Opinion
Editorial Note:
This case does not have precedential value under Kansas supreme court rule 7.04 (f) and may only be cited as persuasive authority on a material issue not addressed by a published Kansas appellate court decision.
Appeal from Shawnee District Court; Daniel L. Mitchell, Judge.
Wayne French, of Topeka, for appellant.
Darren E. Root, assistant district attorney, and Chadwick J. Taylor, district attorney, for appellee.
Before RULON, C.J., GREENE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Natural father of T.B., born July 12, 2008, appeals the district court's termination of his parental rights, challenging the sufficiency of the evidence and arguing that the invocation of a presumption of unfitness violated his due process rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Nine days after T.B. was born, the State filed a petition claiming T.B. was a child in need of care under K.S.A.2009 Supp. 38-2202 et seq. because shortly after his birth, both T.B. and his natural mother (Mother) tested positive for cocaine. In addition, Mother had admitted using cocaine several weeks before T.B .'s birth and was known to have a significant history of drug use. Mother was in drug treatment, and the child was in the neonatal intensive care unit at the time the petition was filed. At that time, the identity of T.B.'s father was uncertain.
An ex parte order was issued on July 21, 2008, placing T.B. in the custody of the Department of Social and Rehabilitation Services (SRS). In a temporary custody order issued several days later, T.B., Sr. was identified as the putative father. Mother plead no contest to a child in need of care (CINC) finding in August 2008. A separate pretrial hearing was scheduled for Father a month later. Father did not appear at that later hearing, and a default was entered against him again finding T.B. was CINC.
A disposition hearing was held on November 4, 2008, after notice was given to all parties. Father did not appear for this hearing. The court ordered continued out of home placement, finding neither parent was willing or able to provide a safe environment for the child.
On April 9, 2009, the State filed a motion to terminate both parents' right to T.B. The State alleged that Father was unfit for abandoning or neglecting T.B. after having knowledge of his birth and that Father made no reasonable efforts to support or communicate with the T.B. after his birth. The State alleged the father had not made himself available to the court, SRS, or T.B. and failed to participate in any court hearings or case plan. There was no mention of any statutory presumption of unfitness.
Father again failed to attend a pretrial conference on May 11, 2009, and the matter was continued in order for Mother to confer with her attorney for service of process to be made on the Father. At a subsequent hearing, Mother advised the court that Father was in the Shawnee County jail and the court ordered he be served with notice. The court also appointed Father counsel at this time and rescheduled the pretrial conference.
At a permanency hearing held on June 29, 2009, Father did not appear but was represented by counsel. The court ordered continued out-of-home placement and found that neither parent was willing or able to provide a safe, stable environment for the child. The July 24, 2009, pretrial conference was the first conference that Father attended. The court set the matter for trial and ordered Father be transported from jail to the proceeding. The journal entry of the pretrial conference is abbreviated and incorporated the pretrial questionnaires of the parties, but these questionnaires have not been made part of the record on appeal.
At the first trial date, October 2, 2009, Mother did not appear. Based on the stipulation to the State's evidence, the court found Mother in default and terminated her parental rights. At the State' request, a continuance was ordered and the trial was rescheduled for January 2010. Mother did not appeal from the termination of her parental rights.
A trial addressing Father's parental rights was held on January 14, 2010. Testimony presented by the State included that of Lissa Beckland, a former case manager for KVC, who worked with T.B. when he was brought into SRS custody in July 2008. Her testimony noted that T.B. had tested positive for cocaine at birth, and the case team had a meeting within 24 hours of when T.B. came into custody. At that time, Mother provided contact information for Father and he was notified, he did not attend this first team meeting.
The agency then attempted to call Father and sent a letter; someone from the agency spoke with Father on July 29, 2008, to inform him of the next family meeting and how to contact KVC if he had questions. The next meeting was set for August 4, 2008; Father had agreed to attend the meeting by phone but did not participate in the meeting. It was during this meeting that the initial case plan was discussed, and afterwards it was mailed to the Father. T.B.'s mother reported that she was in contact with Father and he chose not to have contact with the agency. Beckland had regular contact with Mother-weekly or biweekly-and Mother reported that Father was providing her with money but was not interested in parenting T.B. Mother advised that it was " her fault" that T.B. came in custody and therefore her responsibility to work to have the child reintegrated.
Beckland was never contacted by Father seeking visitation with the child. The case was transferred to another case manager in February 2009. At this time, KVC did not have current contact information for Father and was never informed he was incarcerated.
Carissa Ward assumed the role of case manage for T.B. in February 2009. She immediately sent a letter to Father notifying him of her contact information, but the letter was returned to KVC. Ward had no contact with Father between February 2009 and June 26, 2009; to her knowledge, Father did not contact anyone else at KVC during this time frame. Ward's only contact was with Father's aunt, Patricia Carter, who was being considered for possible placement but the aunt was not able to provide any contact information for Father. Ward was never told that Father was incarcerated. Effective July 1, 2009, SRS changed its contract from KVC to TFI.
When TFI took over the case, Carol Degenhardt became the case manager. About that time, Degenhardt learned that Father was in the Shawnee County jail. She did not contact Father but sent a copy of the case plan to him at the jail in November 2009. The letter came back undeliverable. During this same time, Degenhardt was in contact with Carter, who reported Father was in jail. She also mailed a letter to Father at a Wichita address provided by the prior case worker; that letter provided Degenhardt's contact information. Father at no time contacted Degenhardt to ask for visitation. Degenhardt learned from one of Father's relatives after November that Father might be in the Norton Correctional Facility; she sent several letters to him there which were not returned. Father failed to make progress on any of the tasks set forth for him in the case plan such as providing a stable home, submitting to random UAs, having a legal source of income, and keeping TFI informed of his address and phone number.
The court took judicial notice of various criminal files from Sedgwick and Shawnee Counties reflecting convictions for aggravated battery and various drug convictions including several for possession with intent to sell. The State also proffered that there was another drug-related case pending against Father in Shawnee County at the time of the hearing.
After the State rested, Father testified on his own behalf that he previously lived in Wichita but moved to Topeka when he learned Mother was pregnant with his child. In moving to Topeka, he violated the terms of his probation in Sedgwick County and knew he was absconding from a sentencing hearing where he faced a term of 68 months in prison. He moved in with Mother in Topeka in order to get her to stop using drugs and help her get enrolled in school and find a job. He was present when T.B. was born. Father testified his motives were to get Mother stabilized before he turned himself in. Father stated he drove Mother to her UA appointments and treatment appointments to encourage her to get better. There were times Mother would disappear, and he knew she was using drugs again; during those times T.B. stayed with him. Father intended that after T.B. was in a comfortable position, he would turn himself into authorities for his sentence. Father was with Mother and T.B. for about 4-1/2 months of the child's life.
Father assumed there were active warrants out for his arrest so he could not be actively engaged in the CINC case; he was concerned that if he showed up for hearing, he would be arrested. Father contacted the maternal grandmother in Minnesota and sent her money to come to Topeka to help with T.B. Father testified he financially provided clothes, diapers, food, and whatever T.B. needed. Father would have participated in the CINC proceeding but for his absconder status.
Father testified that he was at Mother's home with T.B. several times when a social worker visited. Mother introduced him as T.B.'s Father, but he stated the social worker was only concerned with Mother.
At the time of the termination trial, Father's earliest possible release date was November 2010. However, Father admitted he had pending charges in Shawnee County for fleeing and eluding an officer and possession of marijuana. He admitting having contact information from the first social worker but choosing not to participate in the CINC meetings because of the risk of arrest; he also never called her to request a visitation with T.B.
During closing arguments, the State noted the motion to terminate was filed in April of 2009, at which time the child had not been in an out-of-home placement for a year. The State noted, however, that due to delays in the trial, that particular presumption should now apply. The State also cited Father's lack of participation in the proceedings, his lack of contact with the child, and his continued incarceration and the other charges he still faced upon his release.
During Father's closing argument, counsel cited Father's contributions in supporting his son and his desire to create a stable environment for his son. Counsel even acknowledged, without objection, one aspect of the statutory presumption under K.S.A.2009 Supp. 38-2271-that T.B. had been in an out-of-home placement for a year or longer. However, Father challenged the allegation that he had substantially failed to carry out a reasonable plan for reintergration because he was " prevented [by] his circumstances." Father also argued that even if he was unfit now, there was no basis to conclude that his unfitness would not change in the foreseeable future. Finally, counsel asserted that termination of Father's rights was not in the best interests of the child.
The court made a ruling from the bench finding Father was unfit and unlikely to change in the foreseeable future by clear and convincing evidence and it was in T.B.'s best interests to terminate Father's rights. The court found the presumptions of unfitness in K .S.A. 38-2271(a)(5), (a)(8), and (a)(9) had been proven and that the other statutory factors alleged had been proven as well. The court specifically found that Father's testimony was self-serving and that it had significant concerns about the veracity of that testimony.
A journal entry setting forth the court's findings as pronounced at trial was filed. Father timely appealed.
DID THE DISTRICT COURT'S INVOCATION OF A PRESUMPTION OF UNFITNESS VIOLATE FATHER'S DUE PROCESS RIGHTS?
On appeal, Father contends his right to procedural due process was violated when the State and court relied on the statutory presumption found in K.S.A.2009 Supp. 38-2271(a)(5)-the child had been in an out of home placement for a cumulative total of 1 year or longer and the parent substantially neglected or willfully refused to carry out a reasonable plan-when that presumption was not set forth in the petition for termination.
Whether due process was provided to a party in a particular case is a question of law over which the appellate court has unlimited review. See Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 89, 11 P.3d 1165 (2000).
It appears that the State failed to allege the presumption in its initial petition. As we have held in the past, the better practice is for a pretrial conference to be conducted at which the parties are required to specify all contentions, including the intent to invoke a statutory presumption. In re K.R., 43 Kan.App.2d 891, 233 P.3d 746 (2010). Here, the pretrial conference occurred, but we cannot ascertain what contentions were made without the pretrial questionnaires. Father's claim of due process violations cannot be established without demonstrating that the pretrial procedures failed to notify him adequately that the statutory presumption would be invoked. It was father's burden to designate a record sufficient to establish the claimed error, and without such a record his claim of error must fail. Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008).
Notwithstanding whatever may have occurred at pretrial, Father failed to object at trial to the invocation of the presumption of unfitness based on the child in an out-of-home placement for more than a year. In fact, in response to the State's citation and reliance on the presumption during closing argument, Father seems to have conceded that the factual basis for this aspect of the presumption was beyond dispute, and instead challenged only the factual basis for his disregard of the reintegration plan. There is no basis to reverse on this issue because there is no convincing evidence that Father was truly surprised by the assertion of the presumption. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003); In re K.R., 43 Kan.App.2d 891, 898, 233 P.3d 746 (2010).
In any event, when due process concerns are implicated in parental termination proceedings, the federal constitutional error rule controls this issue. That rule provides that an error is only harmless if it can be declared beyond a reasonable doubt to have had little, if any, likelihood of changing the trial's outcome. State v, Ventris, 285 Kan. 595, 608, 176 P.3d 920 (2008), rev'd on other grounds Kansas v. Ventris, 556 U.S., __ U.S.__, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009). To determine whether trial error is harmless or prejudicial, a case must be scrutinized and viewed in light of the trial record as a whole, not each isolated incident viewed alone. State v. Murray, 285 Kan. 503, 535, 174 P.3d 407 (2008).
In his brief, Father cites to his fundamental rights as a parent entitling him to due process. He contends the State's delayed assertion of the presumption deprived him of a " meaningful opportunity to be heard." However, Father fails to mention what additional information he could have provided that would have addressed this particular presumption. The evidence at trial was that T.B. was initially removed from his mother's custody a few days after his birth because he (and Mother) both tested positive for cocaine. There was evidence that T.B. was placed back with his mother for about 4-1/2 months early in the process. However the child was removed again because mother failed to keep up with her drug treatment program. Even if T.B. was temporarily at home for those 4-1/2 months, he was initially removed on July 21, 2008, and remained in SRS custody in an out-of-home placement in January 2010. That is an 18-month period. Clearly, cumulatively T.B. was in an out-of-home placement for at least 13-1/2 months.
Despite Father's protestions to the contrary for the first time on appeal, Father's own testimony and his attorney's concession during trial established that T.B. was cumulatively in an out-of-home placement for more than a year. Moreover, Father's testimony as to his reasons to disregard his obligations under the reintegration plan was found to be of questionable veracity by the district court. We are in no position to reweigh this finding. See Unruh v. Purina Mills, 289 Kan. 1185, 1195, 221 P.3d 1130 (2009).
Considering the lack of a record as to pretrial notification, the failure to object at trial, the near invitation to error, the failure to dispute the factual basis for the presumption either at trial or on appeal, the finding of questionable veracity as to father's reasons to disregard his obligations under the plan, and our review of the evidence set forth below, we conclude beyond a reasonable doubt that any error in the late notification of an intended reliance on a statutory presumption had little, if any, likelihood of changing the trial's outcome. Father's due process argument is rejected for all these reasons.
WAS THE EVIDENCE SUFFICIENT TO SUPPORT TERMINATION OF FATHER'S PARENTAL RIGHTS?
Father also contends there is insufficient evidence to support the finding that he was unfit and that his unfitness would unlikely change in the foreseeable future. Father contends he provided support and bonded with the child to the extent he could considering his circumstances. Father also excuses his failure to participate in the reintegration process based upon his need to remain " under the radar" due to outstanding warrants for his arrest. He also blames the caseworkers for not tracking down his location while he was in jail and then in prison.
When this court reviews a district court's termination of parental rights we " 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 parent's rights should be terminated]." In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
For the first time on appeal, Father contends the district court's journal entry failed to set forth adequate findings of fact to support its legal conclusions. However, the journal entry is signed off by Father's counsel. Father did not object to the journal entry; nor did he file a post-trial motion seeking additional findings.
The general rule is that a litigant must object to inadequate findings of fact or explanations of a decision to preserve an issue for appeal. Without such an objection, we generally presume that the district court found all of the facts needed to support its judgment. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). However, the court may still remand when the lack of factual findings prevents meaningful appellate review. 282 Kan. at 356, 144 P.3d 1279. And when our review of the record does not support a presumption that the district court found all of the facts needed to support its judgment, we may remand the case for further consideration even though none of the parties objected in the district court or even on appeal. In re Estate of Cline, 258 Kan. 196, 206, 898 P.2d 643 (1995).
Here, the court made to specific findings that the State carried its burden of proof by clear and convincing evidence of the various statutory factors it alleged. In addition, the court considered whether it was in T.B.'s best interests to maintain a relationship with Father. Although explicit factual findings would be the better practice, based on the record in this case, the court can engage in meaningful appellate review of the evidence and the court's legal conclusions.
At the outset, the court must note that the existence of any one of the K.S.A.2009 Supp. 38-2269 factors " standing alone may, but does not necessarily, establish grounds for termination of parental rights." K.S.A.2009 Supp. 38-2269(f). The court must also consider what is in the child's best interests and must give primary consideration to the physical, mental, or emotional condition and needs of the child. K.S.A.2009 Supp. 38-2269(g)(1).
Granted, there is no evidence in the record that the district court considered K.S.A. 60-414 and determined whether subsection (a) or (b) was applicable prior to applying a statutory presumption. This failure constitutes a constitutional violation; however, we are not required to reverse on this issue because Father did not raise it before the district court, nor does he raise it on appeal. See In re K.R., 43 Kan.App.2d at 899, 233 P.3d 746.
Instead, Father relies on his own testimony that he did not abandoned T.B. as he absconded from parole in Wichita and a pending sentencing hearing in Hutchinson in order to come to Topeka to help Mother and T.B. Father testified that although he did not report any income he received " under the table" from mowing yards and the like, he used it to buy whatever T.B. needed. Again, the district court questioned father's veracity on this testimony and we are in no position to reweigh this testimony on appeal.
Father admitted having some contact with the initial KVC caseworker but knowingly did not attend any of the team meetings because of a fear they would find out about his outstanding warrants and arrest him. He failed to keep contact with the caseworkers and failed to seek visitation. Even after he was arrested, he failed to contact caseworkers-even though he was no longer in need of hiding-to advise them of his status and to determine what tasks he should perform toward reintegration with T.B. Instead, Father blames the case workers for not tracing his location once he entered the prison system. However, the caseworker at the time sent several letters to the Norton Correctional facility and received no response from Father.
Father had a lengthy criminal record and used his outstanding warrants as a justification not to participate in the reintegration plan or maintain contact with T.B. once he was removed permanently from Mother's care. At the time of the termination hearing, Father's earliest release date was November 2010, and yet he still faced additional pending charges in Shawnee County upon his release. Therefore, Father's ability to assume parental duties is unlikely for the foreseeable future.
" What is the ‘ foreseeable future’ is to be considered ‘ from the child's perspective, not the parents', as time perception of a child differs from that of an adult.’ [Citation omitted.].... We have found incarceration for as few as 7 additional months from the date of the hearing, along with other factors, was sufficient to establish that the parent's condition would not change in the foreseeable future. [Citations omitted.]" In re S.D., 41 Kan.App.2d 780, 790, 204 P.3d 1182 (2009) (child's out-of-home placement, which would be almost half her life by the time Mother could be released from prison, was not within the foreseeable future).
Father's utter failure to maintain contact with caseworkers during his incarceration to learn what he should be doing shows a failure to adjust his circumstances to the needs of his child. Assuming Father had bonded to some degree with T.B. in his first 5 months of life, his total absence from the child's life since then-a period of at least a year-means that any bond that may have existed was likely undermined due to T.B.'s young age and the length of time his Father has been completely absent from any contact with the child.
We are convinced, after review of all the evidence viewed in the light most favorable to the State, that a rational factfinder could have found it highly probable, by clear and convincing evidence, that father's parental rights should be terminated. See In re B.-D.Y., 286 Kan. at 705, 187 P.3d 594.
Affirmed.