In re R.J.

NOT DESIGNATED FOR PUBLICATION
No. 122,230
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of R.J.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed January 15, 2021.
Affirmed.
Anita Settle Kemp, of Wichita, for appellant father and father, appellant pro se.
Jennifer M. Hill, of McDonald Tinker PA, of Wichita, for appellee.
Before BUSER, P.J., ATCHESON, J., and BURGESS, S.J.
PER CURIAM: This is an appeal of the district court's judgment finding that R.J., a
minor child born in 2006, is a child in need of care as to his Father and that due to
Father's unfitness, his parental rights should be terminated. On appeal, Father raises
several procedural issues and matters challenging the sufficiency of the evidence. Upon
our review, we conclude that none of the issues raised by Father merit the reversal of the
district court's judgment. Accordingly, we affirm.
BRIEF FACTUAL AND PROCEDURAL BACKGROUND
On November 20, 2018, Mother filed a combined pleading comprised of a private
child in need of care (CINC) petition on behalf of her son, R.J., and a motion to terminate
Father's parental rights. The district court appointed an attorney to represent Father.
Pretrial hearings were held at which time the district court issued rulings which are
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discussed in the analysis section of this opinion. On September 5, 2019, four days before
the termination hearing, Father filed a pro se counter petition for termination of parental
rights in which Father made several claims against Mother. The counter petition is not an
issue in this appeal.
On September 9, 2019, the district court held a hearing on the combined motion
relating to Father's parental rights to R.J. After addressing pretrial issues, which are
discussed later in this opinion, Mother presented the testimony of Amy Meek, a licensed
therapist who began counseling R.J. in July 2018. This counseling continued to the time
of the termination hearing.
As detailed later during her testimony, Meek opined about R.J.'s mental and
physical health, his feelings towards Father, and his issues with safety, trust, and trauma.
Meek testified that, in her opinion, it was in R.J.'s best interests to terminate Father's
parental rights. Mother rested her case at the end of Meek's testimony.
Father was the sole witness in his case in chief. Among other topics, Father
testified he was currently incarcerated after a jury convicted him in 2012 of two counts of
solicitation to commit murder in the first degree. The proposed victim of the scheme was
Father's ex-wife and R.J.'s mother. Although Father was unsuccessful in his direct appeal,
he indicated he had filed a motion to correct an illegal sentence before the Kansas Court
of Appeals, and a habeas corpus action was pending before the federal district court. As a
result, Father testified he was "100 percent confident" his criminal convictions would be
reversed, and he would be out of prison sometime before March 4, 2022—his earliest
possible release date.
At the conclusion of the evidence, the district court found Father was unfit to
parent R.J. under K.S.A. 2019 Supp. 38-2269(b)(4), (b)(5), (b)(7), (b)(8), (c)(2), (c)(3),
and (d). In particular, the district court found Father's solicitation attempts to murder
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Mother "inflicted severe psychological abuse upon the child" under subsection (b)(4) and
Father's convictions qualified to establish unfitness under subsection (b)(5) because the
convictions were severity level 3 person felonies. The district court also found that based
on Father's release date, R.J. probably will not see Father until after he is 18 years old.
Upon considering child time and the physical, mental, and emotional health of R.J., the
district court concluded it was in R.J.'s best interests to terminate Father's parental rights.
Regarding the CINC petition, the district court specifically made findings under K.S.A.
2019 Supp. 38-2202(d) and K.S.A. 2019 Supp. 38-2251 in concluding that R.J. was a
child in need of care.
Father appealed and was appointed appellate counsel who filed a brief on his
behalf. Subsequently, Father also filed a pro se supplemental brief.
PROCEDURAL ISSUES
At the outset, Father raises a variety of procedural issues relevant to the
proceedings in the district court. We will address those issues individually.
Jurisdiction and Venue of the Proceedings
In his pro se supplemental appellate brief, Father claims that Sedgwick County
was not the proper jurisdiction or venue to conduct these proceedings. Father initially
sought to transfer venue from Sedgwick County District Court to Johnson County District
Court at the January 2019 hearing. He argued the proceedings should be transferred to
Johnson County because that is the county which had jurisdiction over Father's criminal
case and Mother and Father's divorce action. In response, Mother argued that venue was
statutorily authorized under K.S.A. 2019 Supp. 38-2204(a) because Mother and R.J.
resided in Sedgwick County when the petition was filed. The district court denied
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Father's motion and held that jurisdiction and venue were appropriate in Sedgwick
County.
On appeal, Father contends the Sedgwick County District Court lacked
jurisdiction to consider this CINC action because the Johnson County District Court had
acquired jurisdiction when it "issued orders, e.g., protective custody and removal of [R.J.]
from custody of Mother" and this jurisdiction "still is continuous over [R.J.]." Father also
asserts that venue was improper in Sedgwick County because he does not reside there and
his home "remain[s] in Johnson County, KS" despite his incarceration in Hutchinson.
Whether jurisdiction exists is a question of law over which our court's scope of
review is unlimited. In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82(2017). Venue is a matter of jurisdiction. State v. McElroy, 281 Kan. 256, 264, 130 P.3d
100 (2006), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332(2016). Whether venue is proper is a question of law over which an appellate court has
unlimited review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560(2006); McElroy, 281 Kan. at 264. In Kansas, statutes determine the proper venue for
CINC proceedings. The interpretation and application of a statute is likewise a question
of law over which an appellate court has unlimited review. See LSF Franchise REO I v.
Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
Under K.S.A. 2019 Supp. 38-2203(c), a district court "acquires jurisdiction over a
child by the filing of a petition pursuant to this code." The jurisdiction "may continue"
until the child becomes 18 years old, has been adopted, or has been discharged by the
court. K.S.A. 2019 Supp. 38-2203(c). Moreover, relevant to this appeal, as a general rule,
any order issued under the revised Kansas Code for Care of Children (KCCC) "shall take
precedence over such orders in a civil custody case." K.S.A. 2019 Supp. 38-2203(f). As a
result, as opposed to Johnson County, the Sedgwick County District Court correctly
determined it had jurisdiction upon the filing of the CINC petition in Sedgwick County.
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Sedgwick County was also the appropriate venue to file the CINC petition. Under
K.S.A. 2019 Supp. 38-2204(a): "Venue of any case involving a [CINC] shall be in the
county of the child's residence or in the county where the child is found." (Emphasis
added.) Here, the record shows R.J. had been living in Sedgwick County for six years.
Father concedes Sedgwick County "might be [the] proper venue for the CINC action" but
claims it is improper for the "termination of parental rights action" because Father does
not live there. But, as stated in K.S.A. 2019 Supp. 38-2204(a), Sedgwick County would
be appropriate for termination proceedings because Father's termination is "any case
involving a [CINC]." As a result, the district court did not err in finding venue was proper
in Sedgwick County and declining to transfer venue to the Johnson County District
Court.
Claim of a Due Process Violation
For the first time on appeal, Father contends he was denied due process when the
district court failed to hold a separate hearing for adjudicating R.J. as a child in need of
care instead of combining the adjudication and termination matters at the time of the
termination hearing. Father argues Kansas statutory and common law require
adjudication to occur before proceeding to termination and the district court's failure to
adhere to this procedure violated his due process rights to "be heard at a meaningful time
in a meaningful manner."
This case began with Mother filing a combined pleading comprised of a private
CINC petition on behalf of her son, R.J., and a motion to terminate Father's parental
rights. The record reveals that, without Father's objection, the adjudication phase and
termination phase were combined throughout the pretrial hearings and termination
hearing.
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On April 12, 2019, the district court held a pretrial conference. At this hearing, the
district court inquired whether, given the fact that Father was incarcerated, he wished to
stipulate to R.J. being a child in need of care. Father declined. The district court
acknowledged Father's position and noted that presentation of evidence about the CINC
matter would not take very long and the matter of parental fitness was the principal issue
in the proceeding. The district court indicated that the CINC adjudication "will be the
first thing we will take up at the hearing."
Three months after the pretrial conference, the district judge initially assigned to
the case recused himself and the case was transferred to Judge Kevin M. Smith, who
presided over the termination hearing. At the termination hearing, the parties addressed
pretrial issues and proceeded with the presentation of evidence. After the district court
determined that Father was unfit to parent and it was in R.J.'s best interests to terminate
Father's parental rights, Mother's counsel asked the district court to make specific
findings that R.J. was a child in need of care. The district court complied.
Preliminarily, although Father had numerous opportunities to object to the conduct
of the combined proceedings in the district court, he did not object at any time. This is
important because issues not raised before the trial court may not be raised on appeal.
Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). While there
are three primary exceptions to this general rule, on appeal Father does not assert any
exception. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014) (listing
exceptions).
As provided in State v. Williams, 298 Kan. 1075, Syl. ¶ 4, 319 P.3d 528 (2014):
"Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39-40) provides that a
party briefing an issue on appeal must make a reference to the specific location in the
record on appeal where the issue was raised and ruled upon. If the issue was not raised
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below, there must be an explanation why the issue is properly before the court. A party
failing to explain why an issue being raised for the first time on appeal is properly before
the court risks having that issue deemed waived or abandoned."
Of particular relevance given the due process issue that Father raises on appeal for
the first time, is State v. Godfrey, 301 Kan. 1041, 350 P.3d 1068 (2015). In Godfrey the
defendant in a criminal case sought to raise a due process argument for the first time on
appeal. Our Supreme Court, citing Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R.
Annot. 40), held that it
"requires an appellant raising a constitutional issue for the first time on appeal to
affirmatively invoke and argue an exception to the general rule that such claims may not
be raised for the first time on appeal. Failure to satisfy Rule 6.02(a)(5) in this respect
amounts to an abandonment of the constitutional claim." 301 Kan. 1041, Syl.
Moreover, citing Williams, the Supreme Court reiterated, that "Rule 6.02(a)(5)
means what it says and is ignored at a litigant's peril." Godfrey, 301 Kan. at 1043.
Godfrey's due process claim was not reviewed by our Supreme Court.
Father's failure to object to the combined CINC and termination proceedings in the
district court is consequential. This failure resulted in the district court not having an
opportunity to rectify any infirmities in the conduct of the proceedings. We find this
omission precludes our appellate review. Moreover, Father also failed to comply with
Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34) because he did not
"affirmatively invoke and argue" an exception to the general rule against raising new
issues for the first time on appeal. On this additional basis, Father's statutory and due
process claims are not properly before us, and we find the issue is waived or abandoned.
Williams, 298 Kan. 1075, Syl. ¶ 4.
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Lastly, assuming Father's contention is correct and the district court erred when it
terminated Father's rights at the same hearing it adjudicated R.J. as a child in need of
care, he does not show that his statutory or due process rights were adversely affected by
this procedure. Our review of the record on appeal shows that despite Father's complaint
that the combined proceedings prevented him from being heard at a meaningful time and
in a meaningful manner, he fails to show how the procedure employed by the district
court limited his ability to question Mother's witness or challenge her evidence, present
his testimony and evidence, and make arguments to the district court. In short, Father has
failed to show how the combined proceeding adversely impacted his statutory or due
process rights in any way.
Failure to Inform R.J.'s Prior Guardian Ad Litem About the Proceedings
In his pro se appellate brief, Father asserts the district court erred by not informing
Valerie Moore, who served as guardian ad litem (GAL) for R.J. in the Johnson County
divorce proceeding about the Sedgwick County CINC and termination proceedings.
Father claims that Moore could have provided favorable information regarding his
relationship with R.J. and unfavorable information about Mother's relationship with her
son. Father asserts that Moore is R.J.'s "permanent" GAL. Of note, in the current
proceedings, R.J. is represented by a GAL appointed by the Sedgwick County District
Court.
We are persuaded that Father's claim of error is not meritorious. First, Father has
not provided our court with any legal precedent that mandates that a district court in a
CINC proceeding has a legal obligation to notify a GAL in a previous divorce proceeding
in another county about the latest CINC proceeding involving the same child. Failure to
support a point with pertinent authority is akin to failing to brief the issue. In re Adoption
of T.M.M.H., 307 Kan 902, 912, 416 P.3d 999 (2018). Second, Father does not explain
why he, personally, or his counsel in the CINC or divorce proceedings could not have
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contacted Moore to advise her of the CINC proceedings or to subpoena her attendance at
the termination hearing. This was not the responsibility of the district court.
Lastly, Father has not shown prejudice. Although he conclusively asserts that
Moore had information that could have benefitted Father's case, he has not identified any
such testimony or documents. Our review of the record, however, discloses that Moore
possessed information unfavorable to Father's case. For example, Moore filed a pleading
in Johnson County District Court seeking to terminate Father's rights to visitation in the
divorce proceeding based on his arrest for soliciting Mother's murder. Under all these
circumstances, we find the district court did not err.
Notice to Paternal Grandparents Regarding the Termination Hearing.
Father complains that R.J.'s paternal grandparents did not receive written notice of
the termination hearing. In proceedings regarding the termination of parental rights,
K.S.A. 2019 Supp. 38-2267(a) and (b)(1) require the district court to provide notice of the
hearing to the child's grandparents at their last known address. At the beginning of the
hearing, the district court must determine whether due diligence has been exercised in
determining the identity and location of a child's grandparents and in accomplishing
service of process. K.S.A. 2019 Supp. 38-2267(c).
The paternal grandparents are divorced. At the termination hearing, the district court
heard arguments from the parties and conferred with a court service officer (CSO), who
stated that she spoke with paternal grandmother a week before the hearing and
grandmother was informed of the hearing date and time. Mother's counsel stated she had
sent paternal grandfather written notice of the two prior hearings, but she did not send
written notice of the latest termination hearing. Mother's counsel also stated that paternal
grandfather had not "filed anything related to this matter" and he had not contacted her or
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the CSO since the proceedings began. The CSO then attempted to contact paternal
grandparents by telephone from the courtroom, but she was unable to contact either one.
After hearing extended arguments, the district judge ruled:
"[F]irst of all, I do acknowledge that as far as objecting based on notice, typically the
party who doesn't receive the notice is the one that has to make the motion. Based on that,
Father does not have standing to challenge either grandparent's notice.
"As to [paternal] Grandmother, based on the statements that are already on
record, I do find that Grandmother has been provided notice of this hearing.
"Additionally, pursuant to K.S.A. 38-2267(b)(3), it states, 'The provisions of this
subsection shall not require additional service to any party or interested party who could
not be located by the exercise of due diligence in the initial notice of the filing of a
petition for a [CINC].'
"I do acknowledge that [Mother's counsel] did what she is required to do under
statute. She did at least send by U.S. mail notice for at least two hearings to paternal
grandfather. At no point did he file an entry in this case. At no point has he appeared in
his case. That would indicate to me that it's possible that effectively—since Grandfather
didn't respond, that he effectively could not actually be located.
"So in that case, number one, I do find that [Mother's counsel] did exercise due
diligence in sending that notice via U.S. mail, but, second, I don't find any additional
actions were required since, again, paternal grandfather never responded to that notice
that was provided.
"And, again, just to reiterate, Grandfather needs to actually assert any objection
based on the notice issue. And, again, I further reiterate that Grandmother was noticed
and acknowledged that notice by engaging in conversation with [the CSO], as well as
filing her motion for interested party status."
On appeal, Father does not object to any of the factual findings made by the
district court. He also does not challenge or brief arguments regarding the district court's
ruling that Father lacked standing to object to any deficient notice provided to the
paternal grandparents. Lastly, he "does not contest the district court's 'due diligence'
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finding." Instead, Father contends the district court made an error of law because
"[s]ervice was not attempted, and lack of service is reversible error if Father can establish
prejudice."
At the outset, Father's failure to appeal the district court's ruling that he lacked
standing to object on behalf of the paternal grandparents is consequential. It is well
settled law that an issue not briefed is deemed waived or abandoned. State v. Arnett, 307
Kan. 648, 650, 413 P.3d 787 (2018). There is another reason Father's failure to brief the
district court's ruling on standing is important. When a district court provides alternative
bases to support its ultimate ruling on an issue and an appellant fails to challenge the
validity of both alternative bases on appeal, an appellate court may decline to address the
appellant's challenge to the district court's ruling. National Bank of Andover v. Kansas
Bankers Surety Co., 290 Kan. 247, 280, 225 P.3d 707 (2010).
In the present case, the district court ruled that Father did not have standing to
object to notice and that notice was proper according to statutory requirements. Father
only contests the latter basis for the district court's ruling and does not brief the former
basis. Accordingly, we find this issue is waived or abandoned, and we decline to review
Father's complaint regarding notice to the paternal grandparents.
Finally, we note another failure by Father on appeal. He acknowledges in his brief
that any error in giving notice to the child's grandparents is grounds for reversal only if
there is a showing of prejudice. See In re Ch.W., No, 114,034, 2016 WL 556385, at *8
(Kan. App. 2016) (unpublished opinion).
Assuming there was error in the alternative ruling made by the district court,
Father does not establish that any lack of notice was prejudicial to him. As to paternal
grandfather, Father does not allege any prejudice as a result of a lack of notice. As to
paternal grandmother, Father's prejudice argument consists of one sentence: "Father
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argues paternal grandmother could provide relevant evidence and testimony regarding the
bond the child had with his father prior to incarceration and attempts [at] making contact
while incarcerated." This statement is conclusory and does not convey enough
information regarding the extent or significance of the potential testimony to permit an
appellate court to evaluate whether the omission of this evidence was prejudicial to
Father. See In re Ch.W., 2016 WL 556385, at *8 ("Father does not point to any evidence
which the children's grandparents would have presented which could have rebutted the
State's case. He does not allege or explain how their presence would have affected the
outcome of the proceedings. Thus, we conclude that the district court's failure to
appropriately notify the children's grandparents of the termination hearing was not
reversible error.").
For all these reasons, we decline to find the district court erred.
Denial of Father's Motion for Continuance
Father contends the district court abused its discretion by denying his motion for
continuance made on the day of the scheduled termination hearing. According to Father,
a continuance was necessary for him to obtain discovery regarding his prior criminal case
and his divorce case. As a result, Father argues that he was not allowed the opportunity to
present a full defense. Mother counters that Father presented no evidence supporting his
claim and his "lack of preparedness is not an appropriate reason to continue a
[termination hearing] when the very outcome of [the hearing] is critical for the minor's
[wellbeing]."
At the January 11, 2019 pretrial hearing, Mother's counsel stated that the district
court could take judicial notice of Father's prior criminal case and divorce proceedings in
Johnson County. She then added, "I am happy to do all the necessary paperwork to have
those files sent to this Court." A colloquy between the district court and counsel ensued
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regarding the court files that both counsels wanted to obtain. After the hearing, the
district court filed a journal entry ordering Mother's counsel to obtain copies of both the
criminal and divorce court files in Johnson County.
Three months later, at the pretrial conference held on April 12, 2019, Mother's
counsel informed the district court that she had provided certified copies of documents
filed in the divorce and criminal cases to Father's counsel and the GAL. After the hearing,
the district court filed a journal entry taking judicial notice of the certified copies
provided by Mother's counsel.
Three months after the pretrial conference, Judge Smith was assigned to the case.
At the termination hearing, Father objected to the proceedings and requested a
continuance because he was not given the complete criminal and divorce records.
Mother's counsel explained that she had previously provided certified copies of certain
file documents in the criminal and divorce cases to Father's counsel. As she had
previously explained to the court and counsel, however, these documents did not
constitute the entire criminal and divorce case files.
In addition to Mother, both the GAL and counsel for the maternal grandparents
argued against a continuance. Counsel for the maternal grandparents argued that if Father
desired additional documents from the other court case files he should have obtained
them previously.
The district court denied the motion for continuance, ruling that
"every party has their own responsibilities to obtain discovery, and that includes court
records. And in this case, it appears that [Mother's counsel] acquired whatever records
that she could have acquired, but a failure to acquire additional court records . . . does not
rest on [Mother's counsel's] shoulders. It rests on the [F]ather's shoulders."
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A district court's denial of a continuance is reviewed for abuse of discretion. In re
J.A.H., 285 Kan. 375, 384-85, 172 P.3d 1 (2007). A judicial action constitutes an abuse of
discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law;
or (3) it is based on an error of fact. Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d
515 (2018). The party asserting the district court abused its discretion bears the burden of
showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45 290 P.3d 562 (2012).
Father does not assert the district court's action was an error of fact or law; therefore, we
will consider whether the district court's action was arbitrary, fanciful, or unreasonable.
Father's primary complaint is that he only became aware on September 9, 2019,
that the complete records of the prior criminal and divorce cases were not obtained by
Mother's counsel. However, both judges assigned to this case—including the ordering
judge—found Mother's discovery to be sufficient. When discussing the files, the initial
presiding judge, Judge Richard A. Macias, stated that Mother's counsel "went to more
than reasonable efforts" to obtain the relevant files. Judge Macias did not order Mother's
counsel to obtain more records, nor did Father object to inclusion of only the relevant
records rather than the complete criminal and divorce files. Similarly, Judge Smith held
Mother's counsel tried to obtain records and any failure to obtain complete files was not
the fault of Mother's counsel.
Moreover, Father knew Mother's counsel did not obtain the complete files at the
pretrial conference in April 2019 because Mother's counsel identified what she did and
did not obtain at the pretrial conference when Father was present. Mother's counsel also
provided to Father's counsel the file documents she obtained. As a result, Father knew he
did not have copies of the complete files during the five months leading up to the
termination trial.
Father has also failed to show prejudice. He does not describe or identify the
materials which he claims were necessary for his defense. A review of the criminal case
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file records admitted in evidence reveals considerable information that is unfavorable to
Father's case. Father has not favored us with the particular documents that would have
been favorable to his defense. As noted earlier, at least one document filed in the divorce
case supports Mother's case for parental termination. Yet, Father has not shown there
were documents favorable to his legal position.
Father has failed to meet his burden of showing that the district court's denial of a
continuance was arbitrary, fanciful, or unreasonable. The district court found Mother's
counsel sufficiently complied with the discovery order and any need for additional
discovery was not the fault of Mother's counsel. A district court is to dispose of CINC
proceedings "without unnecessary delay." See K.S.A 2019 Supp. 38-2201(b)(4).
Moreover, considering the expedited nature of CINC proceedings, it is not arbitrary,
fanciful, or unreasonable for the district court to deny a continuance for additional
discovery when Father had five months to obtain other materials. We find no error.
Denial of Father's Request for New Counsel
In his pro se appellate brief, Father argues the district court abused its discretion
when it denied his request for new counsel during the termination trial.
Father requested appointed counsel on December 26, 2018. The motion was
granted, and Michelle Smith was appointed to represent Father. A few months later,
Father filed a motion for new counsel asserting that Smith was not staying in contact with
him or conducting a necessary investigation. Less than two months later, Father filed
another motion to replace Smith, citing similar grounds. This motion was granted by the
district court on May 30, 2019, and the district court appointed Gerard C. Scott to
represent Father.
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Shortly before trial, Scott filed multiple motions, including a motion for an
independent psychological evaluation of R.J., a motion requesting R.J.'s medical records,
a motion requesting Kansas Department for Children and Families (DCF) records, and a
motion for continuance of the termination hearing.
The motion for continuance stated four grounds in support. First, that since his
appointment, Scott was involved in a murder trial, had other matters to attend to and was
planning a vacation in July. Second, that Father was pursuing posttrial remedies to obtain
an earlier release from incarceration. Third, that a DCF investigation had been opened
and additional time was needed to discover the basis for the investigation. Fourth, that
counsel needed additional time to investigate the various claims and that it was in the best
interests of R.J. that Father's rights were not terminated without a more thorough
investigation.
The district court held a hearing on the motions on August 30, 2019. It granted
Father's motions requesting medical and DCF records but denied the request for a
psychological evaluation of R.J. The district court also denied Father's motion for a
continuance noting that the case was filed in 2018 and "the parties appear to be prepared
and ready to proceed to trial but for the motions we just heard."
On the day of the termination hearing, after counsel had waived opening
statements, Father interrupted the hearing to ask if he could request new counsel. The
district court overruled the request, and Mother began presentation of her case in chief.
After Mother rested her case, Scott asked the court to "be given an opportunity—[Father]
had made an oral motion to have me discharged as his lawyer, and I think he ought to be
given an opportunity just to make a record on whatever he feels his complaints are in that
regard." The district court agreed.
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Father referenced Scott's earlier motion for a continuance indicating the attorney
needed additional time to investigate the case. Father complained that Scott failed to
investigate Father's "strongest defense" which was "that my criminal case will be
reversed here one day, hopefully sooner than later." Father protested that Scott did not
prepare a trial brief which was going to highlight Father's on-going postconviction
litigation to reverse his two solicitation to commit murder in the first-degree convictions.
He also asserted that Scott did not want to review or investigate Moore's role as R.J.'s
GAL in the prior divorce proceedings in Johnson County.
The district court overruled Father's motion, noting that Father's convictions had
been upheld on appeal and, in this regard, he did not see that Scott had performed
inappropriately. The district court observed that Scott was "very effective in his cross-
examination of Ms. Meek." The district court also suggested that some of the issues that
Father wanted to raise in his recently prepared counter-petition comprised allegations
against Mother for which "we have absolutely nothing to indicate that there is any
support for those allegations." The district judge concluded that, "based on what I've seen
up to this point, I do not see anything that would indicate that Mr. Scott has done
anything but zealously represent you in this case."
Father's claim of error suffers from several infirmities. Supreme Court Rule
6.02(a)(5) (2020 Kan. S. Ct. R. 35) requires that an appellant's brief contain "[t]he
arguments and authorities relied on." (Emphasis added.) Father mentions two cases
neither of which are on-point precedent in support of his claim of error. More
importantly, Father has not cited the proper legal standard upon which an appellate court
should review an ineffective assistance of counsel claim in CINC cases or discussed the
application of that standard to the facts of this case. Failure to support a point with
pertinent authority is akin to failing to brief the issue. In re Adoption of T.M.M.H., 307
Kan. at 912. "[A]n argument that is not supported with pertinent authority is deemed
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waived and abandoned. [Citations omitted.]" Friedman v. Kansas State Bd. of Healing
Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).
Father's argument for ineffectiveness on appeal is at variance with his assertions
made in the district court. While Father has listed numerous claims of ineffectiveness in
his brief, as set forth earlier, he mentioned only four areas of concern in the district court.
Those four claims do not establish ineffectiveness. First, while Father maintains his
strongest defense was his expectation that his convictions will be reversed, as the district
court noted, those convictions were upheld on appeal and there is no assurance that any
post-conviction relief will result in Father's freedom in the near term. Father has failed to
show how anything Scott did or omitted to do could have changed this reality.
Second, Father has not shown that any testimony or materials by Moore would
have been beneficial to Father. On the contrary, as mentioned earlier, evidence was
admitted that Moore filed a pleading in Johnson County District Court seeking to
terminate Father's rights to visitation with R.J. in the divorce proceeding based on his
arrest for soliciting Mother's murder.
Third, Scott's routine request for a continuance due to the press of business and
vacation does not prove that he was necessarily unprepared or ineffective at the time of
the termination hearing. It is well settled that "[o]n appeal, error below is never presumed
and the burden is on the appellant to make it affirmatively appear." First National Bank
& Trust Co. v. Lygrisse, 231 Kan. 595, Syl. ¶ 8, 647 P.2d 1268 (1982). This, Father has
failed to do.
Finally,
"in order to prevail on a claim of ineffective assistance of counsel, the party alleging
ineffective assistance must establish that the performance of counsel was deficient, and
18
the party was prejudiced by the ineffective assistance. This means that there is a
reasonable probability a different result would have been achieved in the absence of the
deficient performance. See State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015);
Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014)." In re D.H., Jr., 54
Kan. App. 2d. 486, 498, 401 P.3d 163 (2017).
As discussed in the later section entitled, "Sufficiency of Evidence in Termination
of Father's Parental Rights," we have found substantial clear and convincing evidence to
support the district court's decision to order termination of Father's parental rights.
Assuming the ineffectiveness that Father asserts—which Father has not shown—we are
not persuaded there is a reasonable probability a different result would have been
achieved given the substance and quality of the evidence of Father's unfitness. We find
no error.
District Court's Errors in Making Findings.
Father contends the district court made inaccurate and insufficient findings
regarding its ruling that R.J. is a child in need of care. He also argues the district court
"created an erroneous conflict and ambiguous record" because the district court's oral
pronouncement of its ruling differed from the journal entry filed at the conclusion of the
case.
Preliminarily, once again, Father did not object to the impropriety of any of the
district court's oral or written findings in the district court. Instead, he is raising this
argument for the first time on appeal. See Wolfe Electric, 293 Kan. at 403. And, as
before, Father does not assert an exception to the general rule against raising issues for
the first time on appeal in compliance with Supreme Court Rule 6.02(a)(5). We will not
repeat our discussion of Kansas law regarding the importance of preserving issues for
appellate review which we addressed in the section pertaining to Father's claim of a due
19
process violation. Suffice it to say that because the issue was not preserved for appellate
review it is waived or abandoned.
In the interest of completeness, however, we make three observations. First,
regarding Father's complaint that the district court's oral and written findings were
inconsistent, our court has found "[i]n a civil action, a district court's journal entry of
judgment controls over a prior oral pronouncement from the bench." Steed v. McPherson
Area Solid Waste Utility, 43 Kan. App. 2d 75, 87, 221 P.3d 1157 (2010); see In re I.G.,
No. 122,009, 2020 WL 2296918, at *2 (Kan. App. 2020) (unpublished opinion) (applying
rule to termination proceedings where district court made oral findings different than
those in the journal entry). Assuming Father's claim of inconsistency is valid, the journal
entry controls.
Second, not only did Father not object to the oral findings or journal entry, Father's
counsel approved and signed the journal entry. When no objection is made to a district
court's findings of fact or conclusions of law based on inadequacy, an appellate court may
presume the district court found all facts necessary to support its judgment. State v.
Jones, 306 Kan. 948, 959, 398 P.3d 856 (2017).
Third, we have reviewed the district court's oral and written factual findings and
find them sufficient to support the court's legal conclusions. For all these reasons, we
decline to find the district court erred.
SUFFICIENCY OF EVIDENCE IN TERMINATION OF FATHER'S PARENTAL RIGHTS
Father contends the district court abused its discretion in terminating his parental
rights because there was insufficient evidence to support the judgment. Mother counters
that there was clear and convincing evidence in support of the district court's decision.
20
We begin the analysis with a brief summary of our standards of review and Kansas
law relating to termination of parental rights. 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). Given the inherent importance and unique character of that
relationship, the parental right has been deemed fundamental. Santosky, 455 U.S. at 753.
Accordingly, the State may extinguish the legal bonds between parent and child only
upon clear and convincing proof of parental unfitness. K.S.A. 2019 Supp. 38-2269(a); In
re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).
As provided in K.S.A. 2019 Supp. 38-2269(a), the State must prove the parent is
unfit "by reason of conduct or condition" making the parent "unable to care properly for a
child" and that the circumstances are "unlikely to change in the foreseeable future." The
statute contains a nonexclusive list of nine conditions that singularly or in combination
constitute unfitness. K.S.A. 2019 Supp. 38-2269(b). If a parent no longer has physical
custody of a child, the statute lists four other factors to be considered K.S.A. 2019 Supp.
38-2269(c).
In reviewing a district court's determination of unfitness, an appellate court must
be convinced, based on the full evidentiary record considered in a light favoring the State
as the prevailing party, that a rational fact-finder could have found that decision "highly
probable, i.e., [supported] by clear and convincing evidence." In re B.D.-Y., 286 Kan. at
705. The appellate court may not weigh conflicting evidence, pass on the credibility of
witnesses, or otherwise independently decide disputed questions of fact. 286 Kan. at 705.
In considering the foreseeable future, courts should use "child time" as the proper
measure. The KCCC, as set forth in K.S.A. 2019 Supp. 38-2201 et seq., recognizes,
children experience the passage of time in a way that makes a month or a year seem
considerably longer than it would for an adult and that different perception typically
21
points toward a prompt, permanent disposition. K.S.A. 2019 Supp. 38-2201(b)(4); In re
M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); 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").
The district court found Father was unfit to parent R.J. under six separate
subsections of K.S.A. 2019 Supp. 38-2269. On appeal, Father analyzes some factors
separately and others in groups. As a result, we will analyze the evidence underlying the
factors in a similar manner.
K.S.A. 2019 Supp. 38-2269(b)(4)
Under K.S.A. 2019 Supp. 38-2269(b)(4), a district court may terminate parental
rights when clear and convincing evidence shows "physical, mental or emotional" abuse
or neglect or sexual abuse of a child. K.S.A. 2019 Supp. 38-2202(y) defines "'[p]hysical,
mental or emotional abuse'" as "the infliction of physical, mental or emotional harm or
the causing of a deterioration of a child and may include, but shall not be limited to,
maltreatment or exploiting a child to the extent that the child's health or emotional well-
being is endangered."
At the termination hearing, the district court found, "Simply stated, [Father's] act
of soliciting someone to murder the mother has inflicted severe psychological abuse upon
the child." But on appeal, Father contends there was no "direct connection with [F]ather's
'convictions and incarceration' to any past or present mental or emotional abuse." In
support, Father argues the definition of "'[p]hysical, mental, or emotional abuse' . . .
requires a two-prong analysis: infliction of physical, mental or emotional abuse and the
deterioration of the child." See K.S.A. 2019 Supp. 38-2202(y) This interpretation of the
statute is mistaken.
22
The plain language of K.S.A. 2019 Supp. 38-2202(y) reads that such abuse is "the
infliction of physical, mental, or emotional of harm or the causing of a deterioration of a
child." (Emphasis added.) As a result, Mother only needed to present testimony of either
the infliction of harm or the deterioration of R.J. to meet the definition of "'[p]hysical,
mental or emotional abuse.'" See K.S.A. 2019 Supp. 38-2202(y). Still, the evidence in
this case supported both types of abuse.
At the trial, Mother presented the testimony of Meek, a licensed therapist who had
been counseling R.J. since July 2018. Meek testified that she was currently licensed in
Kansas as a clinical marriage and family therapist and as a supervisor of play therapy.
Meek graduated from Friends University with a bachelor's degree in psychology and
subsequently obtained a graduate degree in marriage and family therapy from the
university. She testified that she worked for DCCCA (Douglas County Citizens
Committee on Alcoholism, Inc.) for five years as a family therapist before employment
as a therapist with First Step Counseling from 2001 until 2008. According to Meek, since
2008 she has been in private practice. Meek estimated that 65% of her caseload involved
counseling children and adolescents. Over Father's objection, Meek was qualified as an
expert witness.
Meek testified that since July 12, 2018, she had conducted 13 counseling sessions
with R.J. She testified at length regarding the mental and emotional harm R.J. has
suffered since Father committed the acts that led to his convictions. Meek testified R.J.
presented issues of "significant anxiety, difficulty with self-regulation, calming himself,
and distrust of others" when he started counseling with her. Meek testified R.J. could
become "triggered or anxious" and when he did, "[h]e couldn't manage stress well or
cope well. [His] fight-or-flight responses were just very significant."
Meek explained that R.J. "just does not trust" and "has a hard time with peer
relationships [and] [h]e is looking for the next bad thing to happen." Meek testified that
23
R.J. is "very smart, very insightful, and educated" but socially, R.J. is "very isolated, you
know, kind of held back."
Specifically, Meek testified regarding R.J.'s feelings about Father. Meek stated
R.J. "becomes significantly more anxious, more fearful" when discussing or describing
his father. "He just has a fear of him coming back and what that might look like or . . . I
think it's a fear of, you know, will he—you know, will his mother be hurt or will his
mother be safe, will he be safe, what will that look like, and there's just a significant
anxiety around that." Moreover, Meek testified that R.J.
"is quite adamant on just not having a desire to have any kind of contact at all [with
Father]. He's quite clear about that. And he gets intense when he has those discussions.
It's very difficult for him to talk about those things. He is very upset, and he just becomes
so fearful."
Meek opined that the trauma Mother and R.J. suffered together created a
"traumatic attachment" that makes R.J. more anxious. R.J. has "difficulty with trusting
others because it was a perpetrator within his foundations versus maybe an outside
perpetrator makes it more difficult for him." Meek opined that the actions of Father were
"psychologically abusive" to R.J. because he has reported remembering "inappropriate
domestic violence-type situations" from when he was very young and he remains anxious
and fearful. Of note, Meek testified that R.J. refers to Father as "'the monster.'"
Meek further testified that R.J. is "distrustful" and "does not feel safe" with men.
This was also evidenced by Meek's notes from a counseling session with R.J., which
were admitted in evidence. Meek opined that these fears are signs of "psychological
abuse" as a result of the "significant amount of trauma just from what [R.J.] has been
through." Moreover, Meek testified that R.J. is "aware" Father is imprisoned and knows
Father "[c]an't get to him," and "[e]ven with that knowledge, he is terrified of resuming a
24
relationship with his father." Meek testified R.J. needs Father's parental rights terminated
to protect R.J. from having to resume a relationship with Father, which she described as
the "worst thing that could happen for [R.J.]."
Quite simply, the record shows Father inflicted mental, or emotional harm upon
R.J. due to domestic violence incidents when R.J. was younger and culminating with
Father's attempts to murder his ex-wife—R.J.'s mother. Meek's expert testimony shows
Father's behavior and criminal conduct have caused R.J. severe and on-going
psychological harm. Moreover, the evidence was clear and convincing that the harms to
R.J. not only were longstanding, but they would continue into the foreseeable future. In
summary, clear and convincing evidence supported the district court's decision to
terminate Father's parental rights under K.S.A. 2019 Supp. 38-2269(b)(4).
K.S.A. 2019 Supp. 38-2269(b)(5), and (c)(2)
Under K.S.A. 2019 Supp. 38-2269(b)(5), a district court may terminate parental
rights when there exists clear and convincing evidence of a "conviction of a felony and
imprisonment." And under K.S.A. 2019 Supp. 38-2269(c)(2), a district court may
terminate parental rights "when a child is not in the physical custody of a parent" and
there was a "failure to maintain regular visitation, contact or communication with the
child or the custodian of the child."
On appeal, Father candidly concedes, "that the [indisputable] single fact of his
felony convictions and his current incarceration . . . is sufficient to find [he] is present[ly]
unfit and without a sentence reduction the unfitness is unlikely to change in the
foreseeable future." Still, Father asserts that under Kansas caselaw, "incarceration,
standing alone, is not sufficient to terminate a parent's parental rights." Father has
mistakenly conflated Kansas caselaw.
25
Regarding K.S.A. 2019 Supp. 38-2269(b)(5), the uncontroverted evidence shows
that Father was convicted of two felony counts of solicitation to commit murder in the
first degree of R.J.'s mother. He was sentenced to a controlling term of 132 months in
prison. Under these circumstances, the Kansas statute and caselaw is clear:
"In fact, under Kansas law, simply committing a felony and being imprisoned can constitute the
sole basis for a finding of unfitness, regardless of the circumstances of the crime. K.S.A. 2013
Supp. 38-2269(b)(5), (f); see In re M.D.S., 16 Kan. App. 2d 505, Syl. ¶ 4, 825 P.2d 1155 (1992).
The termination-of-parental-rights statute refers only to felonies generally and doesn't require the
crime to be related to parenting to terminate a parent's rights under this basis. K.S.A.2013 Supp.
38-2269(b)(5), (f)." In re M.H., 50 Kan. App. 2d 1162, 1172-73, 337 P.3d 711 (2014).
Based on K.S.A. 2019 Supp. 38-2269(b)(5) and given Father's lengthy prison
sentence for commission of two serious felony offenses, the district court did not err in
finding clear and convincing evidence that Father was unfit to parent R.J. now and in the
foreseeable future.
Under K.S.A. 2019 Supp. 38-2269(c)(2), and with regard to incarceration
generally—as distinguished from a parent who is incarcerated for a felony conviction—
Father attributes his failure to maintain regular visitation, contact or communication with
R.J. to the district judge in his divorce case who issued an order suspending and
prohibiting any contact between himself and his child.
In discussing the issue of an incarcerated parent generally, our court has stated:
"[E]ven though Father is correct that incarceration may be considered a mitigating factor,
it's up to the district court how to consider a person's incarceration within the facts of the
case. In re M.D.S., 16 Kan. App. 2d at 509-11, 825 P.2d 1155. In some cases,
incarceration might be cause to excuse a parent's failure to complete certain tasks toward
reuniting with a child. In other cases, incarceration may be considered a significant
negative factor, such as where it has impeded the development of a relationship between
26
the parent and the child, where the parent has been incarcerated for the majority of the
child's life and the child spent the time in the State's custody, and where the incarceration
would cause further delay in the proceedings that isn't in the child's best interests. 16 Kan.
App. 2d at 509-11, 825 P.2d 1155." In re M.H., 50 Kan. App. 2d at 1172.
Here, the district court appropriately considered Father's incarceration as a
negative factor. Father has not been in contact with R.J. since he was incarcerated in
2012—9 out of the 14 years R.J. has been alive. As mentioned earlier, Father's
incarceration has adversely impacted his relationship with R.J. and his absence has
caused R.J. considerable emotional harm. Meek testified that Father's absence "created
this difficulty of who does [R.J.] trust by not having that parental figure around." Meek
testified this absence creates uncertainty for R.J., which leads to "more anxiety." And
when asked what impact a parent's extended absence would have on a child, Meek
opined:
"For [R.J.], he knows why his dad is not with him. For him, you know, there's
this—more of a fear based off, you know, not wanting his dad to be with him, but then
also not, you know, feeling protected and feeling vulnerable and feeling like a person
[who] is supposed to protect you also is one [who] violated that kind of safety."
It is understatement that Father knew his efforts to arrange the murder of R.J.'s
mother, if detected, could result in significant imprisonment. As a result, Father's lengthy
incarceration and inability to parent R.J. was foreseeable given his criminal behavior. His
illegal conduct directly precipitated the lengthy incarceration which resulted in adverse
psychological and emotional damage to R.J. Regardless of the no contact order, Father's
criminal conduct resulted in an extended period of incarceration which, by its duration
and given R.J.'s age, precludes any purposeful regular visitation, contacts, or
communication with R.J.
27
We are convinced that clear and convincing evidence supported the district court's
determination that Father was unfit now and in the foreseeable future to parent R.J. under
both K.S.A. 2019 Supp. 38-2269(b)(5) and (c)(2).
K.S.A. 2019 Supp. 38-2269(b)(7) and (c)(3)
Under K.S.A. 2019 Supp. 38-2269(b)(7), a district court may terminate parental
rights when clear and convincing evidence establishes a "failure of reasonable efforts
made by appropriate public or private agencies to rehabilitate the family." And under
K.S.A. 2019 Supp. 38-2269(c)(3) a district court may terminate parental rights if the
child is not in the physical custody of a parent and when clear and convincing evidence of
a "failure to carry out a reasonable plan approved by the court directed toward the
integration of the child into a parental home."
Father contends the record contains "no evidence to support these findings." We
agree. Under the unique circumstances of this case, there were no "reasonable efforts"
made by any public or private agency to rehabilitate R.J. and Father's relationship. K.S.A.
2019 Supp. 38-2269(b)(7). The district court also never approved a plan designed to
reintegrate R.J. into Father's home. K.S.A. 2019 Supp. 38-2269(c)(3). Clear and
convincing evidence does not support the district court's findings that Father is unfit to
parent R.J. under K.S.A. 2019 Supp. 38-2269(b)(7) and (c)(3).
K.S.A. 2019 Supp. 38-2269(b)(8)
Under K.S.A. 2019 Supp. 38-2269(b)(8), a district court may terminate parental
rights when there is clear and convincing evidence of a "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." Father contends that "[w]ithout court orders and permanency plans [F]ather did
not have any opportunity to make any effort 'to adjust his circumstances.'"
28
Similar to the analysis of K.S.A. 2019 Supp. 38-2269(b)(7) and (c) (3), we are
persuaded that, in part, due to the nature of Father's convictions and institutional
constraints imposed by his lengthy incarceration, there was insufficient clear and
convincing evidence that this factor warranted a finding of unfitness.
Summary of Relevant Factors
We have concluded that three statutory factors justify the district court's finding
that Father is presently and in the foreseeable future unfit to parent R.J. Of course, any
one of the factors in K.S.A. 2019 Supp. 38-2269(b) or (c) may, but does not necessarily,
establish grounds for termination of parental rights. See K.S.A. 2019 Supp. 38-2269(f).
Two of the factors merit special mention due to their importance. As to K.S.A.
2019 Supp. 38-2269(b)(4), Meek's expert testimony established that Father's solicitations
to commit first-degree murder of R.J.'s mother resulted in the son sustaining severe
psychological and emotional damage now and in the foreseeable future. Regarding
K.S.A. 2019 Supp. 38-2269(b)(5), the undisputed evidence proved that Father was
incarcerated due to his commission of the two felonies of solicitation to commit murder
in the first degree. Considered individually or collectively, these two factors were
especially important in validating the district court's legal conclusion that Father was
unfit to parent R.J. now or in the foreseeable future.
THE BEST INTERESTS OF R.J.
Father contends the district court abused its discretion in finding that the
termination of Father's parental rights is in the best interests of R.J. According to Father,
it was not in R.J.'s best interests "to 'legally bastardize' his son." See Bariuan v. Bariuan,
186 Kan. 605, 609, 352 P.2d 29 (1960). Mother contends overwhelming evidence
29
supports the district court's finding that it was in R.J.'s best interests to terminate Father's
parental rights.
Upon a finding of parental unfitness, the district court must determine whether
termination of parental rights is "in the best interests of the child." K.S.A. 2019 Supp. 38-
2269(g)(1). As directed by the language of K.S.A. 2019 Supp. 38-2269(g)(1), the district
court gives "primary consideration to the physical, mental and emotional health of the
child." The district court makes that determination based on a preponderance of the
evidence. See In re R.S., 50 Kan. App. 2d at 1115-16. The assessment of the child's best
interests is entrusted to the district court acting within its sound judicial discretion. 50
Kan. App. 2d at 1115-16.
As an appellate court, we review the decision regarding a child's best interests for
abuse of discretion. A district court exceeds that broad latitude if it rules in a way no
reasonable judicial officer would under the circumstances, if it ignores controlling facts
or relies on unproven factual representations, or if it acts outside the legal framework
appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co.,
296 Kan. 906, 935, 296 P.3d 1106 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256
P.3d 801 (2011). Of note, Father does not assert the district court made an error of fact or
law so we will consider if the district court ruled in a way that no reasonable judicial
officer would, given the circumstances of this case.
Meek testified that termination of Father's parental rights would be in R.J.'s best
interests. In addition to Meek's testimony about R.J.'s struggles with anxiety and fear
towards Father, Meek testified at length as to R.J.'s need for stability:
"[R.J.] desires to feel in control of his surroundings, and I think there's a fear of in the
future will he feel like a sense of control, you know, or what will that—it's kind of like an
uncertainty. And so I think he's fearful regarding that, what does the future look like."
30
As evidenced by Meek's clinical notes, R.J. "'feels that once things are more
finalized with Father, he will feel more secure. . . .'" Meek clarified that R.J.'s vision of
"finalized" is not having contact with Father and R.J. believes he will improve "once
Father is completely out of his life legally and in every other possibility." "[H]e needs
that sort of finality of no possibility of Father reentering his life to make improvement."
Meek added that "[R.J.] is worried that somehow—like what will that mean? Will my
father, you know, come back? Will I have to do visits? I think there's a lot of uncertainty
for [R.J.] in what that looks like."
Together with R.J.'s need for stability, Meek testified that for R.J. to have contact
with Father, "he would probably have to be medicated." She added:
"I believe that he would have such a hard time with dysregulation if he thought that he
was going to have any kind of contact with [Father] at all. [R.J.] has a hard enough time
just managing himself, but if he thought that he was going to have like a visit with his
father—I mean, I understand that there [are] typically goals that you work toward with
reintegration, and I support families working together, but [R.J.] has such a difficult time
with anxiety and past trauma and the neurological struggles that he has, I don't know that
[R.J.] has the capacity to be able to do so."
Meek clarified that she would need "at least two more years to work with [R.J.] to
be able to even assess [him] before even talking about visitation." And when considering
whether it would be in R.J.'s best interests to have contact with Father, Meek opined:
"I have worked a lot of reintegration and it really depends on the child and their
flexibility emotionally. [R.J.] truly struggles. [R.J.]—he struggles so much with anxiety
and self-regulation. He struggles with flexibility, with coping. He has so many things that
he has to work on individually. So to do visits, we would be—whose needs are we
serving? Are we serving [Father's] needs? Are we serving [R.J.'s] needs at this point?"
31
In giving primary consideration to the physical, mental, and emotional health of
R.J., Father has not shown that no reasonable judicial officer would have found
termination to be in R.J.'s best interests. As a result, the district court did not abuse its
discretion in finding it was in R.J.'s best interests to terminate Father's parental rights.
Finally, in his pro se appellate brief, Father claims that the district court's
cumulative errors require reversal of the court's rulings and judgment. We disagree.
Whether Father's claims of error are considered singularly or cumulatively we find no
basis to reverse the district court's rulings or judgment.
Affirmed.
32