In re X.H.

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NOT DESIGNATED FOR PUBLICATION

No. 112,898

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of
X.H., Year of Birth: 2008, a Male,
and
W.H., Year of Birth: 2011, a Female.


MEMORANDUM OPINION

Appeal from Montgomery District Court; FREDERICK W. CULLINS and GARY R. HOUSE, judges.
Opinion filed September 11, 2015. Affirmed.

Philip J. Bernhart, of Coffeyville, for appellant natural father.

Daniel M. Reynolds, of Emert, Chubb & Gettler, LLC, of Independence, for guardian ad litem,
and Daylene Walls, assistant county attorney, for appellee.

Before GREEN, P.J., HILL, J., and TIMOTHY G. LAHEY, District Judge, assigned.

Per Curiam: R.H. (father) is the natural father of two minor children: X.H., born
in 2008, and W.H., born in 2011. Later the trial court ruled that clear and convincing
evidence existed that father was unfit to parent X.H. and W.H. Moreover, the trial court
determined that father was unlikely to change in the foreseeable future. The trial court
concluded it was in the best interests of the children to terminate father's parental rights.
On appeal, father contends that (1) the trial court erred in denying his motion for change
of judge; (2) the trial court erred in concluding that father was unfit and that his parental
rights should be terminated; and (3) the trial court erred by approving an adoption plan
which excluded the family of the father as a resource. Finding no merit in these
contentions, we affirm.
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The State filed a child in need of care petition for X.H. in January 2011. The
following factual allegations were included in the petition:

• On January 5, 2011, a law enforcement officer was sent to a residence in
Coffeyville, Kansas, concerning four minor children. The officer was told
that the natural mother was suffering a mental breakdown and was unable
to care for the children. The natural mother was hospitalized. The officer
placed the minor children in protective custody.

• At the time of the petition, the natural mother was a patient at Stormont
Vail West Behavioral Health Services in Topeka, Kansas.

• The family had prior contacts with law enforcement, which included a
domestic dispute incident between the natural mother and father. On
January 28, 2010, following the domestic dispute, father was arrested and
the children were released to their natural mother.

The trial court found that an emergency existed, which threatened the safety of the
children. The trial court further found that remaining in the family's home was contrary to
the welfare of the children and immediate placement was in the best interests of the
children. X.H. and the three other children were placed in state custody.

The State filed a child in need of care petition for W.H. in August 2012. The
following factual allegations were included in the petition:

• On August 13, 2012, father was driving when a law enforcement officer saw that
W.H. was not properly restrained and was standing in the back seat of a moving
vehicle. When the officer stopped the vehicle, father was unable to provide a
driver's license; his license had been revoked because he was a habitual violator.
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The officer smelled the odor of alcohol emitting from father. Father initially
refused to provide a breath sample; 20 minutes later he provided a test which
showed a BAC of .067. The officer located a freshly opened can of beer under the
passenger seat. The officer also located drug paraphernalia in W.H.'s diaper bag.
Father was arrested; W.H. was placed in protective custody.

• W.H. had a sibling and half siblings; they had a history with the Department for
Children and Families. The minor children were already adjudicated children in
need of care. R.H. was the father of one of the minor children.

• Father had an extensive traffic violation and criminal history. At the time of the
petition, father was facing violation of the following offenses: driving while
habitual violator; possession of drug paraphernalia; aggravated endangering a
child; transporting an open container; failure to use child restraint; refusal of PBT;
and obstruction. Father was incarcerated in the Montgomery County Department
of Corrections.

The trial court found that W.H. was likely to sustain harm if not immediately
removed from the home, remaining in the home or returning to the home would be
contrary to the welfare of the child, and immediate placement was in the best interests of
the child. W.H. was placed in state custody.

On December 28, 2013, father moved to change the judge in this case. In his
supporting affidavit, father argued that he would not receive a fair hearing because Judge
Frederick W. Cullins had already decided to terminate his parental rights. Father argued
that the facts set forth in his affidavit "have resulted in a steam-roller approach to the
termination of [father's] parental rights." Under K.S.A. 20-311d, this matter was assigned
to Judge Gary R. House for a ruling. Judge House determined that the affidavit was not
legally sufficient to question the impartiality of Judge Cullins; Judge House denied the
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motion for change of judge. The case proceeded to a hearing on the termination of
parental rights on May 21, 2014.

A KVC Behavorial Healthcare, Inc., case manager testified there were nine case
plans in this case and father appeared at only three of the meetings. When X.H. went into
custody, father told the case manager he did not want to be involved. When W.H. went
into custody, father refused to work any of the case plans. The first time father indicated
he wanted to work on the case plans to reintegrate with his children was on May 9, 2014.
The case manager further testified that father failed to maintain contact with his children;
he exercised three supervised visits in 40 months because he was in jail. According to the
case manager, father was not capable of caring for and raising his children.

Father testified that his attorney told him to let the natural mother work the case
plan and "to see how that went and not really stick [father] in there right away." He also
stated he was incarcerated for 4 months in 2012 and was not working the case plan.
When he was released from incarceration, he contacted TFI Family Services and told
them he wanted to work the program. He began taking parenting classes, but he was only
out of jail for a month and a half before he was incarcerated again. This time he was
incarcerated for 10 months.

Father testified that he contacted KVC when he was released, but no one ever set
up a case plan with him. Father said his three visits with X.H. and W.H. "went great." At
the time of the hearing, father was not incarcerated, he was employed, and he was paying
child support. Father recognized he owed a large amount of back child support; he was
paying $300 per month toward current child support and $100 per month toward the
delinquent amount.

The trial court determined that father did not rebut the statutory presumption of
unfitness provided by K.S.A. 2014 Supp. 38-2271. The trial court held that father
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"substantially neglected or willfully refused to carry out a reasonable plan approved by
the Court towards reintegration . . . . And there's a substantial probability that [he] will
not carry out such plan in the future." The trial court further found by clear and
convincing evidence that father was unfit to properly care for X.H. and W.H., and the
conditions of unfitness were not likely to change in the foreseeable future. The trial court
concluded that it was in the best interests of X.H. and W.H. to terminate father's parental
rights.

Did the Trial Court Err by Denying the Motion for Change of Judge?

Father argues that the trial court erred by finding that the affidavit in support of the
motion did not form a legally sufficient basis to challenge the impartiality of Judge
Cullins. He claims that the affidavit alleged the trial court showed prejudice and "was
pushing the case toward severance." He further contends that a different judge should
have presided over the termination hearing.

In his supporting affidavit, father identified five instances in which Judge Cullins
allegedly demonstrated a personal bias or prejudice. Father's generally argued concerns
fell under K.S.A. 20-311d(c)(5) which provides a party may have grounds to support a
motion for a change of judge when "[t]he party or the party's attorney filing the affidavit
has cause to believe and does believe that on account of the personal bias, prejudice or
interest of the judge such party cannot obtain a fair and impartial trial or fair and
impartial enforcement of post-judgment remedies."

Under K.S.A. 20-311d(b), the motion and affidavit was presented to district court
Chief Judge Roger L. Gossard. Because of a conflict of interest, this matter was referred
to Judge House to determine the legal sufficiency of the affidavit. Before making his
decision, Judge House examined the motion and the supporting affidavit; transcripts of
various hearings; court files, reports, and case plans; and applicable state law. Judge
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House found the facts alleged in the affidavit to be legally insufficient to question the
impartiality of Judge Cullins.

Our Supreme Court has developed a two-part test for analyzing an allegation of
judicial bias:

"First, the defendant must show that the trial judge has a duty to recuse. Second, the
defendant must show actual bias or prejudice that warrants setting aside the conviction or
sentence. But bias or prejudice will be presumed when, based on objective standards, the
probability of actual bias is too high to be constitutionally tolerable." State v. Robinson,
293 Kan. 1002, 1032, 270 P.3d 1183 (2012).

"When reviewing the legal sufficiency of an affidavit in support of a motion for a
change of judge, we have unlimited review." Robinson, 293 Kan. at 1032. The appellate
court "must decide the sufficiency of the affidavit and not the truth of the facts alleged."
293 Kan. at 1032.

Applying the first prong, a judge has a duty to recuse from any case "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." Supreme Court Rule 601B, Kansas Code of Judicial Conduct, Canon 2, Rule
2.11(A)(1) (2014 Kan. Ct. R. Annot. 767); see Robinson, 293 Kan. at 1032.

"In determining the sufficiency of an affidavit filed pursuant to K.S.A. 20–311d,"
this court examines whether

"'[t]he affidavit . . . state[s] facts and reasons, pertaining to the party or his attorney
which, if true, give fair support for a well-grounded belief he will not obtain a fair trial.
[Citations omitted.] The question of the sufficiency of the affidavit is one of law for the
court to determine but "[p]revious adverse rulings of a trial judge, although numerous and
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erroneous, where they are subject to review, are not ordinarily and alone sufficient to
show such bias or prejudice as would disqualify him as a judge."' [Citation omitted.]

"'The standard to be applied to a charge of lack of impartiality is:

"whether the charge of lack of impartiality is grounded in facts that would 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."' [Citations
omitted.]" Smith v. Printup, 262 Kan. 587, 606-07, 938 P.2d 1261 (1997).

In reaching his determination, Judge House found:

"Judge Cullins has made his decision based upon the more than two years [sic] history of
this case, and what he believes is in the best interests of the children after weighing the
recommendation of Kaw Valley and the G.A.L. against the recommendations of the State
and the parents' attorneys, and the records of the parents failing to meet case plan goals.
This Court does not find his actions to be bias or prejudice against [father]. At the end of
the day it is for the Judge to make this decision."

In his affidavit, father alleged:

"The judge in these causes was the judge in a criminal case in Montgomery County
involving [father], in which [father] was convicted and sentenced by this judge to
incarceration, and although he may normally be presumed to be able set [sic] aside his
ostensible belief or position that [father] is a criminal who deserves to be punished, and
afford [father] a fair trial in these causes, such presumption has the appearance of not
applying here when combined with the facts set forth above all of which have resulted in
a steam-roller approach to the termination of [father's] parental rights."

Father's general complaints stem from previous adverse rulings such as not
accepting father's adoption plan, which was agreed upon before the termination hearing,
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and Judge Cullins' involvement in father's criminal case. Nothing in the record indicates
Judge Cullins demonstrated a personal bias or prejudice against father. Additionally,
father has failed to show Judge Cullins had a duty to disqualify himself. As a result,
father has failed to meet the first prong of the test provided in Robinson, and this court
need not address the second prong. See Robinson, 293 Kan. at 1035.

The trial court properly denied father's motion for a change of judge.

Did the Trial Court Err by Finding Father was Unfit and by Terminating His Parental
Rights?

Father argues that the trial court's finding of unfitness was not supported by clear
and convincing evidence. He also contends that the trial court erred by terminating his
parental rights. We first set forth our standard of review.

When reviewing the trial court's decision to terminate parental rights, this court
should "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," that the parent's rights should be
terminated. 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 evidence, pass on the
credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.

If a child is adjudicated a child in need of care, parental rights may be terminated
"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." K.S.A. 2014
Supp. 38-2269(a). K.S.A. 2014 Supp. 38-2201 et seq., the Revised Kansas Code for Care
of Children, lists a number of nonexclusive factors the trial court must consider in
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determining a parent's unfitness. K.S.A. 2014 Supp. 38-2269(b) and (c). Any one of the
factors may, but does not necessarily, establish grounds for terminating a parent's rights.
K.S.A. 2014 Supp. 38-2269(f). The trial court is not limited only to the statutory factors
in making a determination of unfitness. K.S.A. 2014 Supp. 38-2269(b).

In the present case, the trial court ruled that the father was unfit based on the
following statutory factors:

• Father failed to adjust his circumstances, satisfying K.S.A. 2014 Supp. 38-
2269(b)(8).
• At the time of the hearing X.H. had been in out-of-home placement for 3
years and 4 months. W.H. had been in out-of-home placement for 1 year
and 9 months. The children had been in an extended out-of-home
placement for more than 1 year, and the additional factors listed below
apply, thus satisfying K.S.A. 2014 Supp. 38-2269(b)(9).
• Father failed to maintain a home, satisfying K.S.A. 2014 Supp. 38-
2269(c)(1).
• Father failed to maintain regular visitation or contact with the children; he
exercised only three visitations and was incarcerated 451 days during the
pendency of these cases, satisfying K.S.A. 2014 Supp. 38-2269(c)(2).
• Father failed to carry out a reasonable plan for reintegration and attended
only three out of nine case plans, satisfying K.S.A. 2014 Supp. 38-
2269(c)(3).
• Father failed to provide a reasonable portion of the cost of substitute care of
his children, satisfying K.S.A. 2014 Supp. 38-2269(c)(4).

First, this court must determine whether the trial court's findings of unfitness were
supported by clear and convincing evidence. As previously discussed, the trial court
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heard evidence regarding father's unwillingness to participate in the case plans. The trial
court also heard testimony and reviewed reports regarding father's lack of contact with
his children, his periods of incarceration, and his arrest involving W.H. The trial court
took judicial notice of all of the court proceedings, the social history file in this matter,
the civil files pertaining to child support, and father's criminal history. The court heard
additional testimony that X.H. had been in custody for approximately 3 years and 4
months, and W.H. had been in custody for approximately 1 year and 9 months.

K.S.A. 2014 Supp. 38-2271(a) states:

"It is presumed in the manner provided in K.S.A. 60-414, and amendments
thereto, that a parent is unfit by reason of conduct or condition which renders the parent
unable to fully care for a child, if the state establishes, by clear and convincing evidence,
that:
. . . .
(5) the child has been in an out-of-home placement, under court order for a
cumulative total period of one year or longer and the parent has substantially neglected or
willfully refused to carry out a reasonable plan, approved by the court, directed toward
reintegration of the child into the parental home;
(6)(A) the child has been in an out-of-home placement, under court order for a
cumulative total period of two years or longer; (B) the parent has failed to carry out a
reasonable plan, approved by the court, directed toward reintegration of the child into the
parental home; and (C) there is a substantial probability that the parent will not carry out
such plan in the near future."

K.S.A. 2014 Supp. 38-2271(b) provides:

"The burden of proof is on the parent to rebut the presumption of unfitness by a
preponderance of the evidence. In the absence of proof that the parent is presently fit and
able to care for the child or that the parent will be fit and able to care for the child in the
foreseeable future, the court shall terminate parental rights in proceedings pursuant to
K.S.A. 2014 Supp. 38-2266 et seq., and amendments thereto."
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The trial court made the requisite findings provided by K.S.A. 2014 Supp. 38-
2271(a)(5)-(6). Father failed to overcome this presumption, and the trial court terminated
his parental rights.

Based on the aforementioned facts, clear and convincing evidence supported the
trial court's determination that father was unfit by reason of conduct or condition, which
rendered him unfit to care properly for his children, and his conduct or condition was
unlikely to change in the foreseeable future.

This court's next step is to determine whether clear and convincing evidence
supported the trial court's determination that father's behavior was unlikely to change in
the foreseeable future. See K.S.A. 2014 Supp. 38-2269(a). The term "foreseeable future"
is measured from the child's perspective and takes into account a child's perception of
time. In re S.D., 41 Kan. App. 2d 780, 790, 204 P.3d 1182 (2009). This court has
considered periods of time as short as 7 months to be the foreseeable future from a child's
perspective. 41 Kan. App. 2d at 790. A court may predict a parent's future unfitness based
on his or her past history. In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982).

The trial court heard testimony regarding the significant amount of time the
children had spent in state custody. Father continuously failed to participate in the case
plans. The trial court may predict father's future unfitness based on his history. Clear and
convincing evidence supported the trial court's determination that father's behavior was
unlikely to change in the foreseeable future.

The last consideration is whether the trial court correctly determined that
terminating father's parental rights was in X.H.'s and W.H.'s best interests. K.S.A. 2014
Supp. 38-2269(g)(1) provides that even after a finding of unfitness, the trial court must
determine whether the termination of parental rights is in the best interests of the
children.
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Because it hears the evidence directly, the trial court is in the best position to
determine the best interests of the child, and an appellate court cannot overturn it without
finding an abuse of discretion. In re K.P., 44 Kan. App. 2d 316, 322, 235 P.3d 1255, rev.
denied October 7, 2010. An abuse of discretion occurs when no reasonable person would
agree with the trial court or when the court bases its decision on an error of fact or an
error of law. In re R.S., 50 Kan. App. 2d 1105, Sy. ¶ 2, 336 P.3d 903 (2014).

The trial court held that father was not likely to change his conduct or condition in
the foreseeable future; father was unwilling or unable to change his circumstances, and he
demonstrated this by failing to work any case plans or maintain regular contact or
communication with his children. The trial court determined by clear and convincing
evidence that father could not meet the physical, emotional, or mental needs of the
children. The trial court determined that reintegration with father was no longer a viable
alternative and it was in the best interests of the children to terminate father's parental
rights.

The trial court's decision to rule father unfit was supported by clear and
convincing evidence, and the trial court did not abuse its discretion by terminating his
parental rights.

Did the Trial Court Err by Approving an Adoption Plan Which Excluded the Family of
Father as a Resource?

On appeal, father argues that he should have been allowed to present testimony at
the termination hearing regarding the future placement of his children. Father's argument
is set forth in a single paragraph. He abruptly concluded with what seemed to be an
afterthought—that his due process rights were violated.

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Father fails to support this claim with pertinent authority or show why it is sound
despite a lack of supporting authority. This is akin to failing to brief the issue. State v.
Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed by the appellant is
deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885,
889, 259 P.3d 676 (2011). As a result, this court need not address this issue.

Affirmed.