Opinion
Nos. 106,561 106,562.
2012-06-29
In the Interest of J.W. and J.T.W.
Appeal from Johnson District Court, Kathleen Sloan, Judge. John W. Leighty, of Olathe, for appellant natural mother. Steven J. Obermeier, assistant district attorney, for appellee.
Appeal from Johnson District Court, Kathleen Sloan, Judge.
John W. Leighty, of Olathe, for appellant natural mother. Steven J. Obermeier, assistant district attorney, for appellee.
Before MARQUARDT, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The natural mother of J.W. and J.T.W. (Mother) appeals the termination of her parental rights. The proceedings at issue terminated the parental rights of both Mother and Father. Father has not appealed, so we will consider the record only from Mother's perspective.
At the time of his birth on October 5, 2009, J.W. tested positive for cocaine. After a claimed 2 1/2–year hiatus, Mother said she started using cocaine again a month before the baby was born. The State began providing family preservation services to Mother. Though Mother was in a physically violent relationship with the child's father and moved out after an altercation in April 2010, she returned to live with Father later that month. Meanwhile, Mother tested positive for marijuana, and Debra Brown, Mother's mother, reported that she observed Mother, who was about age 20 at the time, shaking the baby to stop him from crying. Leanne Arnold, Mother's case manager, later testified that before these incidents “it was reported that [Mother] had had short times where she was sober.”
In May 2010, the State initiated child in need of care (CINC) proceedings. J.W. was placed with Brown, his grandmother. Mother stipulated that J.W. was a CINC, and on August 5, 2010, the district court found that the child was in need of care. Mother was offered a 60–day reintegration plan with the understanding that if Mother made significant progress toward reintegration, the court would be willing to extend the plan. Mother did not sign the reintegration plan. The reintegration plan was scheduled to end October 5, 2010. It was clear at that time that J.W. was not ready to leave his grandmother and be returned to Mother's custody. Mother had not completed her reintegration tasks, she did not have a home, and she was involved in domestic violence and drug use. Case manager Arnold later testified at trial that throughout the case Mother “had temporary periods of sobriety.”
Mother was pregnant at the time the reintegration plan expired. On November 8, 2010, J.T.W. was born. J.T.W., like his older brother, was born with cocaine in his system and went through withdrawal symptoms. That same day the State petitioned to have J.T .W. declared a CINC. Three days later, the State amended its petition to ask for the termination of Mother's parental rights.
Throughout these proceedings both children were placed with Debra Brown, their maternal grandmother. If Mother's parenting rights to these boys were to be terminated, Brown was willing to serve as a permanent placement option for her grandsons.
In late November 2010, Mother relinquished her parental rights to J.W., but she desired a trial on the claims involving J.T.W. Mother later changed her mind about J.W. and moved to withdraw her relinquishment of parental rights to J.W. The court granted her motion on March 9,2011.
The cases involving both sons went to trial on March 24, 2011. In its June 18, 2011, memorandum decision the court found that Mother had not made progress on her reintegration plan and reintegration was not a viable option. The court found Mother to be unfit as a parent, and her condition of unfitness was unlikely to change in the foreseeable future. J.W. had been in the State's custody half his life, and J.T.W. had been in State custody since he was 4 days old, waiting for Mother to assume her proper parental role. The court found that it was now in the children's best interests to terminate Mother's parental rights and did so. Mother appeals. Ineffective Assistance of Counsel Claim
For the first time on appeal, Mother argues that she was denied the effective assistance of trial counsel. The State argues that our jurisdiction on appeal is limited to claims raised in the notice of appeal, citing State v. Ehrlich, 286 Kan. 923, 926, 189 P.3d 491 (2008). Mother recognizes the general rule that issues not raised before the trial court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009). This includes claims of ineffective assistance of counsel. Trotter v. State, 288 Kan. 112, 127–28, 200 P.3d 1236 (2009). Mother suggests that State v. Van Cleave, 239 Kan. 117, 119–20, 716 P.2d 580 (1986), provides a mechanism for considering her claim. She asks that we either consider the claim directly or remand the case to the district court for an evidentiary hearing on the merits of her claim.
In the direct appeal of his conviction for taking aggravated indecent liberties with a child, the defendant in Van Cleave claimed for the first time that his trial counsel had been ineffective. The Supreme Court stated that the procedure adopted in State v. Shepherd, 232 Kan. 614, 657 P.2d 1112 (1983), for remanding the case to the district court for a hearing on a claim of newly discovered evidence to support a motion for a new trial “is equally applicable to a claim of ineffective assistance of counsel which arises after the district court has lost jurisdiction of the case pending appeal.” Van Cleave, 239 Kan. at 120. In adopting this remand procedure, the court cited the following caveat in Shepherd.'
‘ “The granting of such a motion is not a matter of right which accrues in every case merely by filing a motion seeking remand. While the statutes are silent on procedural standards, better practice suggests that a defendant seeking to have a case remanded from the appellate courts should set forth with some specificity sufficient details of the evidence to be presented to the district court in support of the motion for new trial so the appellate court may determine in the first instance whether there are valid grounds to expect that a new trial might be granted by the trial court. The appellate courts cannot be expected to operate in a vacuum and grant every motion to remand a case already on appeal absent a showing that the motion for new trial has merit and is not frivolous or an attempt to delay the appellate process.’ [Citation omitted.]” Van Cleave, 239 Kan. at 120.
The court in Van Cleave then noted:
“[I]t is incumbent upon appellant's counsel to do more than read the record and then determine that he or she would have handled things differently. In the instant case, appellate counsel admitted in argument that no attempt had been made to determine the circumstances under which trial counsel did or did not proceed as appellate counsel thought preferable. The defense attorney was not contacted nor was the prosecutor which would seem to be the minimum investigation to lodge a charge of ineffective assistance of counsel unless the conduct is so blatant that it is obvious from the record. Except in the most unusual cases, to assert a claim of ineffective assistance of counsel without any independent inquiry and investigation apart from reading the record is questionable to say the least.” 239 Kan. at 120–21.
Of course, the Van Cleave remand procedure was recognized in a criminal case. We find no reported case recognizing this remand procedure for a claim of ineffective lawyering in a civil case. All of our reported cases involve claims by a criminal defendant of ineffective assistance of counsel in proceedings brought pursuant to, or controlled by, K.S.A. 60–1507. We certainly are not in a position to engage in the factfinding necessary to resolve this issue at the appellate level. But while it is unclear whether the Van Cleave remand process is available to a civil litigant, we will apply the admonitions in Van Cleave and Shepherd in considering whether we should remand the case to the district court for it to examine Mother's claim.
First, Mother argues that her trial counsel's billing record showed a “lack of involvement” in the case. The billing record is not found in the record on appeal. It is simply attached to Mother's appellate brief. This is not a substitute for inclusion of the document in the record. We are not entitled to consider it. State v. Jones, 287 Kan. 547, 555, 198 P.3d 756 (2008). But if we were to consider it as a part of our threshold review to determine if there should be a remand, we would not find it persuasive. There is no indication that appellate counsel consulted with trial counsel to determine the accuracy or completeness of the document. The phrasing of the argument in her appellate brief suggests that her appellate counsel did not.
As the Van Cleave court admonished, reading the cold record is not enough. Appellate counsel is expected to consult with trial counsel on matters such as this. The issue is counsel's performance, not how meticulous he was in his billing practice. It is clear that with respect to all of Mother's claims of ineffective lawyering, not just the ones based on the billing record, there is no indication that trial counsel was consulted or questioned in any fashion about his handling of the case before these claims were made.
Next, Mother complains that trial counsel should not have approached her about relinquishing her parental rights to J.W. shortly before she gave birth to J.T.W. But she later moved to withdraw her relinquishment, and the court granted her motion. The court noted that fact in its memorandum decision. We fail to see how Mother suffered any prejudice, an essential element to a claim of ineffective assistance of counsel under the benchmark case Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).
Next, Mother argues that trial counsel did not call any witnesses other than herself. She does not state who the witnesses were, what they would say, or how their testimony would have changed the outcome of the proceedings. She simply relies on the generalized claim that “[w]itnesses were available for trial counsel to present affirmative evidence of the mother's progress and to show that incomplete tasks would be complete within a short time after the trial.” Under Strickland, we give substantial deference to trial counsel on strategic decisions. One example of a strategic decision is trial counsel's decision whether to call a witness. See Mullins v. State, 30 Kan.App.2d 711, 716, 46 P.3d 1222,rev. denied 274 Kan. 1113 (2002). Because even experienced attorneys may disagree on the best tactics, deliberate decisions made for strategic or tactical reasons do not normally provide sufficient basis for claims of ineffective assistance of counsel. Bledsoe v. State, 283 Kan. 81, 93, 150 P.3d 868 (2007). As a result, the party making the claim has the burden to demonstrate that trial counsel's alleged deficiencies were not the result of trial strategy. State v. Moody, 35 Kan.App.2d 547, 562, 132 P.3d 985,rev. denied 282 Kan. 794 (2006). We find no effort by Mother to do so here.
Next is the claim that trial counsel's billing statement showed he never had a face-to-face conference with his client to prepare her for trial. Further, based on the billing statement, Mother claims trial counsel's trial preparation time was inadequate. Again, the document is not in the record, and the indication from Mother's brief is that this argument is based solely on this document without any investigation or communication with Mother's trial counsel to get his side of the story and to determine the accuracy of the document.
Next, Mother attaches to her appellate brief an affidavit which is not found in the record on appeal. She claims she provided her counsel with documents that should have been admitted at trial. There apparently has been no investigation into whether the documents were not introduced because of the ineptitude and neglect of trial counsel or a conscious strategic decision that the documents would not advance Mother's case. There is no indication as to when Mother provided these documents to her counsel: whether it was weeks before the trial or as she and her attorney walked into the courtroom to begin the trial. Nevertheless, we will examine the specific claims with respect to these documents.
Mother claims her counsel should have presented evidence from the Salvation Army detox program showing her participation. There was testimony at trial that Mother had been in the Salvation Army detox program, but Mother told Leanne Arnold, a case manager for KVC Behavioral Healthcare, that she would not be permitted to continue in the program due to complications with her pregnancy. Mother does not contend that the documents would have contradicted this testimony concerning statements she made to the case manager. She does not explain what additional testimony should have been presented.
Mother claims her counsel should have presented evidence regarding the outpatient drug treatment program at the Chautauqua Treatment Center. Arnold testified that Mother entered the program but did not complete it. Mother presented her own testimony that she was still getting treatment at Chautauqua as of the time of the trial. Thus, she had not yet completed the program. The court found that Mother had been in treatment since December 23, 2010, but had not completed the program. Mother does not claim that evidence from Chautauqua would show that she completed the program. She does not explain how the records would have advanced her cause.
Mother claims her counsel should have presented evidence regarding her employment at Liberty Tax Service. She claims she worked there to the day of her trial. But at trial she testified her job at Liberty, apparently standing on the corner waiving at passersby, was seasonal work and that is why she applied for a job at McDonald's. Mother does not explain what the Liberty employment records would add to this.
Mother claims her counsel should have presented evidence regarding her looking for housing at Oxford House. She fails to explain how that evidence would be anything other than cumulative given the testimony at trial of her efforts to find housing.
Mother claims her counsel should have presented evidence showing that she completed parenting classes. There was testimony that Mother completed 8 hours of a 12–hour parenting class. Mother does not tell us when she claims she completed the class. Elsewhere in her brief she claims she completed some of her reintegration tasks after the trial. It's not clear whether in making this claim she is referring to events after the case had been tried and submitted. In any event, in view of her many parenting failures, we fail to see, and she does not explain, how this evidence would have affected the outcome of the trial.
Mother claims her counsel should have presented evidence regarding her recently acquired job at McDonald's. Mother testified about starting orientation for this job the day of the trial. Arnold testified at trial that she received a letter earlier that day indicating Mother was starting work there. Mother fails to explain what a representative of McDonald's could add to this testimony.
Mother claims her trial counsel should have asked for a continuance to permit her to complete her reintegration tasks. The evidence at trial was that the reintegration plan ended according to its terms on October 5, 2010. As the State later argued in closing, “we have been at this since May of 2010.” According to Arnold, in November the objective changed from reintegration to adoption because “[w]e had not seen progress on the case plan.” The trial was not held until March 24, 2011. The guardian ad litem for the boys argued: “The children are being well cared for, we believe that the grandmother is willing to be an adoptive resource. She is certainly bonded with the children, and as they have with her, but it's time for us to put the children in a position of legal permanency.” The court's attitude was clear when it later observed:
“[The parents] have had ample opportunity to complete case plan tasks.... These children have been waiting virtually their entire lives for their parents to ‘parent up’ and for them to prove that they can be active, caring, responsible, dependable, trustworthy parents. It is not fair to these children to make them wait.”
We do not know when trial counsel would have had information from Mother which could form the basis for a continuance motion. But it any event, we have nothing to suggest that the district court would have countenanced a continuance of the trial if Mother's counsel had asked for one.
Finally, Mother claims her counsel should have moved for reconsideration or other posttrial relief. The basis for this is the contention that Mother had completed all the requirements of her reintegration plan sometime after the trial. There is nothing in the record, including Mother's affidavit, which is attached to her brief but also not in the record, that supports this contention. Mother does not provide any details, supported or not, in her appellate brief regarding what requirements she completed and when. Such a generalized, unsupported statement, with no contention or argument that such a posttrial motion would have been successful, does not support a remand of this case to the district court for further consideration, particularly when there apparently has been no consultation with trial counsel regarding the reason for his claimed inaction.
We conclude that applying the standards discussed in Van Cleave and Shepherd, and assuming they apply in a civil case, we do not have a basis for remanding this case to the district court for further consideration of Mother's claim of ineffective assistance of trial counsel. Sufficiency of the Evidence
Mother challenges the sufficiency of the evidence supporting the termination of her parental rights. To terminate Mother's parental rights the district court was required to find by clear and convincing evidence that Mother was unfit, that the conduct or condition which rendered her unfit was unlikely to change in the foreseeable future, and that the termination of her parental rights was in the best interests of her sons. See K.S.A.2011 Supp. 38–2269(a), (g)(1). To find grounds for terminating parental rights, the court was required to base its finding on at least one of the statutory grounds. K.S.A.2011 Supp. 38–2269(f).
On review, we 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 parent's rights should be terminated].” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In conducting such a review, the court in B.D.-Y. reminds us that we are not to weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.
Mother's primary argument is that she was on the road to completing her reintegration tasks at the time of trial. If she only had more time, all would be made right. She claims that a 60–day reintegration plan was inherently unreasonable when she was using drugs. But the reintegration plan provided for an extension at the end of the 60–day period. Naturally, that would be premised on some showing that with additional time the plan could be completed.
The district judge who tried this case presided over the CINC proceedings for the two boys from the day they were commenced. At the commencement of the trial, the court took judicial notice of all the files and records of the case to date. The record reflects that Mother had been before the court in other proceedings in the case. At trial, the district judge heard the testimony of Mother as well as that of Arnold, the case manager, and Bonnie Brightwell, a licensed social worker with 27 years of experience.
Mother concedes that by the time of trial she had not completed the required tasks to be reintegrated with her sons (though she makes the claim, unsupported in the record, that she completed these tasks after the trial). But she contends on appeal that she “made a big turnaround after the birth of J.T.W.”
The district court was in a position to determine the credibility of the witnesses. We are not. The district judge was in the better position to determine Mother's sincerity and whether Mother presented credible explanations for why she made little, if any, progress toward reintegration between J.T.W.'s birth and trial. It is apparent that the district judge did not find Mother credible on this issue. The judge found that Mother “had ample opportunity to complete case plan tasks” but failed to do so. In fact, the judge found that Mother had not even started some of her reintegration tasks by the time of trial.
Mother argues that because J.T.W. was not born until November 2010, the judge had no basis for finding that reintegration with this child was not a viable option. But it is apparent that the court considered Mother's lack of progress or effort between J.T.W.'s birth and the date of trial in making its finding.
Mother also contends there was no evidence of drug use after the May–October 2010 time period. She argues that she cannot be found to have physically or emotionally abused J.T.W. after his birth. But the evidence is undisputed that J.T.W. was born on November 8, 2010, with cocaine in his system. Besides, K.S.A.2011 Supp. 38–2269(f) provides: “The existence of any one of the above factors standing alone may, but does not necessarily, establish ground for termination of parental rights.”
The district judge found that because of Mother's history of drug use, and the fact that “she had not completed, or in some cases even started, the tasks on her reintegration plan,” she had failed to exert the effort to adjust her circumstances, conduct, or conditions to meet the needs of her sons. The judge ultimately found that Mother was unlikely to change in the foreseeable future. Viewing the evidence in the light more favoring the State, we are satisfied there was clear and convincing evidence to support these findings.
Affirmed.