In re I.H.

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NOT DESIGNATED FOR PUBLICATION

No. 113,662

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of I.H.,
Date of Birth: XX/XX/2009,
A Child Under the Age of 18 Years.


MEMORANDUM OPINION

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed February 26,
2016. Affirmed.

Dennis J. Stanchik, of Olathe, for appellant father.

Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.

Before BRUNS, P.J., MCANANY, J., and JOHNSON, S.J.

Per Curiam: D.H. (father), the putative father of I.H., a minor child born in 2009,
appeals the district court's order terminating his parental rights to I.H. Father was
incarcerated throughout the child in need of care proceedings below. He spoke to his
appointed counsel on one occasion but thereafter did not respond to counsel's calls or
correspondence. Eventually the district court made its termination decision based on
evidence it permitted the State to proffer, without objection from father's counsel,
pursuant to K.S.A. 2014 Supp. 38-2248(f). Father argues on appeal that the district court
erred when it allowed that proffer without first determining that father was aware of his
statutory right to instruct his attorney to object to proceeding by proffer. We reject
father's arguments and affirm the district court.

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FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant to father's appeal are not in dispute. On August 6, 2013, the
State filed a petition which alleged numerous statutory grounds to support its claim that
I.H. was a child in need of care (CINC) and should be removed from the home of his
natural mother, Q.C. (mother). Mother executed a no contest statement and, on
November 21, 2013, the district court adjudicated I.H. a CINC as to mother.

The State's CINC petition identified D.H. as I.H.'s putative father, although he had
never been ordered to pay child support. The State asserted: "The mother reports that the
father of the child has never been involved in [I.H.]'s life." The State further alleged that
father's whereabouts were unknown but that mother believed he might be incarcerated.
The State eventually located father at a federal prison in Wisconsin and served him with
process. By that time the district court had appointed Michael Bartee as father's counsel.
On February 20, 2014, the district court called the case for father's first appearance.
Father appeared by Bartee. The State proffered the evidence it alleged in the petition and
provided confirmation that father, in fact, was incarcerated and unable to meet I.H.'s
needs. The district court adjudicated I.H. a CINC as to father. Based on the CINC
adjudications of the parents, the district court entered "a disposition order which [was] a
reintegration plan for . . . mother for six months." The court noted that when Father was
"released from his status as an incarcerated person he [would] also be afforded a
reintegration plan, or [he could] work on reintegration efforts while incarcerated."

The State eventually filed a motion to terminate the parental rights of both mother
and father. Father did not include that motion in the record on appeal. On August 27,
2014, the district court conducted a hearing on the motion. Mother stipulated that she was
unfit to parent I.H. and that those circumstances were unlikely to change. The district
court accepted the stipulation and found mother unfit; but, by agreement among mother,
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the State, and I.H.'s guardian ad litem, the court continued the termination hearing 120
days to give mother one last chance to change.

Father, still incarcerated, appeared by Bartee at that hearing. The district court
took up the State's motion to terminate father's rights. The State indicated a desire to
proceed by proffer. Bartee requested a continuance. He explained that he had talked to
father by phone back in February. In that conversation father told Bartee that he had 1 1/2
years left on his sentence. Bartee said he had subsequently left phone messages with
father's prison caseworker, sent father letters, and sent father a blank relinquishment
form. However, father had not responded by phone or mail. Bartee's correspondences to
father had not been returned undelivered. Bartee did not attempt to explain what further
steps he thought he could take to obtain a response from father if the court granted a
continuance. The district court denied the continuance request.

The district court indicated it would permit the State to proceed with its
evidentiary proffer. Bartee did not lodge an objection to proceeding by proffer. The State
submitted the following statement:

"Judge, the father, [D.H.], was not available as a resource at the time the child
came into custody while in the care of the mother.
"The father is in a federal facility in Oxford, Wisconsin.
"Our information is that he will not be eligible for release for his felony charges
until May 27 of 2016.
"He has not communicated with [the Kaw Valley Center] as to the welfare of the
child and has not sought to have whatever form of contact, whether that would be in
writing or sending him gifts or just any communication that might have been available
albeit while he is incarcerated."



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The district judge then inquired of mother concerning facts alleged in the CINC
petition that had been proffered at father's first appearance. Mother confirmed that father
had never had contact with the child. Mother also said she believed father went to prison
when the child was "almost one." Finally, mother indicated that father never provided her
with any form of child support.

Based upon the proffered evidence the district court found that father was unfit for
several statutory reasons including K.S.A. 2014 Supp. 38-2269(b)(5) ("conviction of a
felony and imprisonment"). The district court further found that father's unfitness was
unlikely to change in the foreseeable future due to his incarceration, stating, "The
foreseeability is overwhelmingly supportive of the fact that [father] will never be fit to
parent this child." But the district court agreed to leave the "best interest [issue] open not
because [father] deserve[d] that opportunity, but because [the court] want[ed] to track"
father's proceedings with the continued termination proceeding regarding mother.

On January 9, 2015, the district court resumed the continued termination hearing.
Bartee, appearing for father who was still in prison, reiterated that, in spite of his best
efforts, he had still been unable to make contact with father. The district court determined
that termination of mother's and father's parental rights was in I.H.'s best interests.

Father timely filed his notice of appeal.

ANALYSIS

Father states in his brief that his issue on appeal is that "the district court abused
its discretion in concluding that the termination of [his] parental rights was in the best
interests of the child." However, father does not challenge the truth of the facts on which
the court relied to terminate his parental rights. Rather, he argues that the court should not
have considered those facts in the first place. He contends that implicit in the proffer
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statute is a requirement that the district court determine that an absent parent has been
advised that the parent could prevent a proceeding by proffer by instructing his or her
attorney to object. He further "respectfully suggests" that due process considerations
justify imputing a similar requirement into the proffer statute. Finally, he maintains that
had the court excluded the proffered evidence, as it should have, there would be no
evidence on which to base a termination decision. Therefore, he concludes that the
district court abused its discretion in ordering termination.

Thus, father does not actually challenge any aspect of the district court's judgment
other than its admission into evidence of the State's proffer. We must, then, examine the
statute father claims the court erroneously applied. As father acknowledges, the Revised
Kansas Code for Care of Children (RKCCC), K.S.A. 2014 Supp. 38-2201 et seq.,
authorizes district courts to proceed by proffer as to parties not present in evidentiary
termination hearings. K.S.A. 2014 Supp. 38-2248(f) provides: "In evidentiary hearings
for termination of parental rights under this code, the case may proceed by proffer as to
parties not present, unless they appear by counsel and have instructed counsel to object."

At the outset, we note that the State urges us to refuse to consider father's
arguments. The State contends that father did not preserve his issues for appellate review
because he did not object in the district court to proceeding by proffer and he failed to
raise any due process challenge there. K.S.A. 60-404 provides that a party must object to
the admission of evidence in order to argue on appeal that the erroneous admission of
such evidence requires reversal. Also, and generally, we decline to consider constitutional
or other grounds for reversal asserted for the first time on appeal. There are, however,
several exceptions to the general rule that a new legal theory may not be asserted for the
first time on appeal, including the following: (1) the theory involves only a question of
law arising on proved or admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of justice or to prevent the
denial of fundamental rights; and (3) the judgment of the trial court may be upheld on
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appeal despite its reliance on the wrong ground or having assigned a wrong reason for its
decision. In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert.
denied 555 U.S. 1178 (2009).

Father concedes that he is raising his constitutional point for the first time on
appeal. He also acknowledges that Bartee did not object to the State's request to proceed
by evidentiary proffer. However, he claims that resolution of his issues is necessary to
serve the ends of justice or prevent the denial of fundamental rights. The fundamental
right he invokes is as follows: A parent's right to make decisions regarding the care,
custody, and control of his or her child is a fundamental liberty interest protected by the
Fourteenth Amendment to the United States Constitution. He cites In re J.D.C., 284 Kan.
155, 166, 159 P.3d 974 (2007), as authority for this proposition. We have no quarrel with
this authority, as far as it goes. However, in In re Adoption of A.A.T., 287 Kan. 590, Syl.
¶ 3, 196 P.3d 1180 (2008), cert. denied 556 U.S. 1184 (2009), our Supreme Court noted
that the liberty interest of an unwed father, which we infer applies to father here, has
requirements and limitations. It is not as automatically "fundamental" as father seems to
assert. Nevertheless, because the facts concerning the proffer procedure at issue are not in
dispute and father's purported fundamental parental rights have been affected by that
procedure, we will consider, at least to an extent, father's claims.

We decline to impute into the statute a requirement that is not in the statute

First, Father insists that K.S.A. 2014 Supp. 38-2248(f) did not authorize the
district court to proceed by proffer in this case because the court did not "inquire as to
whether [father] had instructed [Bartee] to object." It is true that the district court did not
specifically ask Bartee whether Father had instructed him to object. However, as a
practical matter, Bartee's remarks regarding his inability to make contact with father
rendered such an inquiry unnecessary. As explained above, after the State sought
permission to proceed by evidentiary proffer, Bartee requested a continuance because his
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"last communication with [father] was in February" via telephone and, since that time, he
had been unable to contact father. Because father did not communicate with Bartee he
could not have instructed counsel to do anything at all. Clearly, then, father, the party not
present, did not instruct his attorney to object to the State's proceeding by proffer. The
plain language of K.S.A. 2014 Supp. 38-2248(f) authorized the district court to proceed
by evidentiary proffer.

Moreover, father fails to justify his request that we impute into the proffer statute
language the legislature did not include. Interpretation of a statute is a question of law
over which we exercise unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d
90 (2014). "The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. [Citation omitted.] An appellate
court's first attempt to ascertain legislative intent is through an analysis of the language
employed, giving ordinary words their ordinary meaning. [Citation omitted.]" Cheney v.
Poore, 301 Kan. 120, 125, 339 P.3d 1220 (2014). When a statute is plain and
unambiguous, we should not speculate about the legislative intent behind that clear
language, and we should not read something into the statute that is not readily found in its
words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).

Moreover, "in interpreting statutes we frequently point to parallel statutes [or
provisions] and note that the language in one statute [or provision] may illustrate that the
legislature knows how to state something that is omitted in another statute [or
provision]." Cady, 298 Kan. at 749. K.S.A. 2014 Supp. 38-2248(b) illustrates that the
legislature could have provided for what father asks us to impute. K.S.A. 2014 Supp. 38-
2248(b) provides:

"(b) Prior to the acceptance of any stipulation or no contest statement, other than
to names, ages, parentage or other preliminary matters, the court shall ask each of the
persons listed in subsection (a) the following questions:
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(1) Do you understand that you have a right to a hearing on the allegations
contained in the petition?
(2) Do you understand that you may be represented by an attorney and, if you are
a parent and financially unable to employ an attorney, the court will appoint an attorney
for you, if you so request?
(3) One of the following: (A) Do you understand that a stipulation is an
admission that the statements in the petition are true or (B) Do you understand that a no
contest statement neither admits nor denies the statement in the petition but allows the
court to find that the statements in the petition are true?
(4) Do you understand that, if the court accepts your stipulation or no contest
statement, you will not be able to appeal that finding, the court may find the child to be a
child in need of care and the court will then make further orders as to the care, custody
and supervision of the child?
(5) Do you understand that, if the court finds the child to be a child in need of
care, the court is not bound by any agreement or recommendation of the parties as to
disposition and placement of the child?"

Whether K.S.A. 2014 Supp. 38-2248(f) should include the requirement for a
district court's examination of the absent parent's counsel on the proffer issue is a
question for the legislature, not this court. The legislature has the authority to afford the
absent parent the protection father desires. But the legislature has not done so. K.S.A.
2014 Supp. 38-2248(b) demonstrates that the legislature knew how to require that the
district court conduct an inquiry of the absent parent's counsel concerning instructions to
object to proceeding by proffer. The legislature did not do so. Father fails to persuade us
that we should read into the statute a requirement the legislature did not include.

We decline to consider father's due process argument because it is not properly briefed.

Second, father contends that in order to comport with the requirements of due
process, this court should read a requirement into K.S.A. 2014 Supp. 38-2248(f) that is
not readily found in its words, i.e., before the district court can constitutionally proceed
with a termination by evidentiary proffer it must find that the absent party was aware of
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the statutory right to have counsel object. Other than as we noted above, we have no real
quarrel with father's contention that "the right of a parent to the care and custody of his
[or her] children is a liberty interest entitled to protection." Again, father cites In re
J.D.C., 284 Kan. at 166, as authority for this proposition. But we decline to consider that
proposition in isolation. The Supreme Court in In re J.D.C. did more than just state a due
process proposition. It described the proposition in the full context necessary for a proper
due process analysis of whether the fundamental liberty interest in the proposition had
been compromised:

"The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Winston v. Kansas Dept. of SRS, 274 Kan. 396,
409, 49 P.3d 1274 (2002), cert. denied 537 U.S. 1088 (2002). In reviewing a procedural
due process claim, we must first determine whether a protected liberty or property
interest is involved. If it is, then we must determine the nature and extent of the process
due. 274 Kan. at 409.

"A parent's right to make decisions regarding the care, custody, and control of his
or her child is a fundamental liberty interest protected by the Fourteenth Amendment.
Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000);
Sheppard v. Sheppard, 230 Kan. 146, 152, 630 P.2d 1121 (1981), cert. denied 455 U.S.
919 (1982). That right, however, is not absolute. The welfare of children is a matter of
State concern. Sheppard, 230 Kan. 146, Syl. ¶ 2. Before a parent can be deprived of [his
or] her right to the custody, care, and control of her child, he or she is entitled to due
process of law. 230 Kan. at 152-54.

"A due process violation exists only when a claimant is able to establish that he
or she was denied a specific procedural protection to which he or she was entitled. The
type and quantity of procedural protection that must accompany a deprivation of a
particular property right or liberty interest is determined by a balancing test, weighing:
(1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest
through the procedures used and the probable value, if any, of additional or substitute
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procedural safeguards; and (3) the State's interest in the procedures used, including the
fiscal and administrative burdens that any additional or substitute procedures would
entail. Mathews, 424 U.S. at 335; Winston, 274 Kan. at 409-10." In re J.D.C., 284 Kan. at
166-67.

Father has neglected to fully brief this issue. He has not attempted to establish by
factual recitation or analysis that he was denied "a specific procedural protection to which
he . . . was entitled." He simply asserts that he was entitled and that entitlement was
denied. He fails to even refer to the Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct.
893, 47 L. Ed. 2d 18 (1976), balancing test we must apply to such claims, let alone
provide us facts, argument, and authority on what we should weigh in applying the
balancing test. Therefore, we have nothing other than his claim on which to evaluate its
propriety. We decline father's implicit request that we create analyses and arguments he
chose not to make in order to evaluate their merits.

Issues not briefed by the appellant or raised incidentally in a brief and not argued
therein are deemed waived and abandoned. See Friedman v. Kansas State Bd. of Healing
Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013); Superior Boiler Works, Inc. v. Kimball,
292 Kan. 885, 889, 259 P.3d 676 (2011). Moreover, failure to support a point with
pertinent authority or show why it is sound despite a lack of supporting authority or in the
face of contrary authority is akin to failing to brief the issue. Friedman, 296 Kan. at 645.

Father has failed to develop an actual due process argument, and he fails to
support his claim that the statute deprives him of due process with any legal authority.
Thus, we decline to consider father's due process claim, not because father failed to
preserve it before the district court but because he failed to adequately brief his claim on
appeal.

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Father has failed to persuade us that the district court erred when it accepted the
State's proffer without an objection from father's counsel and when it terminated father's
parental rights based on the proffered facts.

Affirmed.