NOT DESIGNATED FOR PUBLICATION
No. 122,422
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of A.C. and R.J.,
Minor Children.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed November 6,
2020. Affirmed.
Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellant natural mother.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before ATCHESON, P.J., SCHROEDER and WARNER, JJ.
PER CURIAM: K.L., the natural mother of A.C. and R.J., appeals the district court's
termination of her parental rights. Mother argues that the evidence presented did not
support the court's finding that she was an unfit parent and that terminating her parental
rights was not in the children's best interests. She also asserts procedural claims regarding
an evidentiary presumption of unfitness and the district court's denial of her request,
made the day of the termination hearing, to continue the proceeding. After carefully
reviewing the record and the parties' arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2018, the State filed its joint Child in Need of Care (CINC) Petition
and Motion for Termination of Parental Rights on behalf of Mother's two youngest
children, A.C. and R.J. In the months leading up to that filing, the Department for
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Children and Families (DCF) had received referrals concerning possible abuse of the two
children by Mother and her oldest son, who was living with her.
A.C. and R.J. had previously been adjudicated children in need of the State's care
in 2013. DCF placed the children with a foster mother during the pendency of that case;
the children were returned to Mother's care several months later.
In September and October 2018, DCF learned A.C. and R.J., then eight and five,
had been living with their former foster mother since May at Mother's request because
Mother had lost her housing. The children had continued to live with their former foster
mother, even after Mother secured housing for herself in late July, so they could remain
in the same school district. Mother would visit and talk to the children often, and the
children would stay at her house on weekends.
In November, DCF explained to the children's former foster mother that she risked
losing her foster care license if A.C. and R.J. continued to live with her. To remedy the
informal and undocumented fostering situation, the foster mother initially agreed to
become the children's guardian. But she later changed course for several reasons,
including that she would be held responsible if anything happened to the children when
they were in Mother's care—a risk that could impact both her foster-care and her teaching
licenses. When the foster mother changed her mind about a potential guardianship, DCF
held an internal meeting. Based on the Department's concerns regarding Mother's oldest
son (who lived with Mother) and Mother's own substance abuse problems, DCF
concluded A.C. and R.J. were children in need of care and initiated this action.
In its petition, the State took the position that Mother is presumptively unfit under
K.S.A. 2019 Supp. 38-2271(a)(3) because children in her custody had been found to be
children in need of care on two other occasions. The court placed A.C. and R.J. in
temporary custody. In February 2019, the court adjudicated them to be children in need
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of care, based largely on Mother's testimony that she could not provide day-to-day care
for their needs. The court then ordered the preparation of a 90-day achievement plan to
foster reintegration before the termination hearing.
Concerns about Mother's progress involved three key areas: drug use, mental-
health issues, and housing. At the termination hearing in July 2019, Mother testified that
she had used methamphetamine once or twice a month since February, which she blamed
on her housing circumstances and mental-health condition. During her case, Mother was
asked to complete over 10 urinalyses or hair-follicle tests. Three tests were positive for
methamphetamines, amphetamines, or both—including tests administered on the date of
the disposition hearing and the date of the termination hearing. Two tests were clean. And
Mother did not take the remaining tests. Mother also failed to complete a substance abuse
evaluation. Case workers called Mother throughout the proceedings to request drug
testing and to schedule meetings with Mother to discuss her case progress, but Mother
never attended these meetings.
Mother has multiple mental-health diagnoses, including borderline personality
disorder, post-traumatic stress disorder, generalized anxiety disorder, and bipolar
disorder. After her initial intake evaluation, she scheduled six appointments with a
therapist to address these conditions. She attended two of these appointments—the most
recent in March 2019—and canceled the other four. At the termination hearing, Mother
questioned the accuracy of the State's records of her therapy attendance and implied she
does not need formal therapy, as she can text prior therapists for advice and receives
support from online and community support groups.
Mother also has a history of housing instability that has continued after the
situation in May 2018 that led to the children living with their former foster mother. In
late October 2018, Mother and her adult son were evicted from their living arrangement.
From November 2018 to mid-June 2019, they cycled through living in a hotel, with a
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friend, and in her truck. She and her son eventually moved into a two-bedroom mobile
home in mid-June 2019, about six weeks before the termination hearing.
Mother's adult son has a history of anger problems and drug abuse. DCF had
previously investigated allegations that the adult son had thrown a large battery (which
Mother described as a brick) out of the window when he was angry and that he had
emotionally abused A.C. and R.J. Like Mother, the adult son has a history of drug use
and mental-health problems. Although Mother testified at the termination hearing that her
son was living with her temporarily (not permanently), she also stated that she would not
be willing to ask him to move out of the house if A.C. and R.J. were returned to her.
The court held the termination hearing in late July 2019. At the State's request, the
court took judicial notice of Mother's two prior CINC adjudications; Mother did not
object to this evidence. After hearing the witnesses' testimony and considering the other
evidence presented, the court terminated Mother's parental rights. It found that the State
had proved by clear and convincing evidence that Mother was unfit under K.S.A. 2019
Supp. 38-2269(b)(1), (3), (7), and (8), primarily due to her substance-abuse problems.
And the court also found, based on the two earlier CINC adjudications, that Mother was
presumptively unfit under K.S.A. 2019 Supp. 38-2271(a)(3). Finally, the court concluded
that termination was in the best interests of the children. Mother appeals.
DISCUSSION
A parent has a constitutionally protected liberty interest in the relationship with his
or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Thus,
before a court may terminate a person's parental rights, the State must prove that the
parent is unfit, that the conduct or condition that renders the parent unfit is unlikely to
change in the foreseeable future, and that termination of parental rights is in the best
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interests of the child or children in question. K.S.A. 2019 Supp. 38-2269(a), (g)(1). In
recognition of the fundamental importance of parental rights, any findings relating to a
parent's unfitness must be proved by clear and convincing evidence. K.S.A. 2019 Supp.
38-2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).
When reviewing a finding of parental unfitness, this court must determine, after
considering all the evidence in a light favoring the State, whether a rational fact-finder
could have found it highly probable that the parent was unfit. In re B.D.-Y., 286 Kan.
696, Syl. ¶ 4. We do not reweigh conflicting evidence, pass on the credibility of
witnesses, or otherwise independently decide disputed questions of fact. 286 Kan. at 705.
After finding a parent unfit—both at the time of the termination hearing and for
the foreseeable future—the district court must determine if termination of parental rights
is "in the best interests of the child." K.S.A. 2019 Supp. 38-2269(g)(1). This assessment
gives "primary consideration to the physical, mental and emotional health of the child."
K.S.A. 2019 Supp. 38-2269(g)(1). Because determining what is in a child's best interests
requires an exercise of the district court's discretionary judgment, drawn from the court's
experience, knowledge of the case, and pragmatic sense, we will only overturn a district
court's best-interests determination when it constitutes an abuse of discretion. In re R.S.,
50 Kan. App. 2d 1105, Syl. ¶ 2. A district court exceeds the broad latitude it is afforded if
it rules in a way no reasonable person would have under the circumstances, ignores
controlling facts or relies on unproven factual representations, or acts outside the
appropriate legal framework. State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 60,
392 P.3d 68 (2017).
On appeal, Mother contends the court should not have terminated her parental
rights, asserting that the evidence at her termination hearing was insufficient to prove she
was an unfit parent and that the court abused its discretion when it found termination to
be in the children's best interests. She also argues that although children in her care had
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twice before been adjudicated children in need of the State's care, the court erred in
applying a statutory presumption of her unfitness as a parent. Finally, she claims the court
abused its discretion when it denied her request for a continuance, which she raised orally
on the day of the termination hearing, because she needed more time to personally
prepare and review the case record. For the reasons we explain below, we find no error
and affirm the court's rulings.
1. The district court did not err in terminating Mother's parental rights.
Mother challenges the district court's termination of her parental rights, arguing
that the record was not sufficient to find her an unfit parent—either now or for the
foreseeable future—and that termination was not in her children's best interests. The
district court essentially made two alternative findings regarding Mother's unfitness.
First, the court found that the State had proved by clear and convincing evidence that
Mother was unfit under K.S.A. 2019 Supp. 38-2269(b)(1), (3), (7), and (8). And the court
also found that Mother was presumptively unfit under K.S.A. 2019 Supp. 38-2271(a)(3)
because children in her custody had twice before been adjudicated children in need of the
State's care. Mother contends both findings were erroneous.
We first consider the district court's findings under K.S.A. 2019 Supp. 38-2269(b).
The court found Mother to be an unfit parent under four statutory subsections:
"(1) Emotional illness, mental illness, mental deficiency or physical disability of
the parent, of such duration or nature as to render the parent unable to care for the
ongoing physical, mental and emotional needs of the child;
....
"(3) the use of intoxicating liquors or narcotic or dangerous drugs of such
duration or nature as to render the parent unable to care for the ongoing physical, mental
or emotional needs of the child;
....
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"(7) failure of reasonable efforts made by appropriate public or private agencies
to rehabilitate the family; [and]
"(8) 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)(1),
(3), (7), and (8).
Mother takes issue with the court's analysis under each individual subsection. But
as the State points out in its brief, these arguments are primarily requests that we reweigh
the evidence offered at trial and find Mother's account to be more convincing than the
other evidence presented. That is not the role of an appellate court, however. Appellate
judges are not present to hear testimony and consider and weigh the context of the
evidence presented—those matters in termination proceedings are left to the sound
judgment of the district court. Instead, our review is limited to determining whether
sufficient evidence was presented to support the district court's findings. See In re B.D.-
Y., 286 Kan. at 705.
The existence of any one of the statutory factors listed in K.S.A. 2019 Supp. 38-
2269, standing alone, can form the basis for terminating a person's parental rights. K.S.A.
2019 Supp. 38-2269(f). Here, the district court indicated that Mother's extensive history
with substance abuse was "primarily the reason" for its unfitness finding. The court noted
that Mother tested positive on the date of the termination hearing for methamphetamine
and amphetamines; Mother had also tested positive for these substances on the date of the
CINC disposition hearing in May 2019. And the court observed that Mother herself
testified she used methamphetamine once or twice a month from February 2019 through
the termination hearing six months later. Though, as Mother points out in her brief, she
tested negative on two occasions, this does not undermine the significant evidence of
Mother's drug use or change the fact that she did not show up for far more drug tests than
she passed during the pendency of this case. The evidence in the record supports the
district court's finding that Mother's substance abuse renders her unfit under K.S.A. 2019
Supp. 38-2269(b)(3).
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This finding, in and of itself, is sufficient to support the district court's conclusion.
But the record supports the court's findings that the State also proved the factors in
K.S.A. 2019 38-1168(b)(1), (7), and (8) by clear and convincing evidence. As to her
mental condition and diagnoses under section (b)(1), Mother testified that she recognizes
the importance of managing her mental-health conditions and noted that when they are in
check, she does not have issues with substance abuse. But whatever informal methods
she employed to address her needs, she failed to attend four of her six scheduled therapy
appointments. Unless Mother shared progress updates from these informal sources,
neither case managers nor the court could gauge Mother's progress in treating her mental-
health conditions. And to the extent Mother believed her drug use reflected her mental
health, she tested positive for methamphetamine use before two hearings in this case,
including the termination hearing. The record supports the district court's finding that
mother's mental-health conditions render her unfit to parent A.C. and R.J.
Turning to (b)(7) and (b)(8), Mother missed multiple urinalysis and drug testing
appointments and missed several therapy sessions. Although she had found housing a
month and a half before the termination hearing, she admitted that her home was in a
neighborhood unsafe for children. She also continued to live with her adult son, who has
a history of violence and emotional abuse toward A.C. and R.J., and refused to ask him to
find other housing. Again, the evidence in the record supports the court's findings by
clear and convincing evidence that reintegration failed despite the State's efforts and that
Mother had not adjusted her circumstances to make reintegration possible.
The evidence similarly supports the district court's finding that Mother's condition
is not likely to change in the foreseeable future. Throughout this case, Mother used drugs,
refused to submit several urinalyses, attended few therapy sessions, and declined
assistance from case workers. This conduct continued to the very day of the termination
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hearing. Mother's actions during the pendency of this case serve as a barometer for her
future conduct; it appears unlikely her condition will change in the foreseeable future.
Having concluded that the evidence in the record is sufficient to support the
district court's findings regarding Mother's unfitness under K.S.A. 2019 Supp. 38-
2269(b)(1), (3), (7), and (8), we need not consider in detail Mother's alternative argument
regarding another reason why the district court found Mother unfit—the presumption of
her unfitness under K.S.A. 2019 Supp. 38-2271(a)(3). Accord State v. Novotny, 297 Kan.
1174, 1180, 307 P.3d 1278 (2013) (appellate courts need not consider challenge to
district court's conclusion when alternative reason exists to uphold the court's decision).
We note, however, that this case is significantly different from In re K.R., 43 Kan.
App. 2d 891, 233 P.3d 746 (2010), which Mother references in her brief. There, the
parent had received no previous notice that a statutory presumption could apply, as the
presumption had not been mentioned in the State's petition or termination motion. Here,
the State informed Mother and the court that Mother was presumed unfit, in light of her
two previous CINC adjudications, in its petition and motion and again at the termination
hearing. At the hearing, Mother did not object when the district court took judicial notice
of those earlier adjudications. And Mother admitted in her testimony that children in her
custody had twice been adjudicated children in need of care; each of those adjudications
involved allegations of substance abuse—the court's primary concern in this case. Under
these circumstances, the district court did not err when it found that Mother had failed to
rebut the statutory presumption of unfitness under K.S.A. 2019 Supp. 38-2271(a)(3).
Mother also contends the district court erred by finding termination would be in
the best interests of her children. She notes that the children—who were five and eight
years old at the time of the termination hearing—know her and are bonded to her. She
asserts that instead of terminating her rights, the court should have recognized her efforts
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to protect her children (such as placing them with their former foster mother) and should
have given her more time to address her mental health, drug use, and housing.
Kansas law recognizes that children experience the passage of time differently
from adults. K.S.A. 2019 Supp. 38-2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176
P.3d 977 (2008). For children, a month or a year seems considerably longer than it would
for an adult. For this reason, courts generally lean toward permanent dispositions of
questions involving parental rights, rather than allowing cases to remain pending for long
and indefinite periods of time. This is particularly true where a court has found that a
person's fitness as a parent is not likely to change for the foreseeable future.
Mother made this same argument, seeking an alternative resolution or more time,
at the termination hearing. But the district court concluded that the children's need for
permanency, particularly because they have been adjudicated children in need of care in
the past, weighed in favor of a permanent disposition. Given the testimony and other
evidence submitted, the district court did not abuse its discretion when it found that
termination was in the best interests of the children's physical, mental, and emotional
health and needs. The court did not err in terminating Mother's parental rights.
2. The district court did not err in denying Mother's request for a continuance.
The termination hearing in this case was originally scheduled for early June 2019.
On the day the hearing was scheduled, Mother appeared in person and requested a
continuance, though the record before us does not reflect the reason for her motion. The
court granted her request and rescheduled the hearing for July 31, 2019.
On that date, before the introduction of evidence at the hearing, Mother personally
addressed the district court and asked the court to terminate her counsel. She indicated
she did not feel prepared to proceed with the termination hearing for several reasons. She
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informed the court that she had asked her attorney for "the whole case file" and had not
received it. She stated that she needed this information because she wanted to find out if
the State followed the proper procedure to place her children in foster care when they had
already been living with their former foster mother. (She acknowledged that there had
been an evidentiary hearing as to the question of the children's placement, but she wanted
to personally ask questions of the witnesses.) And she indicated she did not understand
the termination process and was upset that her attorney had only spent about 15 minutes
speaking with her the night before the termination hearing and about 5 minutes the day of
the hearing.
The court then addressed Mother's attorney, asking whether she wished to clarify
anything for the record. The attorney indicated that she had many conversations with
Mother leading up to the termination hearing. She would not disclose the content of those
conversations, but the attorney indicated she had spoken with Mother the night before the
termination hearing and had asked if Mother had any questions she needed addressed,
though that conversation was "not terribly lengthy." The attorney stated she had always
"answered whatever questions [Mother had]" and had been "available to her." And the
attorney indicated that she did not believe that there was any aspect of the case that had
not been provided to Mother or discussed with her.
The court denied Mother's request. The court noted that if Mother was represented
by counsel, it was the attorney (and not Mother) who would question witnesses during an
evidentiary hearing. The court also explained that to the extent Mother wanted the
opportunity to provide her side of the story, she could do so during her testimony at the
hearing that was about to begin.
On appeal, Mother argues that the district court should have viewed her request as
a motion for a continuance since she did not understand the process going on around her.
And Mother also argues that her statements before the termination hearing demonstrate
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that her attorney provided her ineffective assistance of counsel. Either way, she argues
that the case should be remanded to allow her a new termination hearing.
In a proceeding under the Kansas Code for Care of Children, a court may only
grant a continuance for good cause. K.S.A. 2019 Supp. 38-2246. A court must consider
the child's best interests when considering a continuance. See K.S.A. 2019 Supp. 38-
2267(a). And "'a court must consider all circumstances, particularly such matters as the
applicant's good faith, [her] showing of diligence, and the timetable of the lawsuit.'" In re
J.A.H., 285 Kan. 375, 385, 172 P.3d 1 (2007). Appellate courts review the denial of a
continuance for an abuse of discretion. 285 Kan. at 384-85.
Although the district court could have explained the reasons for its denial of
Mother's request in greater detail, that denial was not an abuse of discretion. Mother
raised multiple issues: whether the State followed the proper procedures when placing her
children in temporary custody, her own lack of preparation and communication with her
attorney, her inability to directly question witnesses, and that evidence refuting
allegations in the State's CINC petition was not presented. But as the State indicated
before the district court and now argues on appeal, several of these questions—such as
the evidence supporting the court's temporary-placement determinations and whether
Mother could personally question earlier witnesses—were not germane to the termination
hearing. Mother's more oblique complaints regarding her attorney's communication and
her familiarity with the case conflicted with her attorney's explanations. The court did not
abuse its discretion in denying a further delay in proceedings, particularly since Mother
had requested a continuance on the morning of the previously scheduled termination
hearing.
Finally, to the extent Mother is now construing her request before the hearing as
an allegation that her attorney was ineffective, appellate courts generally do not address
claims alleging ineffective assistance of counsel when they are raised for the first time on
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appeal. State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019). But more importantly
for purposes of our review, Mother makes no argument as to how her case would have
come out differently if the court would have granted her request to terminate counsel and
thus cannot show that any action of her attorney prejudiced her in this case. See Sola-
Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S.
1267 [1984]) (a party asserting ineffective assistance of counsel must show that a
different result would have occurred without the lawyer's deficient performance).
The State presented evidence at the hearing that despite the efforts of case workers
and the court, Mother continued to use drugs, did not participate in therapy, and did not
adjust her living circumstances to allow for reintegration with her children. Mother
recognizes that evidence was offered on these points, though she believes the court
should have found her explanations more persuasive. But Mother offers no explanation as
to how the court's denial of her request to terminate her counsel affected the outcome of
the termination hearing, other than vague speculation that she might have been more
prepared if the hearing had occurred at a later date. The date of the hearing, however,
would not alter the compelling evidence the State would present to the court.
Mother has not shown that the outcome of the termination proceeding would have
been different if the hearing would have taken place on a different date. Without a
showing of prejudice, Mother cannot succeed on her claim for ineffective assistance of
counsel. The district court did not err when it denied Mother's oral request to terminate
her counsel and proceeded with the termination hearing scheduled that day.
Affirmed.
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