In re M.A.E.

1

NOT DESIGNATED FOR PUBLICATION

No. 115,690

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of

M.A.E., YOB 2002;
M.A.E., YOB 2003;
B.A.B., YOB 2007;
M.B., YOB 2011;
B.A.B., YOB 2013; and
R.L.B., YOB 2014.

MEMORANDUM OPINION


Appeal from Johnson District Court; KATHLEEN L. SLOAN, judge. Opinion filed February 10,
2017. Affirmed.

Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, for appellant natural mother.

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

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

Per Curiam: Mother's parental rights were terminated to her six children after a
trial at the district court. On appeal, Mother argues: (1) she was denied due process when
the district court judge failed to recuse herself after receiving an ex parte communication
from a detective regarding an incident that occurred in the case; (2) she was denied due
process because of ineffective assistance of counsel; and (3) there was insufficient
evidence to find that the conditions that made her unfit to parent her six children were
unlikely to change in the foreseeable future.

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We affirm the district court's findings because the judge was not biased by the ex
parte communication and did not have to sua sponte recuse herself, therefore Mother was
not denied due process. Mother's counsel was not ineffective and she was not denied due
process. There was clear and convincing evidence that Mother had a pattern of conduct
over a period of nearly 3 years that was unlikely to change in the foreseeable future.

Mother is the mother of Ma.E (born 2002), Me.E. (born 2003), Bri.B. (born 2007),
M.B. (born 2011), Bro.B. (born 2013), and R.L.B. (born 2014.) Father is the father of
Bri.B., M.B., Bro.B., and R.L.B. M.L., also known as M.E., is the father of Ma.E. and
Me.E. M.E. was never involved in his children's case and is incarcerated in Florida.
Mother (G.S.) and Father (B.B.) were married in February 2013. Mother appeals from the
termination of her parental rights for all of the children.

The first report concerning the children came to the Kansas Department for
Children and Families (DCF) on August 17, 2004. It was an assessment of concerns
about the lack of supervision and physical abuse. It was reported that Ma.E. had been
found by the Kansas City Police Department wandering the streets for at least 45
minutes. Mother and maternal grandmother were listed as the alleged perpetrators.
Services were offered but refused by the family.

A second report came to DCF on May 20, 2009. It was alleged that Father had hit
Me.E. with a belt, causing a red mark around her left arm. Also, the house did not have
electricity.

The child in need of care (CINC) petition also stated that the Missouri Department
of Social Services had received reports for the family on November 22, 2009, and
January 13, 2010. Assessments were completed but the reports were not released from
Missouri.

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On November 27, 2012, DCF social work specialist, Katie Olivas, was assigned to
investigate the children the first time. The report was a nonabuse/nonneglect, without
proper care or control, against Mother. Mother was 8 months pregnant with Bro.B. and
had been using hydrocodone and oxycodone during her pregnancy. Mother told Olivas
she began using hydrocodone and oxycodone in January 2012. More recently, she had
been taking suboxone, which she got from a friend, and started using it when she was
pregnant. She also reported she went to the methadone clinic at the University of Kansas
Medical Center once a day. Olivas spoke with Father who said Mother had been
hospitalized to get off painkillers prior to the report. He also reported Mother had used
hydrocodone and sometimes Percocet for the past 8 months. Father stated he had a
prescription for hydrocodone and used it as prescribed, but when it ran out he got it from
the street.

Olivas received a second report on December 6, 2012, for lack of supervision.
Mother was still pregnant with Bro.B. and it was reported that the other 4 children had
been left alone at home on at least 2 occasions. On December 12, 2012, Olivas spoke to
Mother who admitted to leaving the children alone at home to get cigarettes at the gas
station. Olivas offered DCCCA Family Preservation services, but Mother refused after
speaking to Father. Ultimately, they both agreed to services.

A third report was assigned to Olivas on April 5, 2013. There was an allegation of
physical neglect of Bro.B., who was 12 weeks old. It was reported that he had a rash on
his body and there was concern he needed medical attention. Olivas spoke with Bro.B.'s
paternal stepgrandmother, and she reported that no one knew where Mother or Father
were. Olivas received a phone call from the East Antioch Elementary School principal
who told Olivas that Mother and Father had not picked up the children from school on
April 4, 2013. Another family member had picked up the children and told her about
Bro.B.'s rash.

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Olivas observed the rash on Bro.B. Mother referred to it as a diaper rash. Olivas
stated the rash appeared to be quite painful. It had an open and cracked wound with some
powder in it that looked as though it had been there for quite some time. The rash was
near his rectum on both sides of his cheeks. Mother reported she had applied Neosporin
to the rash for about 1 1/2 weeks twice a day, and that Bro.B.'s skin had peeled because
of the Neosporin. At this point, the family had not been working with DCCCA and
Mother told Olivas the services were not what she thought and things were too hectic to
continue working with the service at that point.

Olivas felt intervention was necessary after the third report because there were
multiple concerns with drug use, the parents were not participating in services, and the
parents showed a lack of responsibility and a lack of acknowledgement regarding the
reported concerns. Olivas referred the case for the filing of CINC petitions with the
district attorney's office on April 9, 2013. There was a temporary custody hearing that
day and the children were placed in state custody and placed with their paternal
grandfather and stepgrandmother, A.B. and J.B. Both Mother and Father took a drug test
at the hearing that day. Father tested positive for benzodiazepines and amphetamines. He
stated he had a prescription for the benzodiazepines. Mother tested positive for
methamphetamine and said she had last used on April 5, 2013. Olivas substantiated the
physical neglect report regarding Bro.B. on both parents and the substantiations were
never appealed.

On May 8, 2013, both Mother and Father filed stipulations that the children were
in need of care. The first reintegration plan was granted on June 25, 2013, and was from
May 30, 2013 to November 30, 2013. The plan required, among other tasks, that the
parents maintain employment to fulfill the family budget, participate in individual and
family therapy, participate in outpatient drug and alcohol programs, participate
appropriately during visitation, and resolve all legal issues.
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On April 8, 2013, Mother expressed to Olivas that she and Father had been
fighting a lot. When they fought, either she or Father left and stayed at a hotel.

On August 2, 2013, Olivas received a report of physical abuse by Father towards
Bro.B. During a visit at the KVC office, it was determined that Bro.B. had a broken
femur and was in Father's care at the time. Father reported that during the meeting, Bro.B
was fussy. He asked the case manager if he could go change Bro.B.'s diaper. He stated he
was gone for 3 minutes. Olivas stated the parents were agitated during the meeting
because they had been told prior to the visit that they would no longer have weekend
visits and all visits would have to be supervised and go through KVC. Bro.B. received
medical attention for his broken leg. Father was substantiated for physical abuse and the
substantiation was never appealed.

On September 5, 2013, partway through the first reintegration plan, Julie Williams
took over as the case manager. On October 21, 2013, the State filed its first motion to
terminate Mother's and Father's paternal rights. Williams opposed the motion and
recommended that the parent's reintegration plan be extended. At the time, she felt she
had not had enough time working with the family to make a proper determination as to
what was in the children's best interests. She believed there had been a significant lack of
services that needed to be initiated.

On February 24, 2014, the district court granted Mother and Father a second 90-
day reintegration plan. Then, on February 26, 2014, 2 days after the beginning of the
second reintegration plan, Olivas was assigned to a nonneglect/nonabuse report because
Mother had given birth to a baby boy, R.L.B. Mother had not told anyone about her
pregnancy. Mother acknowledged to Olivas that she had not told anyone she was
pregnant because she and Father were afraid this child would also be removed. On March
6

6, 2014, the State filed a CINC petition for R.L.B. and he was subsequently taken into
State custody.

By April 2014, Williams believed the parents had successfully completed a
significant portion of their plan. There was an ongoing conversation about sending the
children home by the end of the school year. At this time, the parents were allowed
extended unsupervised visits with the children. Williams believed that if the parents were
given more time the children could be reintegrated.

However, problems began popping up around this time as well. Both Mother and
Father struggled with legal issues. The parents had been charged with theft in an incident
where the children were involved. The parents continually minimized the situation. They
said the children had been in the vehicle but they were not in the store. The parents did
not understand what the big deal was. Mother had picked up another criminal charge.

The parents were required to take random drug tests and they struggled to follow
through with those. Mother tested positive for amphetamine and methamphetamine on
April 11, 2013, and then she missed 8 drug tests from June 2013 to August 2013.

Williams believed a domestic violence assessment was necessary for the parents
because of concerns by the family therapist. The parents also continued to violate the
safety plan that was put in place regarding visitation. Because of this, the children were
emergency removed in early 2014 from the paternal grandparents. When Williams
submitted her last report, Mother was on house arrest and Father was serving weekends
in jail.

On May 15, 2014, Williams left KVC and her supervisor, Megan Drovetta, took
over the case. At that time, the second reintegration plan was over and the State filed its
second motion to terminate. The trial was set for October 2014 in order to give the
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parents more time to work on the second reintegration plan. Drovetta's goal was to have
the children reintegrated with the parents by September 2014.

However, during that summer, Mother and Father continued to minimize their
problems and blame other individuals. They had not started couples counseling. There
was also concern about the parents criminal history combined with their new charges,
which was why the children had not been reintegrated over the summer.

In October 2014, Drovetta advocated for another 90 day extension of the second
reintegration plan. On October 8, 2014, both Mother and Father stipulated to their
unfitness and received a modified reintegration plan. This modified plan looked more at
foreseeability and how to maintain stability. The plan went well from October 2014 to
April 2015. In January 2015, Drovetta advocated for a 60-day extension of the
reintegration plan. The court granted a 90 day extension that began in March 2015.

Drovetta began having concerns about substance abuse by the parents. Father
tested positive for amphetamines on September 19, 2014, and did not provide a
prescription. Drovetta wanted Mother to decrease her methadone dosage because she had
been at 41 milligrams for a long time. Mother never provided proof that she had
decreased her methadone treatments.

In April 2015, there were concerns that Mother and Father were fighting in front
of the children during visits. The arguments upset the oldest child. KVC was concerned
because of the prior domestic violence assessment recommendation and the effect their
fights were having on the children.

Also in April 2015, Mother and Father indicated their van had been stolen. It was
the third time the van had been stolen. KVC asked for the police report for the stolen van
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but never received one. Then, Father had a blackout while driving and crashed their other
car and had to go to KU Medical Center for testing.

The budget was also a concern. Their income was close to their expenses without
the six children. Both parents had fines from their criminal charges. With the children
included, their budget was in the negative.

There continued to be legal issues during the modified reintegration plan. Father
was required to register as an offender, and he did not, which resulted in his probation
being revoked and ultimately he had to spend 30 days in jail. Mother had a positive drug
test and her probation was extended to October 2016. Her drug test was positive for
amphetamine which she stated was from a diet pill she had taken from her friend. Mother
had to serve 2 weekends in jail because of the positive drug test.

At one point during this modified plan, the parents were given weekend passes.
However, these were reduced in June 2015, after there was concern the parents were not
following through on expectations. There were also concerns from some of the foster
mothers that the girls were not always at home with the parents during their weekend
visits. It was discovered that the children were not always wearing seatbelts or sitting in
proper car seats when with the parents. The children were returning to their foster homes
hungry and not having completed the homework that was sent with them over the
weekend. The parents had a difficult time getting the children to their extracurricular
activities. Mother, Father, and the children were supposed to attend the KVC Halloween
party on October 28, 2015, but the parents backed out at the last minute and the children
attended without them.

In June 2015, KVC and other professionals held a framework meeting. There were
several concerns that were discussed at this meeting. First, there was concern that
shoplifting had become a replacement for addictive behaviors regarding drugs for
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Mother. Another concern was the lack of transparency and honesty on the part of the
parents. There was the van issue, issues with maintaining employment, and concerns with
honesty. There was a lack of a transportation plan, a meal and bedtime schedule, an
updated budget, and copies of bills had not been provided.

Drovetta also had other concerns. Mother may have told the girls that "what
happens at the house stays at the house." The girls stated they had been told by their
parents that since Bri.B was the first born they could favor him. There was an issue that
Ma.E.'s bedroom light had been removed because she had forgotten to turn it off. There
were concerns that the girls said they were nervous when they went home. They were
afraid to say things in family counseling and stayed in their rooms most of the weekend
to escape being around the parents so they did not get into trouble.

Through the framework meeting, KVC identified 19 steps for Mother and Father
They needed KVC to follow up with probation officers regarding drug tests and
appointments, talk with their family therapist about their involvement in therapy, talk
about maintaining sobriety, preventing future thefts, obtain a relapse prevention plan,
obtain a firm plan for the two oldest children for summer childcare, obtain information
about Father's blackout, have the parents clean up their home, create permanent sleeping
areas and chore charts, obtain copies of bills and pay stubs, and, among other things,
obtain the police report for the alleged stolen vehicle. A majority of these tasks were
never completed.

There was some progress in the plan. Mother and Father maintained housing and
Mother maintained employment. Mother was in therapy. There continued to be a bond
between the parents and the children. There was a desire to reintegrate all of the children.

However, since the June 2015, meeting, KVC had a difficult time communicating
with Mother and Father. Father was aggressive towards one of the social workers, Brandy
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Perez. There was also continued concern about a lack of accountability. Father also sent
You Tube videos about foster care being corrupt to KVC and to placement. In June,
Mother violated the safety plan that was put in place for visitation. She went to the foster
parent's church and made unauthorized contact with Bri.B.

Mother argues in her brief there was an ex parte communication between the
district court judge and a detective. She alleges the communication biased the judge
against the parents and, therefore, the judge should have recused herself. On October 21,
2013, there was a hearing on the motion to terminate. At the hearing, counsel for Mother
stated, "We do have one issue that's been lingering in this case and that was an e-mail
sent directly to the Court by the detective involving an incident about this case."

The email in question was sent by a detective to the district court judge. It
described the incident where Father was substantiated for physical abuse against Bro.B.
when his leg was broken. The judge shared the email with all the attorneys on the case
the same day the email was sent, August 6, 2013.

Throughout the case, the district court judge made various comments about the
incident where Father was substantiated for physical abuse against Bro.B. At a hearing on
February 24, 2014, the judge asked what bone had been broken on Bro.B. The guardian
ad litem told the judge it was his leg, and a scan had been done and there were additional
fractures at different stages of healing. The judge responded, "Even better. Making me
really feel good now." The judge then set the case over until April.

At the CINC hearing for R.L.B., the district court judge made another comment
about the substantiation for physical abuse against Father. She stated, "You all know I
have a hard time with this. Every time we come back to court I have a fit because of the
substantiation. Never going to be able to explain this to me. I don't understand, I am
concerned." The judge again set the case over for a review hearing to July 22, 2014.
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At the termination hearing, Drovetta testified it was not in the children's best
interest to continue with reintegration efforts. She testified that Mother and Father were
not in a position to properly care for all six children. She stated there was a continued
pattern of an inconsistent and chaotic lifestyle with the parents. They made short progress
and then they made mistakes. It concerned her that the parents were not honest with
professionals when something had happened. She believed the parents would never be
able to reach a level of functionality to care for all six children. She felt the parents'
behavior and lifestyle was not likely to change in the immediate or foreseeable future
because of the patterns the parents fell into of having short term success and then making
a mistake that sent them back to square one. Ultimately she believed it was in the
children's best interests to have the parents' rights terminated and to reach permanency
through adoption.

On February 23, 2016, the district court judge held a hearing where she ruled on
the termination of parental rights trial. The judge characterized the course of the case and
the progress, or lack thereof, of the parents as a "roller coaster." She found Mother and
Father unfit pursuant to K.S.A. 2015 Supp. 38-2269(b)(7) due to "the extensive and
significant and reasonable efforts made by KVC to rehabilitate the family and those
efforts were unsuccessful." While she did acknowledge there had been some glitches with
KVC along the way, those issues never rose to the level of a lack of reasonable efforts
made by KVC.

The district court judge also stated the evidence was clear and convincing that
Mother and Father were unfit pursuant to K.S.A. 2015 Supp. 38-2269(b)(8) "based on
their lack of effort to adjust their circumstances, conduct, and conditions to meet the
needs of the children." She described the parent's behavior as waves of progress, only to
come crashing down and thwarting successful reintegration and permanency for the
children. The judge noted that Father had been substantiated for Bro.B.'s broken leg and
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both parents had a significant criminal history and continued to commit crimes. Both
parents exhibited an overwhelming failure to maintain stability and to be honest. They
lied about unauthorized visits with the children, completing marriage counseling, the
pregnancy and birth of R.L.B., job loss, and the loss of their car. Ultimately, there had
been almost 3 years of reintegration efforts only to have the parents continue to fail.

The district court found that Mother and Father's conditions were unlikely to
change in the foreseeable future due to the exceptional amount of time they had to
reintegrate with the children. There was a clear pattern and history of behavior even
before these cases were filed to lead the court to make this conclusion. The court further
found it was in the best interests of the children for the parental rights of Mother and
Father to be terminated. The children had waited a long time and deserved permanency.
The court granted the termination of their parental rights. Mother timely appealed.

Mother did not move to have the judge recused prior to the trial on the motion to
terminate her parental rights. She argues that her constitutional right to an impartial judge
was violated and therefore she may bring this issue for the first time on appeal. While we
do not generally review constitutional claims raised for the first time on appeal, there are
exceptions. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). The three
recognized exceptions are: "(1) [t]he newly asserted claim involves only a question of
law arising on proved or admitted facts and is determinative of the case; (2) consideration
of the claim is necessary to serve the ends of justice or to prevent the denial of
fundamental rights or (3) the district court is right for the wrong reason." State v. Ortega-
Cadelan, 287 Kan. 157, Syl. ¶ 1, 194 P.3d 1195 (2008.)

Mother argues she has a fundamental right to due process in terminating her right
to parent her children and, therefore, we should consider this for the first time on appeal
because it is necessary to prevent denial of a fundamental right and serves the ends of
justice. The State argues that Mother's failure to argue specifics regarding how the
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exception applies precludes her from having this issue heard. In Ortega-Cadelan, the
Kansas Supreme Court stated the defendant failed to argue any specifics regarding how
the issue satisfied an exception. 287 Kan. at 160. The court then looked at whether it was
able to analyze the merits of the issue based on the record and ultimately found that the
argument presented for the first time on appeal was not properly before the court. 287
Kan. at 160-161.

Here, the record does not demonstrate why the consideration of this claim is
necessary to serve the ends of justice or to prevent the denial of fundamental rights.
Mother argues her right to parent her children is a fundamental right. See In re S.R., 34
Kan. App. 2d 202, 210, 116 P.3d 43 (2005.) Mother also argues that due process requires
the determination of the matter by a fair and impartial judge. In re Murchison, 349 U.S.
133, 136, 75 S. Ct. 623, 99 L. Ed 942 (1955). Because this issue involves a fundamental
right, it falls into the second exception outlined above and may be heard for the first time
on appeal.

Appellate courts have unlimited review over allegations of judicial misconduct.
State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010). See also State v. Moyer, 302
Kan. 892, 920, 360 P.3d 384 (2015) (unlimited review over whether a trial court judge's
recusal is required); State v. Robinson, 293 Kan. 1002, 1032, 270 P.3d 1183 (2012)
(unlimited review in evaluating an affidavit in support of a motion for recusal filed under
K.S.A. 20-311d). The party alleging judicial misconduct bears the burden of establishing
that misconduct occurred and that the misconduct prejudiced the party's substantial
rights. State v. Hudgins, 301 Kan. 629, 637-38, 346 P.3d 1062 (2015).

An appellate court must review the particular facts and circumstances of each case
to determine whether judicial comments, other than jury instructions, rise to the level of
judicial misconduct. If a proper and reasonable interpretation will render the judge's
remark unobjectionable, the remark cannot be found to be prejudicial. State v. Kemble,
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291 Kan. 109, 113, 238 P.3d 251 (2010). The "[m]ere possibility of prejudice from a
judge's remark is not sufficient to overturn a verdict or judgment." State v. Miller, 274
Kan. 113, 118, 49 P.3d 458 (2002); see also Moyer, 302 Kan. at 924-25 (finding no
likelihood of prejudice when judge's son, a police officer, was involved in the case but
stricken from the witness list and the relationship was not mentioned in the trial;
expressing concern about the judge's actions in striking son as witness in order to avoid
recusal).

There are three substantive bases on which a litigant may argue that a judge's
recusal is required: (1) based on the statutory factors set forth in K.S.A. 20-311d(c); (2)
based upon the standards of the Kansas Code of Judicial Conduct; and (3) based on the
Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Moyer, 302 Kan. at 920. See generally Kansas Code of Judicial Conduct, Rule 601B
(2015 Kan. Ct. R. Annot. 745-788) (canons, rules, and comments guiding judges' conduct
effective March 1, 2009).

The United States Supreme Court has characterized a due process claim as the
"constitutional floor" on recusal claims, while the ceiling is set by "common law, statute,
or the professional standards of the bench and bar." Caperton v. A.T. Massey Coal Co.,
Inc., 556 U.S. 868, 889, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (quoting Bracy v.
Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 97 [1997]).

A judge may recuse himself or herself without a specific request from any of the
parties in the proceeding. State v. Meyer, 1 Kan. App. 2d 29, 30, 561 P.2d 877 (1977).
"The purpose of the law is that no judge shall hear and determine a case in which he is
not wholly free, disinterested, impartial, and independent." Tootle v. Berkley, 60 Kan.
446, 56 Pac. 755 (1899.)

15

Under the Kansas Code of Judicial Conduct Rule 601B, Canon 3, Rule 3.1 (2015
Kan. Ct. R. Annot. 767), "[a] judge may engage in extrajudicial activities, except as
prohibited by law or this Code. However, when engaging in extrajudicial activities, a
judge shall not participate in activities that would appear to a reasonable person to
undermine the judge's independence, integrity, or impartiality; or demean the judicial
office." If a judge inadvertently receives an unauthorized ex parte communication that
bears on the substance of the matter "the judge shall make provision promptly to notify
the parties of the substance of the communication and provide the parties with the
opportunity to respond." Kansas Code of Judicial Conduct Rule 601B, Canon 2, Rule
2.9(B) (2015 Kan. Ct. R. Annot. 760).

Judge Sloan was not biased by the ex parte communication she received from the
detective. She met her duty under the Kansas Code of Judicial Conduct. Upon receiving
the email, she notified the parties and forwarded the email that same day. Therefore, she
met her ethical obligation under the Code.

Judge Sloan was not biased against Mother from the ex parte communication she
received. We are to presume that the lower court considered only properly admissible
evidence in reaching its decision, unless the record demonstrates the contrary. State v.
Gordon, 219 Kan. 643, Syl. ¶ 11, 549 P.2d 886 (1976.) There is no evidence from the
record that Judge Sloan relied on the email when making her determination that Mother's
parental rights be terminated. While the judge did include evidence of Bro.B's broken leg
when making her ruling as to why there was clear and convincing evidence that the
parents were unfit, she included multiple other incidents that occurred over the course of
the case.

It is clear that Judge Sloan was not biased and, therefore, did not need to sua
sponte recuse herself, because she allowed the case to be continued over the period of
almost 3 years. After the first reintegration plan, Judge Sloan gave the parents a second
16

chance at reintegration. When they did not succeed at that plan, Judge Sloan granted the
parents a modified reintegration plan. For all three of the plans, Judge Sloan granted
extensions of time for the parents to continue reintegration efforts. If Judge Sloan was
biased against Mother, she likely would not have allowed the case to continue from
August 6, 2013, when she received the email from the detective, until the termination
hearing more than 2 years later on November 17, 2015. She continued to work with the
parents and allow them extensions on their reintegration efforts.

Because Mother has not shown that the alleged misconduct prejudiced her
substantial rights, Judge Sloan was not required to sua sponte recuse herself and Mother's
due process rights were not violated.

Mother next contends she was denied due process based on ineffective
assistance of counsel.

A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law. When the district court conducts a full evidentiary hearing on such claims, the
appellate courts determine whether the district court's findings are supported by
substantial competent evidence and determine whether the factual findings support the
court's legal conclusion. The appellate courts apply a de novo standard to the district
court's conclusions of law. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

To prevail on a claim of ineffective assistance of counsel, Mother must show "'(1)
counsel's representation fell below an objective standard of reasonableness, considering
all the circumstances, and (2) but for counsel's deficient performance there is a reasonable
probability that the outcome of the proceeding would have been more favorable to
[Mother].'" Rowland v. State, 289 Kan. 1076, 1083, 219 P.3d 1212 (2009).

17

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. The reviewing court must strongly presume that counsel's conduct fell
within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965,
970, 318 P.3d 987 (2014). To establish prejudice, the defendant must show a reasonable
probability that, but for counsel's deficient performance, the outcome of the proceeding
would have been different, with a reasonable probability meaning a probability sufficient
to undermine confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d
828 (2015).

As a general rule, an appellate court will not consider an allegation of ineffective
assistance of counsel raised for the first time on appeal. State v. Dull, 298 Kan. 832, 839,
317 P.3d 104 (2014). "[G]enerally the factual aspects of a claim of ineffective assistance
of counsel require that the matter be resolved through a K.S.A. 60-1507 motion or
through a request to remand the issue to the district court for an evidentiary hearing under
State v. VanCleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986) [Citation omitted]." State
v. Galaviz, 296 Kan. 168, 192, 291 P.3d 62 (2012).

An appellate court considers a claim of ineffective assistance of counsel for the
first time on appeal only when there are no factual issues and the two-prong ineffective
assistance of counsel test can be applied as a matter of law based upon the appellate
record. Wimbley v. State, 292 Kan. 796, 807, 275 P.3d 35 (2011). The Kansas Supreme
Court has "rarely found an exception to the general rule that an ineffective assistance of
counsel claim should be first considered by the district court." Trotter v. State, 288 Kan.
112, 128, 200 P.3d 1236 (2009.)

Mother did not allege ineffective assistance of counsel against her attorney, Tobi
Bitner, at any time in the district court. She argues that the newly asserted claim involves
only a question of law that arises on proved or admitted facts. Because she argues there is
18

no factual issue, she states we may consider this issue where the record on appeal is
sufficient to examine the claims of error. However, if we find the record does not provide
sufficient grounds for review, Mother requests the matter be remanded for a hearing
under State v. VanCleave, 239 Kan. 117. Therefore, we must analyze the ineffective
assistance of counsel claim to determine whether a VanCleave remand is necessary.

The State contends that Mother simply argues one of the exceptions applies and
does not specify how the issue satisfies the exception. The State further argues we should
not guess why Mother believes the record is sufficient to consider the ineffective
assistance of counsel claim, and she fails to explain why we should not consider the
issue. However, the issue must be analyzed regardless due to the possibility of a remand
pursuant to VanCleave. 239 Kan. at 120.

The State disagrees with Mother, who argues that Strickland v. Washington
applies to this case. Mother argues she was denied effective assistance of counsel which
deprived her of due process. However, Strickland is based on the right to counsel in a
criminal proceeding under the Sixth Amendment to the United States Constitution,
whereas here the right to counsel in a termination of parental rights proceeding is based
on the Due Process Clause. Lassiter v. Department of Social Services of Durham County,
N.C., 452 U.S. 18, 31-33, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981.)

Mother argues in her brief that Bitner was ineffective for various reasons. These
claims will be looked at individually.

First, Mother argues that Bitner was ineffective because she did not file a motion
to recuse the judge once she was aware of the ex parte communication and after being
present for the alleged bias demonstrated by the judge. As analyzed above, the ex parte
communication received by Judge Sloan and the comments made at later hearings did not
deny Mother due process. Further, there were various parties present during these
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hearings including the State, Father, and his attorney, Mother, and her attorney, the
guardian ad litem, and M.E.'s attorney. None of them objected to the statements made by
the judge and none of them asked the judge to recuse herself.

There is also no evidence that the proceeding would have turned out differently if
Bitner had filed a motion for the judge to recuse herself. There was clear and convincing
evidence to find that Mother is unfit and her actions were unlikely to change in the
foreseeable future. There was no bias on part of the judge and there is a high probability
that the outcome of the proceeding would have been the same. See Sprague, 303 Kan. at
426.

Second, Mother argues that Bitner failed to defend various objections. First, 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." In re J.D.C., 284
Kan. 155, 166, 159 P.3d 974 (2007). Therefore, it is questionable whether the failure to
defend a civil objection can be a due process violation. 284 Kan. at 166. Second, we are
to strongly presume that counsel's conduct fell within the broad range of reasonable
professional assistance. Kelly, 298 Kan. at 970. In addition, when the district court
sustained an objection to hearsay, Bitner would rephrase the question in order to get the
information into the record. For example, the State objected to hearsay when Bitner asked
about marriage counseling services. She then rephrased the question after the objection
was sustained. This was not a due process violation and Bitner was not ineffective when
it came to defending objections in court.

Next, Mother argues that Bitner failed to remind the district court that anything
can be used to refresh a witness' recollection as long as the witness has an independent
recollection of the matter. The court was concerned that Mother was using notes during
her testimony because the court did not know who drafted the notes. The court checked to
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make sure the notes were drafted by Mother and then allowed her to use them. This was
not a violation of Mother's due process rights because she was allowed to use the notes.

Mother also argues that Bitner should have challenged the district court when it
did not allow her to attend her church because the State had violated her rights under the
First Amendment to the United States Constitution. Mother was not forbidden to attend
her church, she was just asked to attend a different service from her children because of
the safety plan that was in place.

In addition, Mother argues that Bitner did not present evidence of the State's
failure to rehabilitate. However, during cross examination, Bitner attacked the quality of
rehabilitative work and programs provided by KVC.

Mother also argues that Bitner failed to object to the district court's granting
authority to KVC to place the children back in her home. Mother argues that KVC should
have filed a motion asking the court to allow it to place the children with the parents. This
could not have prejudiced Mother because it allowed KVC to place the children back in
her home.

Here, even if VanCleave does apply, it does not require a remand in this case. The
claims of ineffective assistance of counsel that Mother has against Bitner are not
violations of Mother's due process rights. In addition, the allegations against Bitner do
not rise to the level of ineffective assistance of counsel, especially considering we are to
strongly presume that counsel's conduct fell within the broad range of reasonable
professional assistance. Kelly, 298 Kan. at 970. Therefore, the district court's ruling is
affirmed.

Mother next argues the district court's finding that her unfitness was not likely to
change in the foreseeable future was not supported by the record.
21


The Kansas Legislature has specified that the State must prove "by clear and
convincing evidence that the child is a child in need of care." K.S.A. 2015 Supp. 38-
2250. In addition to child in need of care adjudications, the clear and convincing evidence
standard of proof applies to all termination of parental rights cases. K.S.A. 2015 Supp.
38-2269(a). Clear and convincing evidence is that "which is sufficient to establish that
the truth of the facts asserted is 'highly probable.'" In re B.D.-Y., 286 Kan. 686, 696, 187
P.3d 594 (2008).

K.S.A. 2015 Supp. 38-2269(a) states:

"When the child has been adjudicated to be a child in need of care, the court may
terminate parental rights or appoint a permanent custodian when the court finds by clear
and convincing evidence that the parent is unfit by reason of conduct or condition which
renders the parent unable to care properly for a child and the conduct or condition is
unlikely to change in the foreseeable future."

In making this determination, an appellate court does not weigh conflicting evidence,
pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286
Kan. at 705.

When determining how to define "foreseeable future," the court examines the term
from the perspective of a child. In re M.H., 50 Kan. App. 2d 1162, 1170-71, 337 P.3d 711
(2014). Children and adults have different perceptions of time, and a child has the right to
permanency within a time frame that is reasonable to them. 50 Kan. App. 2d at 1170-71.
The district court may draw inferences from the past conduct of a parent to determine that
the parent's conduct will not likely change in the foreseeable future. In re Z.C., No.
97,032, 2007 WL 1310097, at *3 (Kan. App. 2007) (unpublished opinion).

22

Mother argues that she and Father had been successful with Williams as case
manager and they were about to regain custody of their children. Mother argues that
when Perez became their case worker, Perez did not effectively communicate tasks to her
and contributed to her confusion about what was expected from her. Essentially, she
argues that the deteriorating relationship with KVC and its failure to initially provide
services made her unable to regain progress.

There was ample evidence in the record to support the district court's finding that
Mother's unfitness as a parent was unlikely to change in the foreseeable future. Mother's
interaction with DCF began in 2004 when Ma.E. was found wandering the streets alone.
A second case with DCF was reported in 2009, when Me.E was physically abused by
Father. The third case was in November 2012, when it was alleged Mother was using
opiates while pregnant with Bro.B. The fourth case was in December 2012, for lack of
supervision when it was reported that the four children at the time had been left home
alone on at least two occasions. The fifth case occurred in April 2013, when Mother and
Father failed to pick the children up from school and Bro.B. had a bad rash.

Mother has continued to have trouble with the law throughout the case period. She
had criminal cases ranging from 2000 to 2014, including the theft charge where the
children were present. A list compiled in 2012 showed that Mother had 24 police
incidents since 2003. Both Mother and Father had served time in jail during this case. In
addition, both parents demonstrated throughout the case that drugs were an ongoing
problem.

The parents received two reintegration plans for this case as well as a modified
reintegration plan. During the first reintegration plan, Father was substantiated for
physical abuse for breaking Bro.B.'s femur. At the end of the first plan, the parents were
granted a second reintegration plan. While there was progress during the second plan,
Mother was still on methadone and hid her pregnancy with R.L.B. from everyone on the
23

case. There was a continued concern with criminal charges, as Mother picked up two new
charges. There was concern with unauthorized contact with the children and
transportation troubles.

In the spring of 2014, Drovetta hoped the children could return home to the
parents. However, during the summer additional problems arose. Mother and Father
continued to minimize their actions and blame others. The children were removed from
their grandparent's placement because of unauthorized contact from the parents. Mother
did not decrease her methadone use and Father tested positive for amphetamines.

On October 8, 2014, the parents stipulated to their unfitness and received a
modified reintegration plan. For several months, the plan went well, and KVC advocated
for an extension of its plan and longer visits. However, this progress halted in April 2015,
when the parents fought in front of the children during visits and upset the oldest child.
The budget was also a problem because Mother and Father only had enough funds to
support themselves but not their six children. Their van was also allegedly stolen, but a
police report was never provided to KVC. In addition. Father had a blackout while
driving and crashed their other car.

Both Mother and Father had continued legal issues during the modified
reintegration plan. Father was required to register as an offender, which he did not. His
probation was revoked and he had to spend 30 days in jail. Mother had a positive drug
test for amphetamine, which she stated was from a diet pill she had taken from her friend,
and her probation was extended to October 2016. She had to serve two weekends in jail
because of the positive drug test.

One of the placements reported to KVC that the girls spent time with their friends
on weekend visits with Mother and Father. The children were also being returned with
empty stomachs and the parents did not take them to their extracurricular activities.
24


There were concerns about missed drug tests and honesty with Mother and Father.
Drovetta also had concerns about long-term stability. In addition, there were concerns
about employment, transportation, meal and bedtime schedules, copies of bills, bedroom
space, and ongoing supervision issues.

After nearly 3 years of reintegration plans, the parents never progressed to a point
where the children could be returned home. When progress was made, the parents would
make a mistake and fall back. Drovetta testified it was not in the children's best interest to
continue moving forward with reintegration. The parents were not in a position to
properly care for all six children and it was in the children's best interests to have the
parents' rights terminated and reach permanency through adoption.

Looking at Mother's pattern of conduct during the nearly 3 years of this case, it
was clear her conduct would not change in the foreseeable future. See In re Z.C., No.
97,032, at *3. There is clear and convincing evidence that her behavior will not change in
the foreseeable future, and the six children are children in need of care. Therefore, the
district court's ruling is affirmed.

Affirmed.