In re T.M. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,488
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of T.M.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed August 28,
2020. Affirmed.
Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellant.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before BUSER, P.J., HILL and WARNER, JJ.
PER CURIAM: Father appeals the district court's judgment that he is unfit to parent
his daughter, T.M. Father contends the district court erred when it found that he was
presently unfit and would remain unfit for the foreseeable future to parent T.M. and that
it was in the child's best interests to terminate Father's parental rights. Father also asserts
the district court abused its discretion when it denied his request for a continuance.
Alternatively, Father argues that his attorney's failure to compel the attendance of two
out-of-state witnesses constituted ineffective assistance of counsel.
Upon our review of the parties' briefs and the record on appeal, we hold the district
court did not err in its judgment or rulings. Accordingly, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
T.M. was born in August 2018, and two days later the Kansas Department for
Children and Families (DCF) received an intake regarding concerns about the ability of
Mother to care for T.M. A few days later, Paul Rehmet, a child protective specialist with
DCF, met with Mother at her home. Mother told Rehmet about her mental health history
and that her other three children were no longer in her care. One of the children lived
with his father while the other two remained in the State's custody as children in need of
care (CINC).
Mother also told Rehmet that Father was T.M.'s father and that Father and Mother
were previously in a relationship that ended in February or March 2018. Mother advised
that Father's cellphone was disconnected, and he no longer resided with her and T.M.
Mother did not know of Father's whereabouts or have any contact information about him.
Rehmet attempted to locate Father at a sober living facility, but he was informed that
Father was terminated from the program in August 2018 due to a relapse. Rehmet also
learned that Father had been terminated from his employment as a bus driver at First
Student Inc. in early August 2018.
In late August, the State filed a Child in Need of Care Petition alleging that Father
and Mother were unfit to parent T.M. As to Father, the petition alleged he was unfit due
to lack of established paternity, the inability of the State to locate him, a lack of a stable
living environment, his failure to intervene on T.M.'s behalf, a history of contacts with
law enforcement, and failure to protect T.M. from Mother.
On September 5, 2018, the district court held a temporary custody hearing. At that
time, the district court ordered that T.M. remain in DCF custody in an out-of-home
placement. The order noted that Father's whereabouts were still unknown and he was in
default. By October 26, 2018, Father had been located and the district court ordered a
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continuance to allow him to obtain paternity testing. That same day, the State filed an
"Amended Child in Need of Care Petition and Motion for Finding of Unfitness and
Termination of Parental Rights."
The State's amended motion asserted that Father's paternity was still not
established, listed Father's prior contacts with law enforcement (which included a
pending charge of criminal trespass and no liability insurance), and that Father was in the
Leavenworth Kansas Veteran's Administration domiciliary program where he was
scheduled to remain until February 2019. The domiciliary is an inpatient treatment
program that serves military veterans dealing with unemployment, addiction,
homelessness, and mental health issues. Father was in the program to address his alcohol
addiction.
On November 13, 2018, the district court ordered a continuance of the hearing on
the State's amended termination motion until February 20, 2019. Of note, Mother
voluntarily relinquished her parental rights on February 20, 2019. The termination of
Mother's parental rights is not on appeal.
Father took a paternity test on December 5, 2018, and was notified in February
2019 that he was the father of T.M. Although Father knew T.M. was born before going to
the domiciliary, he waited until the paternity results were received in February 2019 to
become involved in the case because he believed there was another potential father. The
district court ordered additional continuances on February 20, April 2, and June 4.
The termination of parental rights hearing occurred on July 30, 2019. Five
witnesses testified for the State: Barbara Wilson, Cara Hall, Velvet Gonzalez, Lavana
Faine, and Amanda Hart. Father testified on his own behalf in his case-in-chief. Father
intended to call two therapists from Missouri, Melinda Thomas and Erica Fisher, but the
Kansas subpoenas provided to them were not valid under the interstate compact on
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subpoenas. Father sought a continuance to compel the witnesses' appearances, but the
district court denied the request because it found the subpoena issue was foreseeable.
At the conclusion of the evidence, the district court found Father unfit to parent
T.M. and terminated his parental rights. The district court also found that Father's
parental unfitness would continue for the foreseeable future and that it was in T.M.'s best
interests to terminate Father's parental rights.
Father timely appeals.
TERMINATION OF PARENTAL RIGHTS
On appeal, Father contends the district court's finding that he was unfit and his
unfitness was unlikely to change in the foreseeable future was not supported by clear and
convincing evidence. Moreover, Father asserts that the district court abused its discretion
by concluding that termination of parental rights was in the child's best interests. In
response, the State highlights the evidence presented at the termination hearing in support
of the district court's termination order.
Before terminating parental rights, the district court must find that the State proved
by clear and convincing evidence that the parent is unfit and the conduct or condition
which renders the parent unfit is unlikely to change in the foreseeable future. K.S.A. 2019
Supp. 38-2269(a). The district court must also find by a preponderance of evidence that
termination of parental rights is in the best interests of the child. K.S.A. 2019 Supp. 38-
2269(g)(1).
Our appellate standard of review dictates that in considering a district court's
decision finding a parent unfit and unlikely to change, we must consider whether, after
review of all the evidence viewed in the light most favorable to the State, our court is
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convinced that a rational fact-finder could have found it highly probable, i.e., by clear and
convincing evidence, that the parent is unfit and the conduct rendering the parent unfit is
unlikely to change in the foreseeable future. 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.
Of note, in our appellate review, we do not reweigh the evidence, judge the
credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. Finally, we
review the district court's decision regarding the best interests of the child for an abuse of
discretion. In re M.H., 50 Kan. App. 2d 1162, 1175, 337 P.3d 711 (2014).
The revised Kansas Code for Care of Children authorizes a district court to
terminate parental rights based on certain statutory findings made after a child has been
adjudicated a CINC. K.S.A. 2019 Supp. 38-2269(a). Ordinarily, the district court
evaluates whether a parent is unfit by considering a nonexclusive list of factors provided
in K.S.A. 2019 Supp. 38-2269(b) and (c). Any one of the factors standing alone may
provide sufficient grounds for termination. K.S.A. 2019 Supp. 38-2269(f).
In this case, the district court relied on the following three statutory factors to find
that Father was an unfit parent:
• reasonable efforts by appropriate public or private child caring agencies
have been unable to rehabilitate the family, K.S.A. 2019 Supp. 38-
2269(b)(7);
• lack of effort on the part of the parent to adjust the parent's circumstances,
conduct, or conditions to meet the needs of the child, K.S.A. 2019 Supp.
38-2269(b)(8); and
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• failure to carry out a reasonable plan approved by the court directed toward
the integration of the child into the parental home, K.S.A. 2019 Supp. 38-
2269(c)(3).
Each factor is separately analyzed below.
Failure of reasonable efforts made by appropriate public or private agencies to
rehabilitate the family, K.S.A. 2019 Supp. 38-2269(b)(7)
Father challenges the reasonableness of the efforts made by the various service
providers in their attempt to rehabilitate the family. He contends the agencies did not
expend reasonable efforts and the length of time he was given to comply with the court
orders was too short. Father also believes that the social workers disregarded the progress
he made because they did not care for his personality. The State responds that
considerable efforts were made to no avail by service providers over the course of the
proceedings.
K.S.A. 2019 Supp. 38-2269(b)(7) provides that when determining the fitness of a
parent, one of the factors the court may consider is the "failure of reasonable efforts made
by appropriate public or private agencies to rehabilitate the family." The statute focuses
on reasonable efforts expended by service providers to achieve the goal of rehabilitation.
As our court has observed, this factor does not "require proof that the appropriate
agencies made a herculean effort to lead the parent through the responsibilities of the
reintegration plan." In re B.T., No. 112,137, 2015 WL 1125289, at *8 (Kan. App. 2015)
(unpublished opinion). It also does not require the public or private agencies to provide
every possible resource to the family; only that the agencies made a reasonable effort. In
re A.J.S., No. 95,283, 2006 WL 2043504, at *3 (Kan. App. 2006) (unpublished opinion).
Finally, the requirement exists to provide a parent with an opportunity to succeed, but to
do so requires the parent to exert some effort. In re M.S., 56 Kan. App. 2d 1247, 1257,
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447 P.3d 994 (2019); see In re A.P., 121,913, 2020 WL 3022868, at *10 (Kan. App.
2020) (unpublished opinion), petition for rev. filed June 30, 2020 and July 6, 2020.
The record shows that several professionals affiliated with various agencies
attempted to assist Father in assuming his parental responsibilities. Since Father lived in
Kansas City, Missouri, an ICPC Regulation 7 Expedited Placement was ordered on April
2, 2019. Barbara Wilson with the State of Missouri, Children's Division, ICPC unit was
assigned to evaluate Father's case and determine whether Father had an appropriate home
in Kansas City for placement of T.M. Given the expedited nature of this placement,
Wilson provided paperwork for Father to complete within eight days. Father did not meet
the deadline. Father told Wilson he thought he sent the paperwork electronically,
although she never received it and Father did not resend it. The paperwork was never
received prior to Wilson's completion of a home study report.
Wilson assisted Father in completing tasks necessary for T.M. to live with Father
in his apartment. For example, Father did not have a crib for T.M., although he was on a
waiting list for a donated one. Wilson investigated the matter and told Father about a crib
for just under $100 that could be delivered the next day. According to Wilson, Father
became agitated and said, "'That would be really hard for somebody to do that doesn't
have a car. I told you my car was stolen when I moved to Kansas City.'" Wilson repeated
several times that the crib could be delivered to his apartment. At the time of the
termination trial Father still did not have a crib.
Wilson was particularly worried about the condition of Father's apartment.
According to Wilson, the residence was not appropriate for a child stating, "It's not set up
for a child. No supplies, no bed, all the safety measures not in place."
Wilson also worked with Father to obtain his fingerprints for the background
check. On one occasion, Father called Wilson, while upset, advising her that "he wasn't
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going to run around all over town getting fingerprints." After researching the issue on the
internet, Wilson found a business, Test Smartly Labs, that collects fingerprints that was
located 3 miles from his home and provided Father with the necessary information. Later,
Wilson received a call from Father at the laboratory in an extremely agitated state and
"completely out of control" because he had arrived too late for the laboratory to complete
the necessary paperwork and take his fingerprints. Wilson could hear Father degrading
the staff. She later called the laboratory to make sure that everyone was safe.
Velvet Gonzalez, an employee of Test Smartly Labs testified to the verbal dispute.
According to her, after she called her boss and he was talking to Father on the phone,
Father "got mad and threw the phone at us, which thank God there was a mirror which
stopped it." Gonzalez testified that she was concerned for her safety.
Wilson did not approve placement of T.M. in Father's home. She testified to her
reasons for the decision that included Father's "[d]ishonesty, unstable behavior, mental
health, . . . the dishonesty is very concerning, as well [as] pending criminal—you know,
what if he gets arrested and he has got a baby in his care? There [are] pending charges.
There's just—it was just a lot of inaccuracies and inconsistent reports."
On appeal, Father emphasizes that he was given a limited amount of time to
complete the necessary paperwork. At trial, Wilson agreed there was a short turnaround
from the time that Father received the paperwork on April 25 to the May 3 deadline. She
also agreed that there was a "significant amount of information" that Father needed to
collect but she disagreed that not having a car would make it more time consuming to
complete. According to Wilson, "The information that I was asking for is all things that
he said that he had, and he should be able to fill out paperwork without going anywhere."
Still, the paperwork was never received prior to Wilson's completion of a home study
report in which she denied placement of T.M. in Father's residence.
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The record shows that Wilson expended reasonable efforts to assist Father with the
assigned tasks despite the expedited deadline. She performed a home walk-through, told
Father what supplies he needed to obtain before she could approve placement, spoke with
Father on the phone multiple times to explain what he needed to do, helped Father find a
fingerprinting facility and a crib that he could buy, and attempted to verify Father's
employment herself after Father failed to give her pay stubs from his claimed employers.
Lavana Faine, a licensed reintegration social worker at Saint Francis Ministries
(SFCS) also expended reasonable efforts to integrate T.M. with Father. Faine first
contacted Father in November 2018 while he was in the domiciliary program, but she did
not begin working with him until after his paternity was established in February 2019.
Faine coordinated visits between T.M. and Father at SFCS, attempted to verify
Father's employment, and communicated with Father in person and through phone calls,
text messages, and emails. Faine reviewed and explained the district court's orders and
case plan with Father multiple times to help him understand the integration process.
According to Faine:
"[O]nce we did start communicating, it was very hard because it seemed like
every time we would talk, he would get upset because he said he didn't understand the
process. And so then I would go over his court orders with him again, try to provide
places on where he could get assistance. But then he would just always go back to, even
after I explained all of that to him, still that he didn't understand what it was we needed
him to do."
From the beginning of her involvement with Father, Faine asked him to submit to
a psychological evaluation. At the time of the termination hearing, Faine understood that
Father had recently obtained a psychological evaluation. Although Father had told her
previously that he had signed a release, Faine learned later that it was signed only four
days before the termination trial. As a result, Faine had not received a copy of the
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psychological evaluation at the time of the trial. It should be noted that the psychological
evaluation, admitted as Father's Exhibit F at trial, was not included in the record on
appeal. Faine testified that based on her interactions with Father she did not believe he
could physically, mentally, and emotionally meet T.M.'s needs. In particular, she was
concerned about Father's mood swings.
Father's ability to progress towards integration with T.M. was hindered because he
was frequently not truthful with the caseworkers. Faine testified that Father frequently
lied about matters involving Wilson. For example, Father told Faine that Wilson was
allowing him to submit his paperwork late and that the ICPC was going to be approved
but Wilson confirmed that was not the truth. Faine testified that Father would frequently
indicate that some task was completed when it was not. Ultimately, Faine and Wilson
communicated with each other to learn accurate information about what tasks Father had
completed.
Regarding employment, Father told Faine that he had been employed in several
occupations for short periods of time during 2019. Faine attempted, without much
success, to verify this employment history. She testified that she had concerns about
Father's stability because "he has not proven to be able to maintain employment."
At the conclusion of her trial testimony, Faine recommended that Father's parental
rights should be terminated. In particular, she highlighted that Father had not been honest
and forthcoming with the information he provided, his home was not appropriate for
T.M. to live in, there was lack of verification that Father addressed his mental health
issues, and he failed to obtain a substance abuse evaluation.
Amanda Hart, a family support and reintegration worker with SFCS supervised the
numerous visits between Father and T.M. According to Hart, Father and T.M. had a very
good relationship during the visitations. Father would typically inquire into the child's
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development and bring her a toy. But Hart testified that Father had mood swings, and a
volatile personality towards Hart on one occasion. Hart, who was present for the
testimony of Wilson and Faine, agreed that the mental health concerns observed by the
other two witnesses were like her experiences with Father during the visitations.
Upon our consideration of K.S.A. 2019 Supp. 38-2269(b)(7), and a review of all
the evidence in the light most favorable to the State, we are convinced that a rational fact-
finder could have found by clear and convincing evidence that Father was unfit due to the
inability of appropriate public and private child care agencies to rehabilitate Father.
Father had access to community resources and enough time to make the necessary
improvements to integrate with T.M. Moreover, the efforts of the agencies were
reasonable, but Father failed to comply with the necessary tasks to achieve integration
with T.M.
Lack of effort on the part of the parent to adjust the parent's circumstances, conduct, or
conditions to meet the needs of the child, K.S.A. 2019 Supp. 38-2269(b)(8)
Father contends the district court erred in finding that he lacked effort to adjust his
circumstances, conduct, or conditions to meet the needs of T.M. Father asserts he made
progress given the short period of time afforded him before the termination hearing. On
the other hand, the State emphasizes that although Father was provided with reasonable
resources and support, he was unable to adjust his circumstances, conduct, or conditions
to meet T.M.'s needs.
K.S.A. 2019 Supp. 38-2269(b)(8) provides that when determining the fitness of a
parent, one of the factors the court may consider is the lack of effort on the part of the
parent to adjust the parent's circumstances, conduct, or conditions to meet the needs of
the child. The district court's finding under this subsection of the statute is supported by
the evidence discussed in the previous section and other evidence. The record
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demonstrates that Father's unstable housing, sporadic employment, and mental health
concerns played important roles in finding that he was unfit under this factor.
Evidence presented at the termination trial showed that Father had a history of
unstable housing. In early 2018, Father lived in a sober living community in Wichita
called Liberty Way before being evicted. He then lived in Wichita for short stints with
friends, family, hotels, and was briefly homeless. In August or September 2018, Father
moved in with his aunt Carol. By October, Father had relocated to Kansas City and lived
in the domiciliary to address his alcoholism. He remained there until January 2019. After
the domiciliary, Father moved to Footprints, a transitional housing facility for homeless
veterans, for about three weeks before being discharged in February 2019. Father then
lived in a bed and breakfast for a brief period before relocating to an apartment in March
2019, where he continued to reside until the time of the termination trial.
As mentioned earlier, based on Wilson's walkthrough inspection of Father's
apartment, she did not believe the housing was appropriate for a child. Moreover, Wilson
testified she was "concerned with the safety of the apartment building and the
neighborhood as well." Father candidly conceded that the neighborhood is "sketchy" and
"[i]t's not somewhere you want to go at night."
Father's employment history was also sporadic. Father said he had intermittent
employment dating back to early 2018, but he failed to verify this employment. As a
result, a timeline of his employment is vague and uncertain. In early 2018, Father worked
as a school bus driver at First Student Bus Company for a semester before being fired in
early August 2018. After that, due to his alcoholism, Father entered the domiciliary.
Father candidly acknowledged that prior to entering the domiciliary, "I was too deep into
my alcoholism" to be regularly employed.
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While at the domiciliary, Father said he was employed at FedEx until a Veterans
Administration doctor revoked his working status due to a workplace injury in November
2018. Father did not have another job until after he left Footprints in February 2019. At
that time, Father worked as a salesman at Seal Smart for about a month and a half before
hiring on as a lead generator at Alenco Remodeling in late February or early March 2019.
Father testified that he worked for Alenco for three months before hiring on with
Anytime IP, where he worked for three weeks. Father then returned to Alenco in June
2019. Father's second stint at Alenco lasted about two and a half weeks whereupon he
quit after Alenco refused to pay him his last paycheck. The week before the termination
trial, Father testified that he had started working at Budget Rent A Car.
As previously mentioned, Father's work history was rarely verified. Father never
provided Faine with any proof that he worked at Anytime IP or Budget Rent A Car.
Occasionally, Wilson and Faine learned that, for whatever reason, Father's account of
employment was not accurate. For example, Wilson called Alenco to verify that Father
was employed there, and she was told that Father had been terminated.
Father's ability to financially provide for T.M. was also called into question
because he was not current in his child support for two other children. In summary,
Faine's opinion that Father had not shown he was able to maintain stable employment
was well supported by the available evidence.
Father's mental and emotional health was an important issue during the
termination trial. Cara Hall, a licensed clinical social worker at the Kansas City Veterans
Administration, worked with Father at Footprints. Hall conducted a complete
biopsychosocial assessment of Father in January 2019 and diagnosed him with a
narcissistic personality disorder and exhibiting possible bipolar disorder. As a result, Hall
encouraged Father to see a psychiatrist. But Father did not agree with her suggestion,
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because he did not want it to interfere with his job search. Father was unwilling to
address his mental health needs while at Footprints. According to Hall, Father
"seemed unaware of his behaviors and how it affected other people and how ultimately it
would affect him. And that was a concern. He didn't seem to have insight into the fact
that . . . his angry behaviors and his—just his general tone of disrespect to other people,
how that would come back and hurt himself."
Wilson and Faine had similar difficulties in trying to get Father to complete
mental health evaluations. Father told Wilson in May 2019 that he was aware that he
needed a psychological evaluation, but he had not completed it. Faine testified that she
told Father from the beginning of the case that he needed to obtain a psychological
evaluation.
As recounted earlier, Father's angry outbursts towards Gonzalez at the Test
Smartly Labs and at Hart while she was supervising a visit with Father and T.M. raised
concerns about his parenting skills. Additionally, Father's difficulties managing his anger
and understanding instructions when communicating with Wilson and Faine, clearly
showed a pattern of behavior that is not conducive to parenting a young child. Still,
Father did not take timely action to address his mental and emotional health.
At trial, Father testified that he voluntarily began individual and group therapy at
Truman Medical Center in the month prior to trial. However, Faine testified that Father
never told her about joining a therapy group. A recent psychology therapy note from
Truman Medical Center indicated that Father was given a diagnosis of "adjustment
disorder." Father admitted, "I'm looking at raising a child on my own. That's a big
adjustment." Given Father's multiple diagnoses of narcissistic personality disorder,
possible bipolar disorder, adjustment disorder, and his anger control issues, we are
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persuaded that he did not obtain the necessary evaluations, care, and treatment to achieve
the necessary mental health to parent T.M.
While Father had five months to adjust his circumstances, conduct, or conditions
to meet T.M.'s needs, the evidence sufficiently showed that in matters of housing,
employment, and mental and emotional health, Father failed to exert sufficient effort. On
the contrary, Father's deficiencies were serious and persistent.
Failure to carry out a reasonable plan approved by the district court directed toward the
integration of the child into the parental home, K.S.A. 2019 Supp. 38-2269(c)(3)
The district court found a third factor, K.S.A. 2019 Supp. 38-2269(c)(3), was also
applicable in establishing Father's parental unfitness. In the language of the statute, a
district court may terminate a parent's rights to his or her child if "a child is not in the
physical custody of a parent" and, there is clear and convincing evidence of the "failure to
carry out a reasonable plan approved by the court directed toward the integration of the
child into a parental home." K.S.A. 2019 Supp. 38-2269(c)(3).
As to this statutory factor, Father contends:
"although Father did not quite complete all of his case plan tasks, he did either complete
or make significant progress towards the most important tasks in the case—including
obtaining stable housing, employment, attending a parenting class, obtaining a
psychological evaluation, addressing his substance abuse issues, maintaining regular and
appropriate visitation with [T.M.], and seeking mental health treatment—all in the very
short time frame actually allowed him."
Father's assertions are not supported by the record. As documented earlier, at the
time of the termination trial, Father did not have stable housing or employment. Although
he obtained a psychological evaluation, the report of which was admitted as Father's
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Exhibit F, the case managers had little or no knowledge about it since Father only
obtained it a few days before the termination trial. Father's claim to have participated in
mental health therapy shortly before the termination trial was not confirmed by
corroborating evidence. Father also failed to timely sign medical releases and complete
paperwork that hindered his ability to successfully achieve the goals of the integration
plan.
Father did not obtain a substance abuse evaluation as directed. In his favor,
however, Father had numerous scheduled urine tests that were negative for alcohol.
Under the plan, he was permitted to schedule these tests in advance of trips to Wichita.
No random tests were required under the plan. Moreover, Father did successfully comply
with the visitation program, visiting T.M. on 13 occasions. Additionally, he completed a
five-hour parenting course.
As the record shows, Father completed a few of the case plan tasks but as to the
critical goals of stable housing, employment, and mental health, Father's efforts were
insufficient and unsuccessful. As Faine stated in her report, Father "has not fully engaged
in the reintegration process." We are persuaded that the State presented clear and
convincing evidence that Father failed to carry out a reasonable plan directed towards
integrating with T.M.
Father's conduct or condition is unlikely to change in the foreseeable future
Having found clear and convincing evidence to support the district court's finding
of parental unfitness under K.S.A. 2019 Supp. 38-2269(b)(7), (b)(8), and (c)(3) we next
consider whether there was clear and convincing evidence to support the district court's
finding that the conduct or conditions which rendered Father unfit are unlikely to change
in the foreseeable future. See K.S.A. 2019 Supp. 38-2269(a).
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Father complains that although the case had been pending for 11 months at the
time of the termination trial, given the delay in Father's paternity test results, he had only
5 months to address the district court's parenting concerns. Father argues that he was
given insufficient time to accomplish the case plan goals and, given his progress in
achieving some of those goals, there was no basis to conclude that he would be unable to
change his conduct or condition in the foreseeable future.
The State counters that the "court heard testimony and was presented with exhibits
showing that the issues that were present in [F]ather's life at the beginning of the case
were still present at the time of termination." The State also emphasizes that the
foreseeable future should be measured in child time.
T.M. was in DCF custody for 11 of the first 12 months of her life. She has never
resided with Father. Kansas law recognizes that children experience the passage of time
differently than adults. See K.S.A. 2019 Supp. 38-2201(b)(4). As our court has stated:
"In determining whether a parent's conduct or condition is likely to change in the
foreseeable future, 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." In re S.D., 41
Kan. App. 2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009). See In re G.A.Y., No. 109,605, 2013
WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion) ('"child time"' differs from
'"adult time"' in care proceedings 'in the sense that a year . . . reflects a much longer
portion of a minor's life than an adult's')."
As a result, the test is not whether Father was taking reasonable steps towards
carrying out the case plan, meeting the needs of T.M., and integrating the family, but
whether Father has the ability to actually accomplish—in the foreseeable future based
upon child time—the necessary goal of unification.
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In considering the question of the foreseeable future, a court may predict a parent's
future unfitness based on his or her history. In re Price, 7 Kan. App. 2d 477, 483, 644
P.2d 467 (1982). Father's history was the focal point of the district judge's findings:
"[E]very person that you come into contact with that has anything to do with this
case ends in conflict. . . . [I]t is extremely rare that we have the type of conflict with
parents in child welfare cases that has occurred in this case with you.
"Here are the observations and the facts of the Court. You are 50 years old, sir,
and you know that you have mental health problems. From the testimony, the finding of
the Court is that you have never adequately and appropriately addressed those mental
health concerns.
"During your testimony, most of your testimony was either nonresponsive or
narrative, trying to place yourself in some grandiose position and everybody is trying to
tear you down. But you have made this case equally hard on yourself as well as
everybody else concerned. You didn't timely sign your releases so we could obtain the
information and get to the bottom of the mental health issue and what you have done, if
anything, to adequately address those mental health needs. Because the fact is and the
Court finds that you have some pretty severe narcissistic tendencies based on the
testimony of the witnesses and the observation of your testimony here in court today. It's
everybody else's fault. It's not your fault. And that's—the Court finds that's simply not
true. The fault lies with you, sir, because you haven't addressed your issues appropriately.
"And to that extent and based upon your numerous short-term employment
situations, the Court has serious concerns about Father's ability to maintain employment
based on his conflict with people—all people he seems to come into contact with.
....
"I have taken into consideration child time. This case has been on file since
August of last year. I find that you became aware of this, and I will accept everybody's
testimony, in November of last year. You have had ample time to comply, to complete—
successfully complete the orders of the Court. You have not done that."
The district court's observations of Father's narcissism and confrontational
approach to problem solving were echoed by T.M.'s guardian ad litem. When asked by
the district court for his recommendation regarding termination, the guardian ad litem
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replied, "Yes, I definitely recommend termination. I think that [Father] has . . . sought
help, pulled the plug on the help in various facilities, and he isn't going to listen to
anybody because he knows more than everybody else."
After reviewing all of the evidence in the light most favorable to the State, we are
convinced that a rational fact-finder could have found it highly probable that Father's
conduct or condition rendering him unfit to parent T.M. was unlikely to change in the
foreseeable future. See K.S.A. 2019 Supp. 38-2269(a); In re B.D.-Y., 286 Kan. at 705.
Father's unstable housing, sporadic employment, and mental or emotional
problems preceded the filing of this case and persisted throughout the proceedings with
modest or no improvement. As of November 2018, Father knew that he was potentially
the father of T.M. This provided him with about eight months in which to prepare for
taking over the responsibilities of parenthood. When Father's paternity was confirmed
three months later, that left Father with five months to address the previously identified
problem areas. We acknowledge that five months is a shorter time period to achieve case
plan goals than in most termination cases. Still, given the long-established and serious
inadequacies that remained in Father's parental fitness at the time of the termination trial,
we are convinced that additional time would not have improved the probability of Father
integrating with T.M.
Looking at the evidence in the light most favorable to the State, and based on
Father's history, there was clear and convincing evidence that Father was unlikely to
change his conduct or condition of unfitness in the foreseeable future.
The best interests of T.M.
On appeal, Father claims there was not substantial competent evidence that
parental termination was in T.M.'s best interests. Father points out that he and T.M. had
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an immediate bond, supervised visitations went well, and "Father interacted appropriately
with [T.M.]"
Our court reviews a district court's decision regarding the best interests of the child
for an abuse of discretion. In re R.S., 50 Kan. App. 2d 1105, 1116, 336 P.3d 903 (2014).
An abuse of discretion occurs when no reasonable person would agree with the district
court or if the court bases its decision on an error of fact or law. 50 Kan. App. 2d 1105,
Syl. ¶ 2. A district court also exceeds its broad latitude if its ruling is "arbitrary, fanciful,
or unreasonable." Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan.
906, 935, 296 P.3d 1106 (2013).
The district court found by a preponderance of evidence that termination of
parental rights was in the best interests of T.M. See K.S.A. 2019 Supp. 38-2269(g)(1). In
making this determination, the court gives primary consideration to the physical, mental,
and emotional needs of the child. K.S.A. 2019 Supp. 38-2269(g)(1).
"[T]he court must weigh the benefits of permanency for the children without the presence
of their parent against the continued presence of the parent and the attendant issues
created for the children's lives. In making such a determination, we believe the court must
consider the nature and strength of the relationships between children and parent and the
trauma that may be caused to the children by termination, weighing these considerations
against a further delay in permanency for the children." In re K.R., 43 Kan. App. 2d 891,
904, 233 P.3d 746 (2010).
Here, T.M. has been in DCF custody since she was one month old. During this
entire time, she has resided with the same foster family and is doing well in that
placement. The only contacts Father had with T.M. were 13 brief supervised visits over
the course of these proceedings. While these visits have gone well, given the child's
tender years and the occasional and brief character of the visits, the nature and strength of
the parent/child relationship is not firmly established. On the other hand, given the
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district court's finding that Father's unfitness to parent would not change in the
foreseeable future, and given the tender age of this child the need for permanency
becomes increasingly apparent.
Because the record shows that T.M.'s health and well-being would be at risk if
parental rights were not terminated, a reasonable person could agree with the district
court's decision that termination was in the best interests of the child. The district court
did not abuse its discretion in ruling that termination of parental rights was in the best
interests of T.M.
MOTION FOR CONTINUANCE
Father contends the district court's decision to deny his request for a continuance
to allow two therapists to testify at the termination trial was unreasonable. The State
counters that Father did not adequately proffer the substance of the therapists' testimony
and, on appeal, failed to properly designate the record.
In termination of parental rights cases, this court reviews a district court's denial of
a motion for continuance for abuse of discretion. In re A.A., 38 Kan. App. 2d 1100, 1105,
176 P.3d 237 (2008); In re J.M.B., No. 112,578, 2015 WL 4460578, at *5 (Kan. App.
2015) (unpublished opinion). "[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." Northern Natural Gas Co., 296 Kan. at 935; J.M.B., 2015 WL
4460578, at *5.
Of particular significance in this case, Kansas statutes provide that proceedings in
CINC cases "shall be disposed of without unnecessary delay. Continuances shall not be
granted unless good cause is shown." K.S.A. 2019 Supp. 38-2246. Moreover, a district
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court grants a continuance only if it finds it is in the best interests of the child. K.S.A.
2019 Supp. 38-2267(a).
When it rules on a motion for continuance, the district court must consider "'all
circumstances, particularly such matters as the applicant's good faith, his showing of
diligence, and the timetable of the lawsuit.' [Citation omitted.]" In re J.A.H., 285 Kan.
375, 385, 172 P.3d 1 (2007).
At the conclusion of Father's testimony in the defense case, Father's counsel
informed the district court that she intended to call Thomas and Fisher, two therapists
from Kansas City, Missouri, as witnesses but she had just learned they were unavailable.
Father's counsel advised the district court that an attorney for the two therapists had
called during the trial and advised that Thomas and Fisher would not appear in person or
by telephone because the Kansas subpoenas they received were not valid in Missouri.
Father's counsel did not argue that it was in T.M.'s best interests to continue the hearing.
See K.S.A. 2019 Supp. 38-2267(a).
Father's counsel acknowledged that the district court previously had advised the
parties it would not permit additional continuances, but she moved for a continuance to
compel the testimony of the two therapists. According to Father's attorney, Fisher had
told her "she had no concerns about the child going home."
This was not the first continuance that Father had sought in this case. The State
filed the "Amended Child in Need of Care Petition and Motion for Finding of Unfitness
and Termination of Parental Rights" in October 2018, and the original date for a hearing
on the motion was November 13, 2018. But the district court ordered a continuance to
allow for paternity testing, and Father received those results in February 2019. Once
paternity was established, the district court ordered continuances on February 20, April 2,
and June 4, to allow Father an opportunity to demonstrate that he was fit to parent T.M.
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Moreover, during Father's cross-examination it was established that he chose to be
evaluated in Kansas City, although at a prior hearing the district court had advised the
parties that such an out-of-state evaluation would create "difficulty in dealing with
witnesses from another state."
The district judge denied the motion for continuance:
"And this is one of the questions that's been bothering me during this proceeding and
during this case, is that this was not unanticipated that we were going to have problems
with witnesses in Missouri. Number one, it's across state lines. Number two, our
subpoena powers by statute don't go that far. So I knew that was going to be a problem,
and I addressed that with [State's counsel] on her witnesses. And there is nothing I can
do. All right?
"I told you that at the beginning of the trial that that was an anticipated problem."
The district court's ruling reflects that it did not believe Father had demonstrated
good cause to grant a continuance. See K.S.A. 2019 Supp. 38-2246.
Father has failed to present us with a record showing error. Although Father's
mental and emotional health was an important aspect of the trial, Father has not included
Father's Exhibit F, which was described as a mental health evaluation which discussed
diagnoses by Dr. Vanipenta, in the record on appeal. Testimony by Father also referenced
therapy notes admitted in evidence but did not identify the mental health professional(s)
who created them. These notes are also not in the record.
We are left to speculate about whether Father's exhibits contained findings and
opinions from Thomas and Fisher regarding Father's mental status. If so, the necessity for
their trial testimony would be lessened. Moreover, the possible prejudice of not having
the testimony of the therapists at trial is unknown because there is no evidence or
substantive proffer about what, if any, professional findings and opinions the therapists
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were prepared to testify about. The burden is on the party making a claim of error to
designate a record sufficient to present its points to the appellate court and to establish its
claims. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287
(2013). Brown has failed to establish a record showing the district court abused its
discretion in denying the continuance.
Due to the district court's finding that out-of-state witness problems were
foreseeable (and should have been anticipated), the number of continuances previously
granted to Father, and Father's failure to show prejudice in denying the continuance, we
are persuaded that the district court did not err in its ruling.
CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Father presents an alternative argument to his claim that the district court
erred in overruling Father's motion for continuance. He claims that he received
ineffective assistance of trial counsel for his counsel's failure to have Thomas and Fisher
properly served with subpoenas to compel their testimony at the termination trial. For its
part, the State argues that this issue should not be considered on appeal because Father
did not raise the issue of ineffective assistance of counsel in the district court and did not
claim an exception to the general rule on appeal. In Father's reply brief he asserts that he
has not abandoned this argument. He claims that "[t]here are no factual issues which
preclude this Court from reviewing this claim as a matter of law." We disagree.
Generally, issues not raised before the district court may not be raised on appeal.
State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). However, there are exceptions
to this rule. An appellate court may consider an issue not raised in the district court if:
(1) the newly asserted theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case, (2) consideration of the theory is
necessary to serve the ends of justice or to prevent denial of fundamental rights, and (3)
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the district court's judgment was right for the wrong reason. State v. Phillips, 299 Kan.
479, 493, 325 P.3d 1095 (2014); see Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R.
34). Father's justification for our review of this issue appears to fall under the first
exception.
Generally, appellate courts will not consider an allegation of ineffective assistance
of counsel raised for the first time on appeal. State v. Salary, 309 Kan. 479, 483, 437 P.3d
953 (2019). The factual aspects of a claim of ineffective assistance of counsel usually
require that the matter be resolved through a request for remand to the district court for an
evidentiary hearing. See State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986)
On appeal, Father has not sought a remand to the district court for this purpose.
An appellate court may consider a claim of ineffective assistance of counsel for
the first time on appeal only when there are no factual issues and the two-prong
ineffective assistance of counsel test can be applied as a matter of law based upon the
appellate record. Salary, 309 Kan. at 483.
In order to prevail on a claim of ineffective assistance of trial counsel, Father must
show "(1) that the performance of defense counsel was deficient under the totality of the
circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would
have reached a different result absent the deficient performance.' [Citations omitted.]"
Salary, 309 Kan. at 483.
Under both prongs of the ineffective assistance of counsel test it is apparent that
our court is not privy to the totality of circumstances surrounding the failure to obtain the
two therapists' testimony. For example, we do not know about the prior communications
between Father's counsel and the two therapists regarding their proposed trial testimony.
Did the therapists initially agree to voluntarily testify or accept a Kansas subpoena, only
to suddenly change their minds on the day of trial or be constrained by their attorney's
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last-minute advice? On the other hand, was Father's counsel previously advised by the
two potential witnesses that they would not testify without service of a valid inter-state
subpoena and counsel simply failed to process the necessary paperwork to accomplish
that service in Missouri? The answers to these two questions are relevant to the
determination of whether Father's counsel was ineffective. Without the necessary facts
we are left to speculate as to whether the performance of Father's counsel was ineffective.
As to the prejudice prong of the ineffective assistance of counsel test—as
mentioned earlier in our discussion of Father's motion to continue—we have no trial
testimony or exhibits to show the importance of the therapists' testimony. On how many
occasions did they meet with Father? What counseling or treatment was employed to
address one or more of Father's diagnoses? Did the therapists have an opinion regarding
Father's prognosis? As is readily apparent, the facts necessary to determine whether
prejudice resulted from the failure to obtain the therapists' testimony are unknown.
In accordance with our general rule, we decline to review Father's claim that trial
counsel was ineffective because the issue is brought for the first time on appeal, and
Father has not shown that any of the three exceptions to the general rule are applicable
under the totality of circumstances.
Affirmed.
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