In re A.L.H.

1

NOT DESIGNATED FOR PUBLICATION

Nos. 113,589
113,590


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE INTERESTS OF
A.L.H., d/o/b XX/XX/2007, a Male,
And
I.E.H. IV, d/o/b XX/XX/2004, a Male.

MEMORANDUM OPINION

Appeal from Washington District Court; WILLIAM B. ELLIOTT, judge. Opinion filed December
11, 2015. Affirmed.

Meghan K. Voracek, of Seneca, for appellant natural mother.

Steve Kraushaar, of Marysville, for appellant natural father.

Richard E. James, special prosecutor, for appellee, and Kelly Navinsky-Wenzel, as guardian ad
litem.

Before GREEN, P.J., GARDNER, J., and JOHNSON, S.J.

Per Curiam: J.H. (hereinafter mother) and I.E.H. III (hereinafter father) appeal
the termination of their parental rights over I.H. IV, born in 2004, and A.L.H., born in
2007. On appeal, parents argue that the trial court erred in four ways: (1) mother argues
that the trial judge erred by failing to recuse himself upon her motion; (2) mother argues
that the trial court erred by denying her motion to continue the termination hearing; (3)
father argues that the trial court erred by failing to address parents' motions for the
appointment of a permanent custodian; and (4) both parents argue that the trial court
erred in terminating their parental rights. Nevertheless, all of parents' arguments on
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appeal lack merit. As a result, we affirm the trial court's termination of parents' parental
rights.

On March 4, 2014, the State petitioned the trial court to remove I.H. IV and
A.L.H. from their parents' home. According to the State's petition, mother and father had
recently been arrested on numerous drug charges, including distribution of marijuana and
methamphetamine. Mother and father had been selling drugs from the family home. The
petition further alleged that I.H.IV and A.L.H. were (1) without adequate parental care,
control, or subsistence; (2) without care or control necessary for their mental or emotional
health; (3) physically, mentally, or emotionally abused; and (4) at risk to sustain harm if
not immediately removed from their parents' home.

A magistrate judge appointed a guardian ad litem (GAL) to represent I.H. IV and
A.L.H. Then, the magistrate judge held a temporary custody hearing. Mother and father,
who were out of jail on bond, appeared. The magistrate judge granted temporary custody
to the State. Following this temporary custody hearing, the magistrate judge recused
himself from the case due to a conflict of interest. Our Supreme Court then appointed
Senior Judge William Elliott to preside over I.H. IV's and A.L.H.'s children in need of
care (CINC) cases and parents' pending criminal cases.

Mother appealed the magistrate judge's order awarding temporary custody to the
State. On March 28, 2014, the trial court held a temporary custody hearing de novo. The
trial court ultimately found probable cause to believe the allegations within the State's
petition and granted temporary custody to the State.

The trial court held an adjudication hearing on April 11, 2014. During this hearing,
both mother and father submitted a signed statement of no contest to the State's petition
that I.H. IV and A.L.H. were CINC. The trial court accepted both parents' no contest
statements. Then, the trial court ordered that the children remain in State custody. The
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trial court also adopted the proposed permanency plan from Saint Francis Community
Services (SFCS), an organization that DCF contracted with to provide family services.

SFCS recommended a permanency plan goal of reintegration. To reach
reintegration, SFCS implemented case plan goals and objectives for the parents to follow.
Under the case plan, mother and father were supposed to: (1) stay sober, stable, and safe
parents in their children's lives; (2) have no negative contact with law enforcement; (3)
maintain a clean and orderly home so the children could visit and later reintegrate; (4)
maintain employment and provide verification of that employment; (5) complete a mental
health intake and follow all recommendations concerning healthy communication skills
with each other, drug and alcohol concerns, and I.H. IV's anxiety; (6) submit to a drug
and alcohol evaluation; (7) keep SFCS updated about pending criminal cases; and (8)
complete all parenting classes. Additionally, in SFCS's case plan notes, SFCS reported
that parents were scrapping and cleaning houses for income and that parents had bought a
new house.

Before the next review hearing, on July 29, 2014, the police obtained a search
warrant to search for drugs in parents' new house. During the search of parents' house,
police found marijuana, methamphetamine, and drug paraphernalia. As a result of this
search, mother and father were arrested. It seems mother and father were unable to bond
out of jail after this arrest.

In August 2014, mother was convicted of one count of possession with intent to
distribute marijuana. In September 2014, mother was additionally convicted of one count
of felony possession of drug paraphernalia with intent to manufacture or grow. For both
counts, mother received a total sentence of 32 months' imprisonment. In September 2014,
father was convicted of one count of possession with intent to distribute marijuana, one
count of possession with intent to distribute methamphetamine, and two counts of
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possession of methamphetamine. For all four counts, father received a total sentence of
101 months' imprisonment.

In October 2014, both parents moved to appoint a permanent custodian. Because
of their imprisonment, parents requested that the trial court appoint D.L.W., I.H. IV and
A.L.H.'s maternal grandmother, as the children's permanent custodian. It seems the trial
court never addressed this motion.

On November 3, 2014, the trial court held a review hearing. At this hearing, the
trial court found that reintegration of I.H. IV and A.L.H. may not be a viable option given
that mother and father were incarcerated. Another review hearing was held on December
9, 2014. At this hearing, SFCS submitted a report that updated the trial court on parents'
progress. SFCS noted that parents had failed to comply with several of their case plan
goals. SFCS further recommended that the trial court find that reintegration of I.H. IV
and A.L.H. with parents was no longer a viable goal. The trial court found that parents'
progress was inadequate and that reintegration was no longer a viable goal. Following
this order, the State moved to terminate parents' parental rights because both were unfit
by reason of conduct or condition and both were unlikely to change in the foreseeable
future. The trial court scheduled the termination hearing for January 23, 2015.

Before the termination hearing, mother filed three motions. First, on January 16,
2015, mother moved for a continuance because she wanted SFCS to investigate whether
I.H. IV and A.L.H. could be placed in the custody of their paternal aunt, T.M, who lived
in Colorado. Mother wanted SFCS to pursue an Interstate Compact on the Placement of
Children (ICPC) with T.M., but alleged that SFCS was not making efforts to complete an
ICPC. Next, on January 19, 2015, mother moved to disqualify the trial judge as the
presiding judge. Mother alleged that the trial judge was biased against her because he
also presided over her criminal cases. The trial court issued an order denying both
motions. Following the denial of this motion, on January 21, 2015, mother filed a pro se
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motion for new attorney in which she alleged that her attorney did not comply with some
of her requests.

At the termination of parental rights hearing on January 23, 2015, the trial judge
opened by stating that there was no reason for him to recuse himself because he had no
bias or prejudice against mother. The trial judge then noted that the reason he was
assigned to I.H. IV's and A.L.H.'s CINC cases and to parents' criminal cases was because
the other judges in the judicial district had conflicts of interest.

Next, the trial court addressed mother's pro se motion for new attorney. The trial
court denied this motion because he believed mother was attempting to delay the
termination hearing by any means possible given the timing of her continuance motion,
recusal motion, and now new attorney motion. The trial court stated that mother's motion
was "not in good faith" or in the best interest of the children. After the denial of her new
attorney motion, mother decided to continue with her current attorney instead of
proceeding pro se.

Following this exchange, the termination hearing proceeded. The State, I.H. IV
and A.L.H.'s GAL, mother and mother's attorney, and father and father's attorney all
appeared at the termination hearing. The State presented testimony from the following:
Brandi Lewis, the assigned DCF social worker in this case; Undersheriff Kyle
Applegarth, who investigated parents' criminal cases; Shane Stadtler, the counselor who
worked with mother and father; Carly Bloomfield, the a counselor who worked with I.H.
IV and A.L.H; Tom Anderson, the family support worker with SFCS who monitored
visits between mother, father, I.H. IV, and A.L.H.; and Rascheal Nutsch, the assigned
SFCS social worker and case manager in this case.

Lewis testified about DCF's contact with the family since 2004. According to
Lewis, in 2004, DCF was notified when mother left D.L., mother's eldest child with a
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different father, unattended. In 2005, DCF received a phone call from mother's probation
officer who was concerned that mother was not correctly using skills that she learned at
parenting classes. In 2006, DCF was contacted over concerns that D.L. was neglected
after he received second-degree burns from a mishap in a kitchen. In 2007, DCF was
contacted after D.L. broke car windows. In 2011, DCF was contacted after D.L.
threatened to bring a gun to school and shoot his peers. In January 2014, DCF was
contacted after there were allegations parents physically abused A.L.H. The last time
DCF was contacted was when parents were arrested in February 2014.

Lewis explained that all but one of these incidents were unsubstantiated. Lewis
also testified about two incidences DCF learned about while investigating the family.
First, Lewis testified that during an interview, D.L., I.H. IV, and A.L.H. told a social
worker that father pointed a gun at mother's head. The children were afraid and called the
police, but when police arrived, the children denied anything had happened. Lewis
explained that even though mother admitted that father pointed a "pellet gun" at her head,
this account was unsubstantiated because DCF never "observed the alleged gun." Second,
Lewis testified that A.L.H. had told her that his father asked him to touch his mother's
vagina. According to Lewis, A.L.H. stated that he told his father "no," and his father
responded by laughing.

Undersheriff Applegarth testified about obtaining and executing the search
warrants on parents' house in February 2014 and parents' new house in July 2014.
Applegarth explained that during both searches, the police found and seized marijuana,
methamphetamine, and several items of drug paraphernalia. Applegarth also explained
that during both searches, the drugs and drug paraphernalia were located in parents'
bedroom, which was accessible to the children.

Stadtler testified that he had conducted only a few counseling sessions before
mother and father stopped attending. Stadtler testified that mother and father told him
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they wanted a new counselor. Stadtler explained that neither mother nor father were
interested in programs he suggested like narcotics anonymous and were very
argumentative.

Bloomfield testified that based on her interactions with I.H. IV and A.L.H during
counseling, the children were abnormally aggressive. Bloomfield testified that based on
reports from DCF and statements made by the children in counseling, she believed this
abnormal aggression stemmed from the children witnessing "numerous accounts of
domestic violence." Bloomfield explained that all three children expressed concerns
about father getting mad and beating mother up. Bloomfield testified that "[a]ll three
[have] expressed . . . that they thought somebody was going to die." Bloomfield further
testified that all three children told her that they have been whipped with a belt as
punishment.

Regarding sexual abuse, Bloomfield stated that A.L.H. told her he has watched his
parents having sex. A.L.H also told Bloomfield about his father asking him to touch his
mother's vagina. Bloomfield testified that I.H. IV told her that he had seen his mother
engaging in sexual acts with men who were not his father. Bloomfield believed that I.H.
IV and A.L.H were sexually advanced for their ages because they have been exposed to
inappropriate sexual behavior.

Bloomfield also testified that she believed I.H. IV and A.L.H. had made progress
since being removed from their parents' custody. According to Bloomfield, both I.H. IV
and A.L.H. had improved in school. Bloomfield explained that I.H. IV and A.L.H. were
aware that parents were selling drugs from the family home. Bloomfield testified that I.H.
IV told her that he was relieved that his parents were arrested because he no longer had to
worry about them getting arrested all the time and because his father could no longer hurt
his mother. Bloomfield also testified that the children were significantly less aggressive.

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Anderson testified that while monitoring visitations between the parents, I.H. IV,
and A.L.H., he witnessed very aggressive behaviors. Anderson testified that parents
allowed the children to play very violent video games. Moreover, when A.L.H. was
kicking farm animals, father took no actions to stop A.L.H.

Nutsch testified that father had uploaded concerning videos to YouTube. In one
video, father blew out a motorcycle tire by rigging the motorcycle to a tree and spinning
its tires. Nutsch testified that in the video, A.L.H. was walking around the back of the
motorcycle as its wheels spun. In another video, Nutsch explained that father "tased" a
man by rigging a Taser to an office chair, while I.H. IV and A.L.H. laughed. Nutsch
testified that when she asked I.H. IV about this video, I.H. IV told her that father had
"tased" him in the chair before too.

Concerning parents' case plan, Nutsch testified that out of the 8 case plan goals
SFCS implemented, parents only complied with keeping SFCS informed about their
pending criminal cases. In explaining how parents failed to comply with the other case
plan tasks, Nutsch revealed that father had been cheating on his drug urinalysis tests by
placing mother's clean urine in a penis prosthetic. Nutsch further testified that mother
admitted to supplying father with clean urine. When asked if she believed parents ever
adjusted their circumstances to reach the goal of reintegration, Nutsch responded, "I think
they adjusted their circumstances so we couldn't catch them working around the system."

Nutsch then testified that SFCS recommended termination. Nutsch provided the
trial court with details of parents' felony convictions and the length of parents' prison
sentences as additional support for the recommendation. Nutsch explained that the
agency took reasonable efforts to reintegrate the children with parents, but parents failed
to comply with their case plan goals for reintegration. Furthermore, Nutsch testified that
I.H. IV and A.L.H. have improved greatly since being removed from their parents.

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After Nutsch's testimony, the State rested. I.H. IV and A.L.H.'s GAL and father
did not present any evidence. Then, Mother testified on her own behalf. Mother testified
that SFCS was not making all possible efforts to reintegrate her children. Mother stated
that she repeatedly called SFCS, but they ignored her phone calls. Mother stated that she
was meeting her case plan goals. Mother stated that the reason she did not complete
counseling with Stadtler was because Stadtler was telling DCF and SFCS things she had
said in counseling without her permission. Mother also testified that she was working
very hard to turn her life around and had entered several counseling and education
programs while in prison.

The trial court ultimately found that there was clear and convincing evidence that
mother and father were unfit by reason of conduct or condition which rendered both
unable to care for I.H. IV and A.L.H. and this conduct or condition was unlikely to
change in the foreseeable future. Additionally, the trial court found that termination of
parents' parental rights was in the best interest of I.H. IV and A.L.H. Accordingly, the
trial court terminated parents' parental rights.

Both mother and father timely appealed.

Should the Trial Judge Have Recused Himself?

On appeal, mother asserts that the trial judge had a personal bias against her
because the trial judge presided over parents' criminal cases in addition to presiding over
I.H. IV's and A.L.H.'s CINC cases. Mother contends that the trial judge could not have
been impartial during the termination hearing because he knew facts about her criminal
case. As proof of the trial judge's bias, mother points out that the trial judge referenced
her criminal cases while denying her motion for a new attorney. Nevertheless, mother's
assertions are unfounded.

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Standard of Review and Applicable Law

Under Kansas law, there are three ways for litigants to seek recusal of a trial
judge: the Kansas Code of Judicial Conduct, the recusal statute K.S.A. 20-311d(c), and
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
See State v. Hurd, 298 Kan. 555, 568, 316 P.3d 696 (2013). In this case, mother relies on
the Kansas Code of Judicial Conduct, Supreme Court Rule 601B, Canon 2, Rule 2.11
(2015 Kan. Ct. R. Annot. 761), which states:

"(A) A judge shall disqualify himself or herself in any proceeding in which the
judge's impartiality might reasonably be questioned, including but not limited to the
following circumstances:
"(1) The judge has a personal bias or prejudice concerning a party or a party's
lawyer, or personal knowledge of facts that are in dispute in the proceeding."

Appellate courts have unlimited review over allegations of judicial misconduct.
State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010). To successfully argue that a
judge should have disqualified himself or herself on appeal, an appellant must show: (1)
the judge had a duty to recuse himself under the Kansas Code of Judicial Conduct, and
(2) the judge's actual bias or prejudice warrants reversal. See In re Lucas, 269 Kan. 785,
794, 7 P.3d 1186, 1192 (2000) (citing State v. Logan, 236 Kan. 79, 86, 689 P.2d 778
[1984]); see also State v. Schaeffer, 295 Kan. 872, 876, 286 P.3d 889 (2012). An
appellate court should find that "[d]isqualification of a judge is appropriate when the
circumstances and facts of the case 'create reasonable doubt concerning the judge's
impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the
litigant filing the motion, but rather in the mind of a reasonable person with knowledge of
all the circumstances.'" Schaeffer, 295 Kan. at 875, (quoting Logan, 236 Kan. at 86).

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Did Mother Prove That Trial Judge was Biased?

Although mother asserts that the trial judge was not impartial because he presided
over parents' criminal cases, the record on appeal does not support this assertion. In her
brief, mother first argues "that because the judge knew of the details of the criminal cases
and sentences [the judge held] a certain bias against [her and father] and would not be
impartial in the termination their parental rights." By making this argument, mother
essentially asserts that any trial judge who presides over a parent's criminal case cannot
preside over parent's termination of parental rights hearing because the trial judge will
always be biased against parent. Yet, our Supreme Court evidently disagrees with this
assertion. Again, our Supreme Court assigned Senior Judge Elliott to preside over I.H.
IV's and A.L.H.'s CINC cases and parents' respective criminal cases.

Mother also fails to recognize that any judge who presided over I.H. IV's and
A.L.H.'s CINC cases would have learned about parents' criminal cases. As previously
detailed, the facts of parents' criminal cases were intertwined with the children's CINC
cases. Children were removed from their parents' custody after police discovered that
parents were selling drugs from the family home. SFCS requested that the trial court
make a finding that reintegration was no longer a viable option after parents were
convicted and sentenced to prison. Moreover, Undersheriff Applegarth and Nutsch
testified about parents' criminal cases at the termination of parental rights hearing. Thus,
even if a different trial judge had presided over the parents' criminal cases, the trial judge
that presided over the children's CINC cases would have learned a great deal about
parents' criminal cases.

Moreover, the only evidence mother cites to support her contention is that the trial
judge mentioned her criminal cases while denying her motion for new attorney. A review
of the trial judge's statements concerning mother's criminal cases, however, clearly shows
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that the trial judge was attempting to explain why he did not believe mother's motion for
new attorney was made in good faith.

In denying the motion, the trial judge referenced mother's criminal case three
times. First, the trial judge stated that mother had already had two attorneys in her
children's CINC cases and had gone through multiple attorneys in her criminal cases.
Second, the trial judge noted that mother had caused several delays in both her children's
CINC cases and her criminal cases. Third, after mother complained about her attorney by
stating that she believed things "could've been different" had her attorney taken different
actions, the trial judge told mother that it was her criminal offenses in February 2014 and
July 2014, not her attorney actions or inactions, that led to the termination hearing.

By taking these statements in context, it is clear that the trial judge was explaining
why he believed mother's motion for new attorney was not in good faith. Again, mother
moved for a new attorney after the trial judge denied her motions for continuance and
recusal. Furthermore, mother moved for a new attorney just 2-days before the termination
hearing. The circumstances surrounding mother's request made the trial judge suspicious
that mother was attempting to delay the termination hearing by any means possible. As a
result, the trial judge brought up past examples of how mother had attempted to delay
proceedings, including new attorney requests and continuance delays in her criminal
cases. Regarding the trial judge's statement that it was mother's criminal offenses that led
to the State's motion to terminate parental rights, the trial judge clearly brought this up
because mother was shifting blame onto her attorney for the pending termination of her
parental rights.

Consequently, if one looks at the context of the trial judge's references to mother's
criminal cases, it is readily apparent that he referenced mother's criminal cases only to
support the denial of her new attorney motion. Certainly these facts alone do not create
reasonable doubt as to Judge Elliott's impartiality. Overall, mother has failed to provide
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this court with any persuasive arguments why the trial judge had a duty to recuse himself
under Kansas Code of Judicial Conduct. As a result, mother's recusal motion fails.

Did Trial Court Err When It Denied Mother's Motion for Continuance?

Next, mother argues that the trial court erred by denying her continuance motion.
Again, in mother's continuance motion, mother alleged that she needed a continuance
because SFCS was not investigating T.M. as a viable placement option as she had
requested. In her brief, mother argues that the trial court should have granted her
continuance motion because if T.M. was a viable placement option for I.H. IV and
A.L.H., then "the termination proceeding would have been unnecessary." Yet, mother's
argument is unpersuasive.

Standard of Review

An appellate court reviews the trial court's refusal to grant a continuance for an
abuse of discretion. In re J.A.H., 285 Kan. 375, 385, 172 P.3d 1 (2007). "Typically,
'discretion is abused only when no reasonable person would take the view adopted by the
district court.'" In re J.A.H., 285 Kan. at 385 (quoting Vorhees v. Baltazar, 283 Kan. 389,
393, 153 P.3d 1227 [2007]).

Applicable Law

K.S.A. 2014 Supp. 38-2246 states that proceedings under the Revised Kansas
Code for Care of Children must be disposed of without delay. The trial court shall not
grant a continuance unless there is good cause shown. K.S.A. 2014 Supp. 38-2246. When
the trial court rules on a motion for continuance, it "'must consider all circumstances,
particularly such matters as the applicant's good faith, his showing of diligence, and the
timetable of the lawsuit.'" In re J.A.H., 285 Kan. at 385 (quoting Fouts v. Armstrong
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Commercial Distributing Co., 209 Kan. 59, 65, 495 P.2d 1390 [1972]). Furthermore,
once the trial court has received a motion requesting termination of parental rights, the
trial court shall grant a continuance "only if the court finds it is in the best interests of the
child." K.S.A. 2014 Supp. 38-2267. When the trial court decides CINC cases, the trial
court must strive to decide these cases in "'child time' rather than 'adult time.'" In re
J.A.H., 285 Kan. at 386 (citing In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840
[2002]).

Did Trial Court Abuse Its Discretion When It Denied Mother's Motion for Continuance?

In this case, the trial court did not abuse its discretion by denying mother's motion
for continuance because mother's continuance motion (1) was not made in good faith, (2)
was not made diligently, (3) was not in the best interest of her children, and (4) was not
relevant to the termination of her parental rights.

First, given that mother made three motions right before the termination hearing
was scheduled, it is readily apparent that mother was not moving for a continuance in
good faith. Any of these three motions would have delayed the termination hearing if
granted. At the termination hearing, the trial judge cited to these three motions in
explaining that he believed mother was attempting to delay the termination hearing.

Second, it is evident from the record on appeal that mother was not diligent in
attempting to obtain a continuance. In the trial court's order denying the motion, the trial
court noted that the January 23, 2015, termination hearing date had been scheduled since
December 9, 2014, but mother did not move for a continuance until January 16, 2015.
The trial court further noted that all parties agreed to the January 23, 2015, date without
objection.

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Third, there was strong evidence that a continuance was not in the best interest of
I.H. IV and A.L.H. At the time of the termination hearing, the children had been in State
custody for almost a year. In denying mother's continuance motion, the trial judge stated
that he was denying mother's motion in part because finding permanency for the children
was essential. At the termination hearing, the trial judge also stated that he would not
delay the termination hearing because that was not in the best interest of the children.

Fourth, whether mother's parental rights were terminated had no impact on
whether I.H. IV and A.L.H. were ultimately placed with T.M. Under K.S.A. 2014 Supp.
38-2269(g)(2), after the trial court terminates a parent's parental rights, the court may
authorize adoption or appoint a permanent custodian. K.S.A. 2014 Supp. 38-2264(h)
requires that the trial court continue to have permanency hearings until the child has been
adopted or appointed a permanent custodian. Thus, the termination of mother's parental
rights did not and does not mean that T.M. could not become I.H. IV and A.L.H.'s
permanent custodian. In fact, a report from SFCS to the trial court following the
termination of parents' parental rights indicates that the agency was investigating T.M. as
a potential permanent custodian for children.

For the foregoing reasons, the trial court did not abuse its discretion in denying
mother's motion.

Did Trial Court Err in Failing to Appoint a Permanent Custodian Before Termination of
Parents' Parental Rights?

In October 2014, both parents moved to appoint D.L.W. as I.H. IV and A.L.H.'s
permanent custodian. The trial court never ruled on this motion. Father now argues that
the trial court erred by failing to appoint D.L.W. as children's permanent custodian before
it terminated his parental rights. Regardless, neither parent complied with the applicable
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statutes allowing parents to consent to the appointment of a permanent custodian; thus,
the trial court did not err by failing to appoint D.L.W. as children's permanent custodian.

Standard of Review

Whether the trial court erred by failing to appoint a permanent custodian before
the termination of parents' parental rights requires this court to interpret the Revised
Kansas Code for Care of Children, K.S.A. 2014 Supp. 38-2201, et. seq. Interpretation of
a statute is a question of law, subject to unlimited review. In re C.C., 29 Kan. App. 2d
950, 955, 34 P.3d 462 (2001).

Did Trial Court Correctly Disregard Father's Motion to Appoint D.L.W. as Permanent
Custodian of I.H. IV and A.H.L.?

On appeal, father cites to three statutory provisions to support his argument:
K.S.A. 2014 Supp. 38-2266(a), K.S.A. 2014 Supp. 38-2268(a), and K.S.A. 2014 Supp.
38-2268(c)(1). A review of these statutes, however, proves that parents failed to comply
with the statutes when requesting that D.L.W. be appointed as children's permanent
guardian.

Regarding K.S.A. 2014 Supp. 38-2266(a) and K.S.A. 2014 Supp. 38-2268(a), both
statutes require that parents abandon their rights over their child before they can request
the appointment of a permanent custodian. K.S.A. 2014 Supp. 38-2266(a) states:

"Either in the original petition filed under this code or in a motion made in an
existing proceeding under this code, any party or interested party may request that either
or both parents be found unfit and the parental rights of either or both parents be
terminated or a permanent custodian be appointed."

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Thus, under K.S.A. 2014 Supp. 38-2266(a), if parents want a permanent custodian
appointed, parents must first request that the trial court find them unfit. K.S.A. 2014
Supp. 38-2268(a) states that before a termination of parental rights hearing, "if the child's
permanency plan is either adoption or appointment of a custodian, with the consent of the
guardian ad litem and the secretary, either or both parents may relinquish parental rights
to the child, consent to an adoption or consent to appointment of a permanent custodian."
Thus, under K.S.A. 2014 Supp. 38-2268(a), if parents want a permanent custodian
appointed, parents must first relinquish their rights to their child.

Yet, in parents' motions to appoint D.L.W. as a permanent custodian, neither
parent requested that they be found unfit as required under K.S.A. 2014 Supp. 38-2266(a)
and neither parent requested that their rights be relinquished as required under K.S.A.
2014 Supp. 38-2268(a). The fact that parents currently appeal the termination of their
parental rights is further support that neither parent wanted to give up their parental rights
in requesting that D.L.W. be appointed as permanent guardian.

In In re C.C., 29 Kan. App. 2d 950, this court rejected an identical argument. In In
re C.C., parents argued that the trial court erred when it did not rule on their motion to
appoint a grandmother as a permanent guardian. Parents cited as authority K.S.A. 1999
Supp. 38-1581(a), which has since been recodified without any substantive changes to
K.S.A. 2014 Supp. 38-2266(a). Although parents asked for the appointment of a
permanent guardian, the parents contested that they were unfit. In ruling against parents,
this court interpreted K.S.A. 1999 Supp. 38-1581(a), holding that it was "difficult to read
[the] statute without concluding the movant must first request a parental unfitness finding
and then request one of two alternative dispositions: termination or permanent
guardianship." In re C.C., 29 Kan. App. 2d at 956. This court further held that parents'
motion was statutorily deficient because it was "incongruous for the parents to profess
their fitness, yet complain they were denied their right to use the procedures set forth in
[the statute]." In re C.C., 29 Kan. App. 2d at 956.
18

As in In re C.C., we find that the trial court did not err by disregarding both
parents' motions to appoint D.L.W. as a permanent guardian. If parents wanted to appoint
a permanent guardian via K.S.A. 2014 Supp. 38-2266(a), then parents should have agreed
to a finding of a parental unfitness. If parents wanted to appoint a permanent guardian via
K.S.A. 2014 Supp. 38-2268(a), then parents should have agreed to relinquish their
parental rights. Because parents failed to follow these procedures, parents' motions were
statutorily deficient; thus, the trial court correctly disregarded parents' motions.

Finally, father also cites K.S.A. 2014 Supp. 38-2268(c)(1) to support his argument
that the trial court erred by failing to appoint D.L.W. as I.H. IV and A.L.H.'s permanent
custodian. K.S.A. 2014 Supp. 38-2268(c)(1) states that "[a] parent may consent to
appointment of an individual as permanent custodian and if the individual accepts the
consent, such individual shall stand in loco parentis to the child and shall have and
possess over the child all the rights of a legal guardian." Thus, K.S.A. 2014 Supp. 38-
2268(c)(1) is different from K.S.A. 2014 Supp. 38-2266(a) and K.S.A. 2014 Supp. 38-
2268(a), because parent's ties with a child are not completely severed when there is a
consensual appointment of a permanent guardian. See State ex rel. Secretary of SRS v.
Bohrer, 286 Kan. 898, 915, 189 P.3d 1157 (2008). Nevertheless, to successfully appoint a
permanent guardian under K.S.A.2014 Supp. 38-2268(c)(1), the would-be permanent
custodian must consent to the appointment.

Here, however, the record on appeal reveals that D.L.W. did not want to be
children's permanent custodian. According to SFCS's December 2014 report to the court,
after parents moved to have D.L.W. appointed as permanent guardian, SFCS contacted
D.L.W. and reported that she expressed doubt as to whether she could meet the children's
supervision and structure needs. SFCS reported that D.L.W. stated that "[s]he would be
willing to act as a support for the boys if they are placed with another relative." SFCS
also reported that even if D.L.W. wanted the children, it might be unworkable to place
the children with D.L.W. because D.L.W. has a criminal history record and a
19

communicable disease. In essence, the trial court could not have erred given that the
record indicates that D.L.W. never consented to becoming children's permanent guardian.
At the very least, if the trial court erred by failing to address parents' motions, this error
was harmless because D.L.W. did not want to become children's permanent guardian. See
In re J.D.C., 35 Kan. App. 2d 908, 915, 136 P.3d 950 (2006) aff'd, 284 Kan. 155, 159
P.3d 974 (2007), where this court applied harmless error analysis in a CINC case.

As a result, although father cites to K.S.A. 2014 Supp. 38-2266(a), K.S.A. 2014
Supp. 38-2268(a), and K.S.A.2014 Supp. 38-2268(c)(1) to support his argument, he has
failed to prove the trial court erred by failing to address his and mother's motions to
appoint D.L.W. as children's permanent custodian. Accordingly, his argument fails.

Did Trial Court Err by Terminating Parents' Parental Rights?

Lastly, parents argue that the trial court erred by terminating their parental rights.
As detailed below, clear and convincing evidence supports the trial court's findings that
parents were unfit, that parents were unlikely to change in the foreseeable future, and that
the termination of parents' parental rights was in the best interest of I.H. IV and A.L.H.
Moreover, neither parent persuasively argue that the trial court erred in making its
decision.

Standard of Review

In reviewing the trial court's termination of parental rights, an appellate court must
"consider whether, after review of all the evidence, viewed in the light most favorable to
the State, it is convinced that a rational factfinder could have found it highly probable,
i.e., by clear and convincing evidence." In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594
(2008). In making this determination, an appellate court does not weigh conflicting
20

evidence, pass on the credibility of witnesses, or re-determine questions of fact. In re
B.D.-Y., 286 Kan. at 705.

Applicable Law

Before the trial court can terminate a parent's parental rights, the trial court must
find that the moving party has proven the following by clear and convincing evidence: (1)
the parent is unfit "by reason of conduct or condition which renders the parent unable to
care properly for a child"; (2) the conduct or condition that renders parent unfit "is
unlikely to change in the foreseeable future"; and (3) termination of parent's parental
rights is in the best interest of the child. K.S.A. 2014 Supp. 38-2269(a), (g)(1). Under
K.S.A. 2014 Supp. 38-2269(b) and (c), the trial court must consider a nonexclusive list of
factors while determining whether a parent is unfit. "The existence of any one of [these]
factors standing alone may, but does not necessarily, establish grounds of termination of
parental rights." K.S.A. 2014 Supp. 38-2269(f).

Was There Clear and Convincing Evidence to Support Trial Court's Findings?

When the trial court terminated parents' parental rights, the trial court found that
there was clear and convincing evidence that parents were unfit by reason of conduct or
condition which rendered parents unable to care for I.H. IV and A.L.H. and that this
conduct or condition was unlikely to change in the foreseeable future based on the
following: (1) both parents were arrested in late February 2014 and July 2014, charged
with multiple crimes, convicted of felonies, and sentenced to prison until 2016 and 2021,
respectively; (2) drugs were found in areas of the home I.H. IV and A.L.H. had access to;
(3) I.H. IV and A.L.H. were doing well, feeling safe, and less aggressive since entering
State custody; (4) parents' case plan required counseling and both parents were
uncooperative; (5) social agencies made reasonable efforts to reintegrate I.H. IV and
A.L.H. with parents but parents failed to comply with reasonable case plan to support
21

reintegration; (6) parents did not make efforts to adjust their circumstances and/or
conduct to meet the needs of I.H. IV and A.L.H.; (7) parents subjected I.H. IV and
A.L.H. to sexual abuse, emotional abuse, and domestic violence; (8) parents failed to care
for I.H. IV and A.L.H.; (9) parents' use of illegal narcotics was for such a duration to
prevent them from caring for I.H. IV and A.L.H.; and (10) family had contact with DCF
since 2004.

After making this finding, the trial court further found that there was clear and
convincing evidence that termination of parents' parental rights would be in the best
interests of I.H. IV's and A.L.H.'s physical, mental, and emotional health. Thus, the trial
court terminated parents' parental rights.

On appeal, mother and father attempt to undermine the trial court's order
terminating their parental rights by attacking the factual findings made by the trial court
in support of termination. Nevertheless, a review of the evidence supporting each of the
trial court's findings and a review of parents' arguments concerning these findings
definitively proves that clear and convincing evidence supports the termination of
parents' parental rights.

Did Testimony From Termination of Parental Rights Hearing Support Trial Court's
Underlying Factual Findings?

Testimony from the termination hearing supports each of the factual findings the
trial court relied on in terminating parents' parental rights.

First, it is an undisputed fact that parents were arrested and charged with felonies
in late February 2014, rearrested and again charged with new felonies in July 2014, and
then convicted of these felonies and sentenced to prison in August and September 2014.
22

Both Undersheriff Applegarth and Nutsch testified about parents' convictions and
sentences.

Second, Undersheriff Applegarth testified that the drugs parents were selling from
their home could be accessed by children. At the termination hearing, neither parent
presented evidence that the drugs were inaccessible by children.

Third, at the termination hearing, the State presented evidence that I.H. IV and
A.L.H. were doing better, feeling safe, and less aggressive since being removed from
parents. Again, Bloomfield testified that both I.H. IV and A.L.H had improved in school,
that I.H. IV was relieved parents were arrested, and that I.H. IV and A.L.H. were
significantly less aggressive. Nutsch also testified that I.H. IV and A.L.H. had improved
greatly.

Fourth, Stadtler testified that parents were uncooperative in the case plan assigned
counseling. Stadtler testified that parents did not come to some counseling sessions and
were argumentative in the sessions they attended.

Fifth, the State presented evidence that SFCS made reasonable efforts to
reintegrate I.H. IV and A.L.H. with parents but parents did not comply with the case plan
goals that were put in place. Nutsch testified that SFCS offered parents classes,
counseling, and services so parents could reach their case plan goals. Yet, parents
complied with only one case plan goal—keeping SFCS informed about their pending
criminal cases. Moreover, Nutsch testified that SFCS had taken reasonable steps to
reintegrate parents with children but parents did not make reasonable efforts to obtain
reintegration.

Sixth, the State presented evidence that parents did not make efforts to adjust their
circumstances or conduct to meet the needs of I.H. IV and A.L.H. Again, Undersheriff
23

Applegarth testified about parents being rearrested on new drug distribution charges in
July 2014. Nutsch testified about parents failing to comply with SFCS case plan goals
even though SFCS provided parents with support to meet those goals.

Seventh, the State presented evidence that I.H. IV and A.L.H had been subjected
to sexual abuse, emotional abuse, and domestic violence. Bloomfield stated that the
children spoke to her about father beating mother. Regarding sexual abuse and
inappropriate sexual activity, Bloomfield and Lewis testified that A.L.H. told them that
father had asked him to touch mother's vagina while laughing at him. Moreover, evidence
was presented concerning I.H. IV and A.L.H. witnessing parents engaging in sexual acts.
Regarding emotional abuse and domestic violence, the State presented evidence that
father beat up mother in front of children, that father pointed a gun at mother's head in
front of children, that father whipped children with belts, that father tased I.H. IV as a
practical joke. Eighth, the preceding evidence of emotional abuse, sexual abuse, and
domestic violence also support the trial court's finding that parents failed to properly care
for I.H. IV and A.L.H.

Ninth, parents' felony convictions and prison sentences support that parents' use of
illegal drugs has been for such a duration to prevent them from caring for I.H. IV and
A.L.H. Due to father's drug crime convictions and prison sentence, father will be in
prison until February 2021. Due to mother's drug crime convictions and prison sentence,
mother will be in prison until July 2016. Thus, both parents' use of illegal drugs has taken
them away from their children for several years. Also, Nutsch testified about father using
mother's clean urine inside a penis prosthetic to pass his urinalysis drug tests. This
indicates that parents' use of drugs has negatively impacted parents' ability to care for I.H.
IV and A.L.H. because father clearly continued to use drugs while children were in State
custody and mother supported father's drug use by supplying him clean urine.

24

Tenth, Lewis testified about the parents' contact with DCF starting in 2004. Lewis
testified that DCF was contacted to investigate the family in 2004, 2006, 2007, 2011,
January 2014, and February 2014. Lewis also provided the trial court with details about
each contact DCF had with the family.

In sum, there was testimony presented during the termination of parental rights
hearing to support each factual finding made by the trial court.

Are Mother's Arguments Meritless?

On appeal, mother challenges several of the factual findings the trial court made in
support of terminating her parental rights. Yet, as detailed below, all of mother's
arguments are meritless.

First, mother argues that the trial court erred by finding that (1) she was
uncooperative at counseling, (2) she did not make efforts to adjust her circumstances to
meet her children's needs, and (3) social agencies made reasonable efforts to reintegrate
I.H. IV and A.L.H. with parents. To support her argument, mother points to her testimony
at the termination hearing. Again, at the termination hearing, mother testified that she
cooperated with her case plan goal of counseling. Mother testified that she was adjusting
her circumstances by taking advantage of prison counseling and education programs.
Moreover, mother testified that she was unhappy with SFCS because she believed they
were not taking certain steps to help her reintegrate with her children.

As previously detailed, however, Stadtler testified that mother was uncooperative
in counseling, Nutsch explained how mother had not adjusted her circumstances by
failing to comply with case plan goals, and Nutsch also testified that SFCS had made
reasonable efforts to reintegrate mother and children. Thus, the trial court obviously made
a credibility determination that Stadtler and Nutsch were more trustworthy than mother.
25

Because this court cannot reweigh evidence or substitute its judgment for the judgment of
the trial court, mother cannot successfully argue that the trial court lacked clear and
convincing evidence to rely on these factors in terminating her rights. See In re B.D.-Y.,
286 Kan. at 705.

Next, mother takes issue with the trial court's finding that (1) parents subjected
I.H. IV and A.L.H. to sexual abuse, emotional abuse, and domestic violence and (2)
parents' use of drugs had been for such a duration to prevent them from caring for I.H. IV
and A.L.H. Mother asserts that these factors were insufficient reasons to find her unfit.
Nevertheless, in making these arguments mother ignores the plain language of K.S.A.
2014 Supp. 38-2269(b)(2) and (3). Under K.S.A. 2014 Supp. 38-2269(b)(2) and (3), the
trial court must consider certain factors in determining whether a parent is unfit. These
factors include whether parents physically, emotionally, or sexually abused their children
and whether parents used dangerous drugs for such a duration that parents cannot
adequately care for children. K.S.A. 2014 Supp. 38-2269(b)(2) and (3). Furthermore,
under K.S.A. 2014 Supp. 38-2269(f), either of these factors alone could be sufficient to
establish grounds for terminating of mother's rights. Therefore, mother's argument is
wrong because in making a finding of parental unfitness, the trial court must consider the
factors she argues against and may terminate a parent's parental rights based on either
factor alone.

It is also worth noting that in making this argument, mother seems to ignore that
the abuse and violence her children were exposed to and her use of illegal drugs were just
two factors of many factors that the trial court relied on in making its finding of unfitness.
Even if the trial court did not consider these factors in making its finding that mother was
unfit, there would still be clear and convincing evidence to support the finding.

Finally, mother argues that the trial court should not have considered the family's
prior contact with DCF in finding her unfit. Mother argues that the prior DCF contacts
26

were not a valid reason for termination because most of the reports to DCF were
unsubstantiated. Nevertheless, Lewis testified about the family's prior contact with DCF.
The family's contact with DCF shows that the family has had many problems over the
years and has failed to adjust their circumstances. Accordingly, the trial court did not err
in considering this information. Moreover, like mother's preceding argument, even if the
trial court erred in considering this information, this error was harmless given the weight
of the evidence supporting the trial court finding of unfitness.

Are Father's Arguments Meritless?

On appeal, father merely asserts that the trial court's finding was unreasonable
given that (1) he communicated with his children when he could, (2) there was no
evidence that he neglected his children, and (3) there was no evidence that he physically,
mentally, or emotionally neglected his children. Father's arguments, however, are totally
unpersuasive. Whether father communicated with his children is irrelevant to the trial
court's finding of unfitness. Moreover, even if father did not neglect his children this facts
is of little significance given the weight of the evidence supporting the trial court's
finding of unfitness. As previously detailed, the trial court listed several reasons in
support for its finding that father was unfit. The fact father stayed in contact with his
children does nothing to mitigate the evidence supporting that he committed acts of
domestic violence, emotionally abused his children, sexually abused his children, and is
incarcerated until 2021. Consequently, father's arguments on appeal are meritless.

Conclusion

Although parents attempt to undermine the trial court's order terminating their
parental rights by attacking the factual findings that trial court made in support of
termination, testimony at the termination hearing supported each of the trial court's
findings. Moreover, neither mother nor father provided this court with any persuasive
27

arguments as to why the trial court erred in making these findings. Accordingly, the trial
court's finding that parents were unfit, parents were unlikely to change in the foreseeable
future, and that termination of their parental rights was in the best interests of children
was supported by clear and convincing evidence. As a result, we affirm the trial court's
order terminating father's and mother's parental rights.

Affirmed.