Opinion
No. 108,209.
2012-12-21
In the Interest of S.M.P., JR., and A.L.
Appeal from Wyandotte District Court; Daniel Cahill, Judge. Debera A. Erickson, of Kansas City, for appellant natural father. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.
Debera A. Erickson, of Kansas City, for appellant natural father. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM:
S.M.P., Sr., the natural father (Father) appeals the termination of his parental rights over S.M.P., Jr., (S.M.P.) and A.L. The trial court ordered termination pursuant to the Revised Kansas Code for Care of Children (RKCCC), K.S.A.2011 Supp. 38–2201 et seq. , and the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2006). We affirm the termination of parental rights.
Factual and Procedural Background
S.M.P. and A.L. were born in 2010 and 2008 respectively to Father, an immigrant to this country, and L.R.L., natural mother (Mother), a member of the Kickapoo tribe. Mother had previously lost her parental rights over three children conceived with other men. Father and Mother lived together but were not married.
When S.M.P. was born prematurely, the Department of Social and Rehabilitation Services (SRS) instituted a safety plan for the child. However, S.M.P. failed to gain weight, and social workers concluded Mother was not “following the provisions for feeding the child.” S.M.P. also developed a flattened skull, and social workers concluded Mother was not holding the child, which resulted in muscles so weakened that he could not turn over.
Mother has a long history of alcohol and drug abuse. A case worker who handled the termination cases for Mother's other children testified her substance abuse problems are essentially unchanged since that time. When S.M.P. Jr., was born, mother was on probation for driving under the influence, and she failed to report to probation officers or for outpatient treatment. Mother attended parenting time sporadically in the present case, failed to maintain contact with the case worker, and would disappear for up to 1 week. She was diagnosed with posttraumatic stress disorder, cocaine and alcohol dependency, and borderline personality disorder.
Mother tested positive for cocaine in November and December 2010. When Father tested positive for cocaine in January 2011, the SRS removed the children from the home. Both parents stipulated to a finding that the children were in need of care.
Mother eventually absconded from probation, which led to her imprisonment in March 2012 to serve a 12 month sentence. The children did not return home before the trial in April 2012.
At trial, Father offered into evidence what he claimed were receipts for rent payments. After it was established that most of the receipts were unsigned and post-dated the trial, Father withdrew the exhibit. Importantly, the trial court found that Father “had those receipts made in an attempt to perpetrate a fraud upon this Court, and his testimony must be taken in that light.”
The testimony in question was Father's stated intent to leave Mother and keep her from the children. The trial court found this testimony “completely and totally incredible.” Despite repeated advice from social workers to distance himself from Mother, Father applied for a marriage license in August 2011 and married Mother at some point before trial. Father informed social workers he had no intention of leaving Mother, and one social worker testified that the couple was dependent on each other. Still, Father and Mother would argue in front of the children during parenting time. For example, they would tell each other to “[obscenity] off,” an exchange which A.L. repeated to her foster mother and therapist. When Mother did not appear for parenting time, Father would claim she was present in an attempt to shield her from any adverse consequences. When Mother was in jail, Father spent his parenting time talking to her on the telephone or attempting to wire her money instead of tending to the children. Additionally, Father repeatedly visited Mother in jail, up to just weeks before trial.
Concluding that Father was “completely enmeshed with the [M]other, regardless of what she does,” the trial court found that Father was “either unable or unwilling to make that separation.” The trial court found clear and convincing evidence this was “the one circumstance” in which Father had failed to adjust to the needs of the children under K.S.A.2011 Supp. 38–2269(b)(8). It also found, apparently on the same basis, that Father had failed to carry out a reasonable integration plan under K.S.A.2011 Supp. 38–2269(c)(3). Lastly, the trial court found beyond a reasonable doubt that continued custody with Father was likely to result in serious emotional or physical damage to the children, the test under the ICWA, 25 U.S.C. § 1912(f) (2006). Accordingly, Father's parental rights were terminated. Father filed a timely appeal.
Analysis
Father contends the evidence was insufficient to terminate his parental rights under the RKCCC and ICWA. A brief discussion of these two separate legal standards is in order.
The RKCCC allows termination of parental rights over a child adjudicated a child in need of care, “when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for the child and the conduct or condition is unlikely to change in the foreseeable future.” K.S.A.2011 Supp. 38–2269(a).
The ICWA allows termination upon a “determination, supported by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f).
Any provision of the RKCCC which conflicts with the ICWA is preempted under federal law. In re A.J.S., 288 Kan. 429, 431–32, 204 P.3d 543 (2009). But unlike some jurisdictions, preemption is not at issue in the present case. Under Kansas statute, “proceedings concerning any child who may be a child in need of care are governed by the [RKCCC], ‘except in those instances when the court knows or has reason to know that an Indian child is involved in the proceeding, in which case, the [ICWA] applies.’ “ (Emphasis added.) In re M.F., 290 Kan. 142, 148–49, 225 P.3d 1177 (2010) (quoting K.S.A.2011 Supp. 38–2203[a] ). RKCCC's predecessor, the Kansas Code for Care of Children, K.S.A. 38–1501 et seq. , had a similar provision. See K.S.A. 38–1503(a); In re M.F., 41 Kan.App.2d 927, Syl. ¶ 1, 206 P.3d 57 (2009), aff'd290 Kan. 142, 225 P.3d 1177 (2010).
Because neither party appeals the trial court's finding that S.M.P. and A.L. are each “an Indian child as defined by the [ICWA],” we are convinced that the RKCCC is not applicable in this case. Under both state and federal statutes, this case is clearly controlled by the ICWA. See 25 U.S.C. § 1912; K.S.A.2011 Supp. 38–2203(a); In re M.F., 290 Kan. at 148–49 (discussing the concurrent jurisdiction of Kansas courts and tribal courts in ICWA cases).
Nevertheless, our court has, as a “practical” matter, directed district courts to apply the “test established under state law for termination of parental rights” before “applying the standard from the ICWA.” In re A.P., 25 Kan.App. 268, 277, 961 P.2d 706 (1998). This process does not “require that the state law elements for termination be proved beyond a reasonable doubt,” but rather it provides “a framework from which the trial judges and practicing attorneys are accustomed to working.” 25 Kan.App.2d at 277–78.
The trial court in this case faithfully followed our court's direction and made separate findings under the RKCCC and ICWA. Findings under the RKCCC are generally reviewed for clear and convincing evidence. K.S.A.2011 Supp. 38–2269(a); In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 (2008). In this regard, we must ask “whether, after review of all the evidence, viewed in the light most favorable to the State, [we are] convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence that the child was a CINC.” 286 Kan. at 705.
With regard to the “ultimate finding” under the ICWA, In re M .F., 290 Kan. at 156,i.e., whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child, we ask if the trial court's determination was “supported by evidence beyond a reasonable doubt.” 25 U.S.C. § 1912(f). Our court has framed this question as follows:
“The standard of beyond a reasonable doubt is used for review of sufficiency of the evidence in a criminal case. The same standard applies here: After reviewing all the evidence and considering that evidence in the light most favorable to the petitioner, is the appellate court convinced that a rational factfinder could find beyond a reasonable doubt that the parents' continued custody is likely to result in harm to the child? [Citation omitted.] It is appropriate to consider special needs of the individual child when making this assessment. [Citation omitted .]” In re A.P., 25 Kan.App.2d at 279.
We will first consider the RKCCC factors. Father complains that the trial court found a failure to adjust under K.S.A.2011 Supp. 38–2269(b)(8) based “solely” on his “alleged continued relationship with the Mother.” Father does not appear to challenge the trial court's additional finding that he failed to carry out a reasonable reintegration plan under K.S.A.2011 Supp. 38–2269(c)(3). Because the trial court used the same basis for both statutory factors, our analysis applies to both.
We agree that the trial court based its ruling on Father's continued relationship with Mother. The trial court stated from the bench:
“As to the Father, the one circumstances—the one circumstance, the one condition that—and the only one that he has failed to adjust or make an effort to adjust is to relieve himself of his relationship with the [M]other, knowing full well that she is inappropriate to be around children.”
On appeal, Father argues that the trial court did not order him to stay away from Mother and that he received mixed messages from social workers regarding the relationship. Father suggests the State bore a burden to produce “evidence that [he] would not have been able to comply ... if told to do so since he complied with every other order/directive.” Absent such evidence, Father appears to contend that the trial court could not terminate his parental rights.
The State did not bear a burden to prove Father had actually defied court orders or that he received no other advice regarding Mother. The critical question before the trial court was whether Father would continue his relationship with Mother. To answer that question the trial court could consider Father's behavior, which clearly showed an intent to remain with Mother. Although Father testified to a different intent at trial, we do not reweigh the evidence or pass on witness credibility. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011); In re Adoption of Baby Girl P., 291 Kan. 424, 430–31, 242 P.3d 1168(2010).
The trial court also found “clearly consistent” testimony that Father was informed that his relationship with Mother imperiled his parental rights. Having carefully reviewed the record, we believe this finding was well supported. We further agree with the trial court's observation that a reasonable parent would have recognized the danger Mother posed to S.M.P. and A.L. without a court order or advice from social workers.
This court has previously relied on a parent's failure to protect a child from the other parent as a basis to terminate parental rights. See In re J.D.D., 21 Kan.App.2d 871, 875–76, 908 P.2d 633 (1995). As the State notes, this court has done so even where that was the only evidence of unfitness. See In re Dodge, 8 Kan.App.2d 259, 655 P.2d 135 (1982). While there was evidence to the contrary here, we believe the State presented clear and convincing evidence that Father had not adjusted to meet the needs of the children, had failed to carry out a reasonable integration plan, and that this failure was unlikely to change in the foreseeable future. K.S.A.2011 Supp. 38–2269(a) and (b)(8).
Father suggests K.S.A.2011 Supp. 38–1583(b)(7) (repealed L.2006, ch. 200, § 120, Jan. 1, 2007) is at issue, but we believe the trial court mistakenly cited this subsection in its journal entry. The findings regarding Father concerned adjustment of circumstances under K.S.A.2011 Supp. 38–2269(b)(8), and carrying out an integration plan under K.S.A.2011 Supp. 38–2269(c)(3). The trial court's finding under K.S.A.2011 Supp. 38–2269(b)(7) was limited to Mother and so it is not relevant here.
Turning now to the ICWA standard, Father challenges the testimony of the State's expert, Laverne Haag. Father “does not allege that [Haag] did not have the education and experience to provide an expert opinion in a matter of Indian child welfare.” Instead, he argues that Haag “was provided with inadequate information to prove an expert opinion as to whether the parental rights of the parents should have been terminated.” We review this claim for an abuse of discretion, although the legal standard applied by the trial court is reviewed de novo. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 444, 228 P.3d 1048 (2010); In re M.F., 290 Kan. at 150.
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60–456(b).
Father contends, in the language of this statute, that Haag's opinions were not “based on facts or data perceived by or personally known.” Notably, however, Father did not object to Haag's testimony at trial on this particular basis. Without a specific and contemporaneous objection at trial, this issue was not preserved for appellate review. See K.S.A. 60–404; State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011).
We note that Father does not address the trial court's observation that other facts or data were, once again in the language of the statute, “made known to the witness at the hearing.” K.S.A. 60–456(b). Our review of the record confirms Haag was adequately informed “[t]hrough vigorous cross-examination,” as the trial court put it. Since Father does not brief this basis for Haag's opinion, we further deem the issue waived or abandoned on appeal. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707 (2010).
Finally, Father does not directly address the trial court's finding that his continued custody of S.M.P. and A.L. would likely result in serious emotional or physical damage to the children. We consider this issue similarly waived or abandoned on appeal. Having carefully examined the record, however, we conclude that the evidence supported the trial court's finding beyond a reasonable doubt. See 25 U.S.C. § 1912(f).
Affirmed.