K.S.A.2011 Supp. 38–2251(b), (c).
The court in In re L.C.W., 42 Kan.App.2d 293, 297, 211 P.3d 829 (2009), held that the 60–day period of K.S.A.2008 Supp. 38–2551(c) is directory rather than mandatory. But more importantly, the court agreed that prejudice should be considered and warned that noncompliance may not be excused “where the order is entered substantially beyond the statutory constraint and prejudice is shown.” 42 Kan.App.2d at 298. The court ultimately found that prejudice had not been shown in part because “some of the delay was caused by failure of mother ... to appear for adjudication hearings.” 42 Kan.App.2d at 297.
The State's argument that we should not hear this issue for the first time on appeal fails for two reasons. One, the L.C.W. court framed noncompliance with K.S.A. 38–2551(c) as a jurisdictional issue, and a court's subject matter jurisdiction may be challenged at any time. 42 Kan.App.2d at 295;Sales, 290 Kan. at 135. And two, an exception to the general rule that issues cannot be raised for the first time on appeal is “consideration of the claim is necessary to ... prevent the denial of fundamental rights.” State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). This issue involves a parent's right to the custody, care, and control of his or her child, which is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution. In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) (citing Troxel v. Granville, 530 U.S. 57, 65–66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and Sheppard v. Sheppard, 230 Kan. 146, 152, 630 P.2d 1121 (1981), cert. denied455 U.S. 919 [1982] ). “That right, however, is not absolute. The welfare of children is a matter of State concern. [Citation omitted.] Before a parent can be deprived of [his or] her right to the custody, care, and control of [his or ] her child, he or she is entitled to due process of law.” In re J.D.C., 284 Kan. at 166.
We are, however, be persuaded by the State's argument that Mother was not prejudiced by the delayed CINC adjudication. To reach its holding that K.S.A. 38–2551(c) is directory, the L.C.W. panel followed this reasoning:
“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 [KCCC] 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. The legislature has provided no remedy where the time limits were transgressed. The father has not shown his rights were prejudiced by the delay or that it is in the interests of the child that the case be dismissed. We find the trial court did not err in refusing to grant the father's motion to dismiss.” In re B.H., 32 Kan.App.2d 12, 18, 80 P.3d 396 (2003).
See K.S.A. 38–2201(b)(2) (RKCCC must also be liberally construed to ensure child receives custody that best serves child's welfare and State's interests).
This case is similar to In re L.C.W. in three ways. One, both adjudications were scheduled beyond the 60–day period—J.B.'s adjudication order was entered on November 3, 2011, 135 days after the original CINC petition was filed, and L.C.W.'s was entered 148 days after his removal. (The prior version of K.S.A. 38–2251(c) required adjudication within 60 days of child's removal from home.) Two, both children were under 1 year old at the time they were removed from parental custody—J.B. was a newborn and L.C.W. was 4 months old. And three, both mothers caused the CINC proceedings to be delayed—J.B.'s mother's first appearance was continued once at her attorney's request and once because she was ill, and L.C.W.'s adjudication was continued due to his mother's failure to appear.
Here, Mother claims the delay prevented her from bonding with J.B, which greatly increased the likelihood of reintegration problems. This allegation of prejudice is not supported by the record. Mother testified that she had contact with J.B. every day of her hospitalization and had only missed one visitation session, and the KVC caseworker testified she had increased Mother's visitation to 8 hours, 3 days a week. Mother also testified she had completed all but one of the tasks in J.B.'s siblings' reintegration plan.
Therefore, we find the district court did not violate Mother's due process rights by failing to enter the CINC adjudication within 60 days after the filing of the petition.
Next, Mother argues that the district court did not have enough evidence to adjudicate J.B. a child in need of care. Specifically, she claims the court lacked sufficient evidence of the effect that her drug abuse, serious mental health issues, lack of utilities, and minimal progress on J.B.'s siblings' reintegration plan would have on J.B.
When an appellate court reviews a district court's determination that a child is in need of care, “it should consider whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that the child was a CINC.” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). Clear and convincing evidence is “an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt.” 286 Kan. at 691. In reviewing a CINC ruling, we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
The CINC definitions relevant to this case are a person less than 18 years of age who “[i]s without adequate parental care, control or subsistence and the condition is not due solely to the lack of financial means of the child's parents or other custodian,” or “is without the care or control necessary for the child's physical, mental or emotional health.” K.S.A.2011 Supp. 38–2202(d)(1), (2). The State must prove by clear and convincing evidence that a child is a child in need of care. K.S.A.2011 Supp. 38–2250.
Here, the district court was presented with a broad range of testimonial evidence to support a finding that J.B. was without adequate parental care and the care necessary for her health at the time the CINC petition was filed, Farrell of SRS provided evidence that at the hospital after giving birth to J.B., Mother behaved erratically, made suicidal comments, admitted she had no gas or electric service at her home, and was struggling to pay her water bill. Farrell also provided evidence that J.B.'s siblings were the subject of CINC petitions alleging the same problems. Morgan of KVC provided evidence that as of J.B.'s birth, Mother had no utilities, employment, or income, and had not been participating in therapy, all of which was required by J.B.'s siblings' reintegration plan. Morgan also provided evidence that since J.B.'s birth, Mother had secured water and electric but not gas service, and had been incarcerated for 2 weeks. Finally, Mother provided evidence that she was unemployed and her disability application had been denied. Mother also failed to provide proof that she had secured gas service.
Upon review of all the evidence in the light most favorable to the State, we find that a rational factfinder could have found it highly probable that J.B. was a child in need of care.
Affirmed.