In re L.B. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,538
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of L.B.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER, judge. Opinion filed July 1,
2022. Affirmed.
Jordan E. Kieffer, of Jordan Kieffer, P.A., of Bel Aire, for appellant natural mother.
Kristi D. Allen, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: The natural Mother of the minor child, L.B., appeals the
termination of her parental rights. After Mother failed to appear at the termination
hearing, the State of Kansas proffered its evidence regarding Mother and the district court
entered what it characterized as a "default judgment" against her. Mother contends her
trial counsel was ineffective for failing to seek to set aside the termination order. After
careful review of the record, the decision of the district court is affirmed for the reasons
explained below.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2019, the State filed a child in need of care petition alleging that four-year
old L.B. was a child in need of care and should be removed from her parents' custody.
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Although the proceedings at issue also terminated the rights of L.B.'s father, he has not
appealed, so we consider the record only from Mother's perspective.
Minor child, L.B., was removed from Mother's custody in July 2019 and placed in
protective custody due to Mother's abuse of alcohol and its impact on her ability to
adequately care for L.B. In September 2019, L.B. was adjudicated a child in need of care.
Soon after L.B.'s out-of-home custody placement, the district court, the Kansas
Department for Children and Families (DCF), and other social services initiated a case
plan with the goal of reintegration, ordering Mother to engage in such activities as
substance abuse treatment, random urinalysis tests, therapy, and permitted supervised
visits with L.B. However, Mother failed to meet the case plan goals.
Given the lack of success with these goals, in November 2020 the State moved for
a finding of unfitness and termination of parental rights. A pretrial hearing was held in
early March 2021, at which Mother appeared in person, and the district court suspected
she was under the influence of alcohol. The district court ordered Mother to submit to
testing and she tested positive for alcohol. After her positive test, Mother admitted to
consuming alcohol the afternoon of the pretrial hearing.
Mother did not appear at the May 2021 termination hearing. Mother's attorney
noted that she had met with Mother in the intervening time since the pretrial hearing and
had spoken with her on the phone the night before the termination hearing. Mother's
attorney reported that Mother was "working hard to try to stay sober" and that Mother
wanted her counsel to request a continuance so that Mother could continue showing she
could remain sober. But Mother's attorney admitted that she could not tell the court why
Mother was not present. Mother's counsel requested a continuance on the record. Both
the State and the guardian ad litem opposed continuance. Given the length of time since
removal of L.B., the district court denied the requests for continuance and found Mother
in default.
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The termination hearing proceeded with the State's proffer of its motion for a
finding of unfitness and termination of Mother's parental rights and a report prepared by
Saint Francis Ministries (SFM). The SFM report, which tracked Mother's progress from
August 2020 to May 2021, provided an overview of the steps Mother took to comply
with her case plan requirements and the repeated problems she had in doing so.
The report outlined Mother's difficulties with stable housing, substance abuse, and
attempts at treatment and therapy and concluded by noting that Mother and Father had a
recent domestic violence incident. The report went on to state that Mother "failed to
demonstrate she is able to care for herself, let alone [L.B.] and her needs." According to
SFM, if Mother were to demonstrate that she could make secondary changes, she would
need to show consistent progress for at least six months before SFM would recommend
reintegration, and given the history of the case, it would not be in L.B.'s best interests to
do so. To that end, SFM recommended that Mother's parental rights be terminated.
Following the State's proffer of its motion and the SFM report, and all parties'
stipulation to the State's proffer of evidence, the district court determined that Mother
was an unfit parent and that termination of Mother's parental rights was in the best
interests of L.B. under multiple subsections of K.S.A. 2020 Supp. 38-2269(b) and (c).
The district court found that Mother was unfit due to: (1) the use of intoxicating liquors
or narcotics or dangerous drugs of such duration and nature are to render her unable to
care for the ongoing physical, mental, or emotional needs of L.B.—K.S.A. 2020 Supp.
38-2269(b)(3); (2) the failure of reasonable efforts made by appropriate public or private
agencies to rehabilitate the family—K.S.A. 2020 Supp. 38-2269(b)(7); (3) a lack of effort
on Mother's part to adjust her circumstances, conduct, or conditions to meet L.B.'s
needs—K.S.A. 2020 Supp. 38-2269(b)(8); (4) a failure to maintain regular visitation,
contact, or communication with L.B. or her custodian—K.S.A. 2020 Supp. 38-
2269(c)(2); (5) and a failure to carry out a reasonable plan approved by the court directed
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toward reintegration of the child into the parental home—K.S.A. 2020 Supp. 38-
2269(c)(3). The court also noted under K.S.A. 2020 Supp, 38-2269(b)(9), the child has
been in the custody of the secretary and placed with neither parent for 15 of the most
recent 22 months.
The court found that the factors of unfitness set out against Mother are supported
by clear and convincing evidence and are unlikely to change in the foreseeable future.
The court determined that termination of Mother's parental rights is in the best interests
of the child.
Mother filed a timely notice of appeal.
ANALYSIS
On appeal, Mother argues that her trial counsel was ineffective because she failed
to move to set aside the "default" termination order entered against Mother. But because
Mother had previously appeared in this case, and her counsel was present for the
termination hearing, this court does not consider the order to be one of default. Rather,
the court considers the better-framed issue to be whether Mother's trial counsel was
ineffective for failing to request that the district court set aside its termination order.
Because there was no evidentiary hearing in the district court on the issue of
ineffective assistance of counsel, this court reviews the record to determine whether relief
can be granted using a de novo standard. See State v. Salary, 309 Kan. 479, 483-84, 437
P.3d 953 (2019). Although ineffective assistance of counsel claims are generally
examined in criminal cases, this court has considered such claims in termination of
parental rights cases. See In re A.B., No. 111,483, 2015 WL 249768, at *6 (Kan. App.
2015) (unpublished opinion) (citing In re Rushing, 9 Kan. App. 2d 541, Syl. ¶ 3, 684 P.2d
445 [1984]).
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In her appellate brief, Mother cites authority outlining her fundamental right to
parent her child and the standard for prevailing on a claim of ineffective assistance of
counsel. See State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015); In re Application
to Adopt H.B.S.C., 28 Kan. App. 2d 191, 195-96, 12 P.3d 916, 920 (2000). We do not
disagree with her references. However, Mother's rather concise legal analysis fails to
provide any citations to legal authority which might support her argument that failure to
seek to set aside the termination order is tantamount to ineffective assistance of counsel.
Failure to support a point with pertinent authority or failure to show why a point is sound
despite a lack of supporting authority or in the face of contrary authority is like failing to
brief the issue. In re Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018).
Issues not adequately briefed are deemed waived or abandoned. In re Marriage of
Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018). Mother's failure to adequately
support her argument is akin to failing to brief the issue, and we find her argument
waived.
But even if we do not consider her argument waived, the State argues that Mother
cannot now raise her ineffective assistance claim for the first time on appeal. The State's
argument is generally correct, as an appellant is typically not allowed to raise an
ineffective assistance of counsel claim for the first time on appeal. See State v. Dull, 298
Kan. 832, 839, 317 P.3d 104 (2014).
The proper procedure for addressing a potential ineffective assistance of counsel
claim for the first time on a direct appeal is for appellate counsel to seek remand to the
district court so that the facts relating to the claim can be resolved by the trial court. State
v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986); In re J.W., No. 106,561, 2012
WL 2621154, at *2-6 (Kan. App. 2012) (unpublished opinion). After all, the district court
"observed [trial] counsel's performance and . . . is in a much better position to consider
counsel's competence than an appellate court is in reviewing the issue for the first time
from a cold record." Van Cleave, 239 Kan. at 119. However, the appellate court will only
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remand a case to the district court in instances where the ineffective assistance of counsel
claim demonstrates merit. 239 Kan. at 120 (quoting State v. Shepherd, 232 Kan. 614,
620, 657 P.2d 1112 [1983]).
Under extraordinary circumstances, an appellate court may consider an ineffective
assistance of counsel claim for the first time on appeal—if 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 483-84.
Other panels of this court, while stopping short of an ultimate determination that
the Van Cleave remand procedure applies in termination of parental rights cases, have
applied the same framework to determine whether to remand a case to the district court
for consideration of the assistance of counsel issue. In In re J.W., 2012 WL 2621154, at
*2-6, the panel discussed whether a remand to district court was appropriate under Van
Cleave in a termination of parental rights case, but in that case, the appellant specifically
sought remand for an evidentiary hearing. Likewise, in In re A.B., the appellant appealed
but then sought to stay his appeal, requesting remand to the district court for a hearing on
his ineffective assistance of counsel claim. 2015 WL 249768, at *9. Similarly, in In re
F.G., No. 114,602, 2016 WL 4259928, at *7 (Kan. App. 2016) (unpublished opinion), a
panel of this court addressed the applicability of Van Cleave to termination proceedings
and determined remand for a Van Cleave hearing was unnecessary.
But even assuming that Van Cleave applies in termination of parental rights cases,
an appellate court is not obligated to sua sponte remand for an evidentiary hearing if the
record is insufficient to allow the claim to be addressed without further findings and the
appellant has not requested a remand to the district court. See Mundy v. State, 307 Kan.
280, 299-300, 408 P.3d 965 (2018). Here, both conditions—insufficiency of the record
and lack of request for remand—apply.
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Although perhaps a Van Cleave hearing would have been helpful in evaluating the
bases for her claim, Mother did not request that the case be remanded for a Van Cleave
hearing—she requested only reversal of the termination order. Mother also provides no
arguments whatsoever that the absent motion to set aside the order might have been
fruitful. And, the record before this court is simply insufficient to allow Mother's claim of
ineffective assistance to be addressed.
The sole issue presented by Mother is that her trial counsel should have requested
the district court set aside its termination order. However, the "facts" she uses to support
her claim are unsubstantiated in the record before us. For example, she notes Mother's
alleged mistaken impression regarding the effect of her decision not to attend the
termination hearing, and the claimed lack of clarity of the need for her attendance.
Mother also claims trial counsel did not attempt to contact her after the termination
findings. However, none of these alleged facts are substantiated. These unsupported
statements, together with a complete absence of any contention or argument that a
posttrial motion would have been successful, does not support a remand of this case to
the district court for further consideration, especially when there apparently has been no
consultation with trial counsel regarding the reason for her inaction.
Given Mother's lack of request for remand and the insufficiency of the record on
appeal, we do not find a basis for remanding this case to the district court for further
consideration of Mother's claim of ineffective assistance of trial counsel. Further, we do
not need to analyze the merits of the ineffective assistance claim under the two-prong
Strickland test, Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), adopted by Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468(1985), given the lack of request for a Van Cleave hearing and Mother's failure to analyze
the merits of the claim in her brief. See Mundy, 307 Kan. at 299-300; Dull, 298 Kan. at
839.
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Because Mother does not ask us to determine sufficiency of the evidence
supporting the termination of her parental rights, we do not consider this issue.
Affirmed.
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