In re Z.E.

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NOT DESIGNATED FOR PUBLICATION

No. 119,633

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of Z.E.,
A Minor Child.


MEMORANDUM OPINION

Appeal from Miami District Court; AMY L. HARTH, judge. Opinion filed February 22, 2019.
Affirmed.

Geri L. Hartley, of Nicholson, Dasenbrock & Hartley, LC, of Paola, for appellant natural mother.

Rebecca S. Craig, assistant county attorney, Elizabeth Sweeney-Reeder, county attorney, and
Steven M. Ellis, guardian ad litem, for appellee.

Before BUSER, P.J., POWELL, J., and STUTZMAN, S.J.

PER CURIAM: After an evidentiary hearing on a motion by the State at the end of a
two-year child in need of care case, the Miami County District Court terminated L.E.'s
(Mother) parental rights to Z.E. Mother appealed and claims error by the district court in
three areas. We find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

Z.E. is a female child, born to Mother in 2010. In March 2016, the Osawatomie
office of the Department for Children and Families (DCF) was assigned a report that
Sean C. committed acts of domestic violence against Mother, with whom he was in a
relationship. Interviewed by a DCF child protection worker on March 29, 2016, Z.E. told
of an incident when she and her mother were in their car. Z.E. said Sean pulled on the
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glass part of one of their car's windows until it broke and "glass went everywhere." She
told the worker she had been afraid Sean would kill Mother. Z.E. said she and Mother
were not supposed to be around Sean and had to lie to her "aunt" any time they spent time
with him.

In a later interview with DCF workers, Mother confirmed the reported events of
the domestic violence incident, which included Sean breaking the car window and pulling
her hair, and an attempt by Z.E. to intervene that led to Sean pushing Z.E. into the back
seat of the car. Mother said she loved Sean and "believe[d] in him" and did not think he
should be punished for having mental illness, meaning she did not want to end her
relationship with him just because he heard and saw things that were not really there and
lost his temper for no apparent reason.

The March 2016 contact was not the first between the family and DCF. In June
2014, DCF investigated a concern that Mother had taught Z.E. to tell their neighbors to
pay her $10 per day or she would kill them. And in December 2015, DCF investigated a
report Mother and Z.E. were told to leave a homeless shelter where they were living
because Mother sneaked her cat into the facility.

DCF received a further report in February 2016, when Sean and Z.E. were at a
Taco Bell in Olathe. The Olathe Police Department had investigated a report that Sean
appeared to be under the influence and attempted to drive away from the Taco Bell with
Z.E. in the car. A DCF social worker interviewed Z.E. about that incident. She told the
social worker that Sean had taken her to Taco Bell, but then she did not know where he
was. Z.E. said because she sat at a table for a long time and did not know where Sean
was, she became scared. She went to the counter to ask whether they knew where he was.
Z.E. said when Sean reappeared he had trouble walking and could not find his wallet. She
said the police came and she had to sit for a long time in the police van. On March 23,
2016, the DCF social worker did a follow-up interview with Mother concerning the
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incident. Mother told her she thought Sean was a "paranoid schizophrenic" and a
medication change was the reason for his behavior. She said she had been called by
police and went to the Taco Bell. She picked up both Z.E. and Sean. She also reported
she had ended her relationship with Sean to focus on caring for Z.E. Mother admitted
being asked to leave two homeless shelters—because of the cat and because of her
relationship with Sean—and said she was living temporarily with her cousin, Kelli C.
Mother told the social worker she had been diagnosed with bipolar disorder but did not
take medication because of the way it made her feel. The worker provided her with
resources for counseling and medication evaluation, which Mother said she would utilize.

Kelli, whom Z.E. referred to as "aunt," reported she had let Mother and Z.E. live
with her after Mother was ordered out of a second homeless shelter with the sole
stipulation that Mother discontinue her relationship with Sean because of their history of
violence. Kelli reported continuing to try to help Mother in spite of violations of the
condition placed on her. After the incident with Sean on March 27, however, she asked
Mother to leave her home.

On April 18, 2016, the State filed a petition alleging Z.E. was a child in need of
care (CINC), based on concerns for Z.E.'s safety because of Mother's continued
relationship with Sean, as well as the failure of efforts to assist Mother through the
homeless shelters and mental health resources that were offered but not used. The district
court issued an order placing Z.E. in DCF's temporary custody and directing that Sean
have no contact with Z.E. Following an evidentiary adjudication hearing, the district
court found Z.E. was a CINC.

A case plan was developed with a number of tasks for Mother, including obtaining
and maintaining appropriate housing and gaining a stable income and transportation, with
proof of required insurance. Mother further was tasked with: completing budgets as
requested by her case workers at KVC; engaging in mental health services and domestic
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violence support groups or classes; obtaining a psychological evaluation and parenting
evaluation; submitting to drug screens; and having no contact with Sean. Chauncey
Hester, a permanency case manager for KVC, tracked Mother's progress with the case
plan and prepared court reports.

In the two years between the filing of the State's petition and the hearing on the
State's motion to terminate parental rights, Mother cycled through a number of housing
situations. As of September 22, 2016, when KVC (DCF's contractor) filed a report with
the district court, Mother had housing, with Catholic Charities paying her rent through
October 1, 2016. Unfortunately, in early 2017 a fire caused Mother to lose her place to
live, and for the next several months, she was homeless. She lived in her car, with
friends, an Oxford House, and SAFEHOME, a domestic violence shelter. After losing her
spot at SAFEHOME, Mother stayed in a friend's garage. She then got a job and a room to
live in at a Rodeway Inn but lost that job. After a brief stay with her aunt, she moved into
a church, where she continued to live at the time of the termination hearing. Not long
before the termination hearing, Mother was approved for a housing voucher and needed
to find a place to live that would accept the voucher. The voucher was worth $1200 per
month, to be used for up to a three-bedroom residence.

Mother had a similar experience at maintaining stable employment. She was fired
from five jobs during the pendency of the case. At the time of the termination hearing
Mother was employed at a job where she had worked for two to three months. Over the
course of the case, Mother only provided Hester with pay stubs twice, first around
September 2017 and then two weeks before the termination hearing. As a result, she was
unable to complete budgets with Hester to monitor and assist with financial stability.

Transportation also proved to be a persistent issue for Mother. As of September
22, 2016, Mother had a car and had provided proof of insurance to KVC. She also,
however, had a second car which did not have current registration and was uninsured.
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The November 2016 and January 2017 KVC court reports stated that Mother nonetheless
drove that uninsured car. Mother committed a traffic offense and missed her court date,
which led to her spending time in jail. Her car also was impounded. Mother was
incarcerated again in October 2017 for driving on a suspended license. The transportation
issues occasionally caused Mother to be late to visits with Z.E. Mother never provided
Hester with documentation that she acquired insurance or had her driver's license
reinstated.

The substance abuse case plan goal also proved to be problematic for Mother. Up
to mid-September 2016, Mother provided negative drug screens. However, she failed to
provide urine samples for two tests between November 2016 and January 2017, and in
February 2017, Mother twice tested positive for methamphetamine. Following the failed
drug tests, the district court added a condition to Mother's case plan: she could only visit
Z.E. after testing negative for two consecutive weeks. Failure to meet that condition
meant Z.E. at times went weeks without visits from Mother. During the remainder of the
case, Mother tested positive for methamphetamines or failed to show up for testing more
than 10 times. Mother questioned the validity of the tests and denied using
methamphetamine.

In February 2018, the State filed a motion to terminate Mother's parental rights.
The State alleged Mother had failed to complete several of her case plan tasks, including
failing to obtain and maintain stable income, housing, and transportation and failing to
follow recommendations of her mental health providers. The State also alleged that
Mother did not consistently provide negative drug tests, which impacted her ability to
visit Z.E.

The district court heard evidence on the State's termination motion in April 2018.
Before presenting evidence, the guardian ad litem asked that the court direct Mother to
take a drug test. Mother's attorney had no objection and told the court Mother had
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recently been in the hospital, had received a steroid shot the day before, and was taking
antibiotics and over-the-counter pain medications. The test was positive for amphetamine
and methamphetamine. Mother insisted that the test was a false positive and told the
court that the last time she used methamphetamine was in July 2017.

During the hearing on termination, the district court heard evidence that Mother
successfully completed several tasks on her case plan. She was involved in a variety of
mental health services, including participation in a domestic violence group and a
parenting program. She also submitted to a psychological evaluation and parenting
assessment with Donald Jones, LMLP, who worked with KVC Behavioral Healthcare to
perform psychological evaluations. Jones interviewed Mother and had her complete
psychological and parenting tests, from which he arrived at diagnoses for Mother: other
specified depressive disorder with anxiety; posttraumatic stress disorder (PTSD);
borderline personality disorder; and moderate to severe amphetamine use disorder.

Jones testified that his observations of Mother during the parenting test were
"complicated" because of a sudden change in her demeanor. The day of the parenting
test, Jones completed a brief interview with Mother, and she appeared sad and depressed.
They then took a 30-minute break, during which Mother left the building. When she
returned to do the parenting test Jones felt her demeanor was significantly different. He
described it as close to euphoric. Jones suspected the behavior change was caused by
amphetamine use but did not confirm. Mother did perform well during the parenting test,
although Jones thought she appeared under pressure.

In addition, the court heard testimony that Mother had obtained other mental
health services for which she provided documentation to Hester. Mother completed an
intake evaluation in July 2017 with Michael Peters, LSCSW, at Johnson County Mental
Health Center. After the intake examination, Peters diagnosed Mother with bipolar II
disorder, chronic PTSD, and agoraphobia with panic disorder. He also found she met the
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criteria for stimulant dependence, amphetamine dependence, alcohol abuse, and
borderline personality disorder. Peters expressed his opinion that Mother's substance
abuse issues would make it more difficult to treat her mental health issues. Mother did
not want her intake or diagnostic information released to KVC, but she did allow Peters
to release her progress notes, treatment plan, and medications. In the intake process,
Mother admitted to using illegal drugs or misusing prescription medication
approximately 120 times in the previous year.

Shana Takacs, a clinician at Johnson County Mental Health Center, testified about
her work with Mother. Takacs sent a letter to the court verifying that Mother participated
in her dual diagnosis plan and stating that she was active in individual therapy, group
therapy, case management services, and medication services. Takacs relied on Mother's
self-report that she had been sober since July 2017 and did not ask for drug screens.
Takacs did not believe that Mother had taken responsibility for any role she had in Z.E.
being placed in foster care.

Crystal Matchette was a social worker at Johnson County Mental Health Center
who testified about her role as a case manager for Mother, which involved connecting
Mother with community services that could help her achieve stability. For example,
Matchette helped Mother search for housing and gave her transportation vouchers to help
her get to appointments and work. At the conclusion of treatment, Matchette wrote a
letter for Mother stating Mother had engaged in individual therapy, group therapy, and
case management sessions through the dual diagnosis program at Johnson County Mental
Health. She noted that Mother had been approved for a housing voucher and was working
fulltime. Matchette believed Mother was utilizing all of the services available to reunite
with her daughter. She also believed that Mother had become better at emotional
regulation and using healthy coping skills.

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Matchette placed a caveat on her opinion about Mother's performance when the
court asked Matchette if her opinion that Mother was compliant with everything asked of
her would change if it turned out Mother was still using methamphetamine. Matchette
replied that she thought Mother was not using drugs and drug use would change her
opinion about compliance with the case plan.

In addition to the mental health services for Mother, the district court heard
testimony about treatment Z.E. had received while in State care. Shelby Alvarez, LMSW,
a mental health clinician at Johnson County Mental Health, met with Z.E. on a biweekly
basis for about a year. Alvarez diagnosed Z.E. with PTSD and had Z.E. write a "trauma
narrative" called "[Z.E.]'s Story" as part of a trauma-focused cognitive behavioral therapy
exercise. For the exercise, Z.E. wrote a story about trauma that she suffered. In her story,
Z.E. wrote that Mother "has a boyfriend named [Sean]" and that "[w]hen he got out of
jail, she went to him." Z.E. described Sean, stating: "He is very mean. He hurts my mom
and he is not a good boyfriend." One chapter in Z.E.'s story was titled "My Mom Fell Out
of the Car." It read:

"I was riding in the car with my mom and Sean. My mom was feeling car sick and she
opened the door, and then Sean took a turn and she fell out. And then I got scared
because she almost got ran over by a different car. My mom walked back to the car. I
think it was a broken leg, but it was scraped really, really bad."

Z.E. also described another incident, in a chapter titled "The Hardest Part to Tell."
Z.E. wrote:

"We hid behind the couch because we were scared that [Sean] had a knife. We
were inside and we were looking all around the house and we couldn't find him. Then me
and my mom were in the dark outside looking for him. We got very scared, and he was
sneaking on us I think and he was around the house and we found him. Then he was
hurting my mom. He was punching really fast and he was hitting her a lot. I watched and
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I thought he was going to hurt me too. After he hurt my mom he ran into the house and
we couldn't find him. We heard him talking, we were calling him and he was upstairs. I
think he was still mad but he didn't hurt us. [Sean] hurt her more than once, just not this
same night."

After working with Z.E., Alvarez noticed a decrease in Z.E.'s behaviors related to the
PTSD, and eventually Z.E. progressed to the point that Alvarez decided she did not need
additional therapy.

Kelli, who provided foster care for Z.E., testified she saw a stark difference in Z.E.
over the course of the case. By way of example, Kelli explained: "When she would get
upset, she would run and hide in a corner, and she would say, 'nobody loves me, I have
no friends,' and cry and wail, and she just doesn't do any of that anymore. She's a
completely different child." Kelli attributed the positive change primarily to counseling
and stability.

After hearing the evidence, the district court terminated Mother's parental rights.
The court found there was clear and convincing evidence that Mother was unfit by reason
of conduct or condition which rendered her unable to properly care for Z.E. and that her
conduct or condition was unlikely to change in the foreseeable future. The court also
found that termination was in Z.E.'s best interests. The district court's primary concern
was stability for Z.E. The court noted that Mother tested positive for methamphetamine,
did not have stable housing or transportation, did not provide proof of income, had been
fired at least five times during the pendency of the case, and was only partially compliant
with mental health treatment recommendations. The court also cited Mother's
unwillingness to accept responsibility for the case originally being filed as evidence
Mother was unlikely to change in the foreseeable future.

Mother timely appeals the termination order.
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ANALYSIS

Mother challenges the district court's termination order in three ways: (1) the
evidence was insufficient to support the district court's finding that Mother was unfit and
her conduct or condition was unlikely to change in the foreseeable future; (2) the district
court abused its discretion when it found termination of Mother's rights was in Z.E.'s best
interests; and (3) the district court abused its discretion in its questioning of witnesses.

Standard of review

A district court can only terminate a person's parental rights "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. 2018 Supp. 38-2269(a).
"In determining whether a parent's conduct or condition is likely to change in the
foreseeable future, the foreseeable future is to be considered from the child's perspective,
not the parents', as time perception of a child differs from that of an adult." In re S.D., 41
Kan. App 2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009). After making a finding of unfitness,
the district court must also find that termination is in the best interests of the child, giving
"primary consideration to the physical, mental or emotional health of the child." K.S.A.
2018 Supp. 38-2269(g)(1).

"When this court reviews a district court's termination of parental rights, we
consider whether, after review of all the evidence, viewed in the light most favorable to
the State, we are 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.
[Citation omitted.]." In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011).

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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. 686, 705, 187 P.3d 594 (2008).

Sufficiency of the evidence

K.S.A. 2018 Supp. 38-2269 lists a number of nonexclusive factors that courts must
consider in assessing whether a parent is unfit to care properly for a child because of
conduct or a condition unlikely to change in the foreseeable future. In this case, the
district court relied on four of those: K.S.A. 2018 Supp. 38-2269(b)(7), (b)(8), (b)(9), and
(c)(3). We look first at the district court's findings, then at evidence to support them.

The factor listed in K.S.A. 2018 Supp. 38-2269(b)(7) requires a court to consider
whether there was a "failure of reasonable efforts made by appropriate public or private
agencies to rehabilitate the family." The district court stated:

"Not only has DCF and [its] contractor, KVC, attempted to provide services to [Mother],
numerous agencies, both public and private in Johnson County, have attempted to assist
[Mother] in gaining stability and sobriety, but those efforts have failed."

K.S.A. 2018 Supp. 38-2269(b)(8) directs a court to assess whether there was a
"lack of effort on the part of the parent to adjust the parent's circumstances, conduct or
conditions to meet the needs of the child." In doing so, the district court stated: "I find
that the parent has expended very little effort to change her conduct and condition to meet
the minor's needs."

The State filed its petition on April 18, 2016, and Z.E. was taken into custody a
day later. The hearing on termination was held on April 18, 2018, two years later. In
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K.S.A. 2018 Supp. 38-2269(b)(9), the time a child is outside the parent's home is part of
the consideration, requiring the court to consider

"whether, as a result of the actions or inactions attributable to the parent and one
or more of the factors listed in subsection (c) apply, the child has been in the custody of
the secretary and placed with neither parent for 15 of the most recent 22 months
beginning 60 days after the date on which a child in the secretary's custody was removed
from the child's home."

Since Z.E. was never returned to parental custody after she was placed in DCF's care, the
time component was met. The district court found "that extended out of home placement
has been the result of both the actions and inactions of [Mother]," and made the
connection to subsection (c), finding "that pursuant to 2269(c)(3), [Mother] has failed to
carry out a plan approved by the Court directed toward the reintegration of the child into
the parent's home."

As the district court summarized, the record contains evidence of reasonable
efforts from an array of agencies, "both public and private," directed toward helping
Mother put in place the basic components necessary before any court would consider
return of Z.E. to her care: sobriety, safety from the domestic relations concerns that
proximately led to the filing of the case, and a basic demonstration of stability in housing,
transportation, and employment. In each of those areas, the record supports the court's
finding that the efforts failed.

The district court found Mother "expended very little effort to change her conduct
and condition to meet the minor's needs." The court explained: "In simple terms,
[Mother] has demonstrated no stability in treatment, housing, or employment, continues
to use illicit substances and has not behaved appropriately in more than one supervised
contact with [Z.E.]." One of the key areas of evidence the court relied on for that finding
was the extent to which, after two years, KVC and other helping agencies, especially
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Mother's case manager, continued to take the lead in making the necessary calls, contacts,
and adjustments to deal with the vicissitudes in Mother's life relating to housing,
transportation, and other necessities. The court also remarked on Mother's failure to
follow the recommendations for group substance abuse treatment as part of her dual
diagnosis treatment plan, as well as the continued positive drug tests that Mother denied
were valid. Again, viewing the record in the light most favorable to the State, a rational
fact-finder could conclude Mother had not made changes in her life that would be
required if she were giving priority to Z.E.'s needs.

Further, the events in the record support the time component consideration of
K.S.A. 2018 Supp. 38-2269(b)(9), and all of the evidence the district court cited relating
to Mother's failure to progress during the case provides a sufficient basis for the
necessary finding that Z.E.'s time out of Mother's home was "as a result of the actions or
inactions attributable to the parent." That same body of evidence that the district court
reviewed is clearly sufficient to support the court's finding that Mother failed to carry out
the court's reasonable plan directed toward reintegration into Mother's home.

In light of the district court's specific recitation of the evidence upon which it
relied for its findings, we have no question 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 K.W., 45 Kan.App.2d at 354.

Mother also argues that the State presented no evidence of her being unfit or
"unable" to change her circumstances. She cites testimony from the State's witnesses and
notes that none expressed an opinion on whether she was unfit or unable to change in the
foreseeable future. First, we note an important distinction between being "unable to
change her circumstances," as Mother argues, and being unfit because of conduct or a
condition that is "unlikely to change in the foreseeable future," as stated in K.S.A. 2018
Supp. 38-2269(a). While Mother's ability to change was presumed by the existence of a
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plan to help her do so, the district court was called to make a quite different judgment—
whether Mother was likely to make the needed changes in a timeframe that would be
compatible with Z.E.'s needs. The district court reasoned that Mother's failure to
recognize personal responsibility for Z.E.'s situation made it unlikely Mother would feel
any need for change. We see ample evidence in the record upon which the district court
would have been entitled to rely for the finding that Mother was not likely to change in
the foreseeable future.

Next, Mother cites no authority for her argument that there must be witnesses to
testify directly on the legal conclusion of unfitness. It was the role of the witnesses to
present facts and, in certain permitted instances, opinions. It is, however, the province of
the district court to make the legal conclusions based on those facts and opinions. The
evidence Mother contends was missing would have been properly subject to objection
had it been offered.

Best interests finding

Mother's second issue is a challenge to the district court's finding that termination
of her parental rights was in Z.E.'s best interests. K.S.A. 2018 Supp. 38-2269(g)(1)
directs that:

"If the court makes a finding of unfitness, the court shall consider whether
termination of parental rights as requested in the petition or motion is in the best interests
of the child. In making the determination, the court shall give primary consideration to
the physical, mental and emotional health of the child. If the physical, mental or
emotional needs of the child would best be served by termination of parental rights, the
court shall so order."

"On appeal, the appellate court reviews the best-interests determination for abuse of
discretion. A district court abuses its discretion when no reasonable person would agree
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with its decision or the decision is based on a legal or factual error." In re R.S., 50 Kan.
App. 2d 1105, Syl. ¶ 2, 336 P.3d 903 (2014).

Mother argues that the State failed to present evidence that termination of her
parental rights was in Z.E.'s best interests. Thus, she argues, the district court did not
have evidence upon which to base its decision. As with the unfitness issue, Mother fails
to cite any authority that would require the State's witnesses to present direct testimony
about what they think is in a child's best interests. The witnesses provide the facts and, if
qualified, their opinions, and the district court then has broad discretion to decide from all
the evidence whether termination is in a child's best interests.

Mother further contends the district court failed to make the findings required for
the best interests conclusion. She asserts "[t]he only finding the Court made was that it
was in the child's best interests because all children needed permanency." Mother's
characterization of the district court's ruling is incomplete. The court explained its
decision as follows:

"I find based on all of the testimony presented, that given the times of violent
history of this child's life prior to being taken into custody, [Mother's] complete
unwillingness or inability to change or even recognize her contributions to that child's
history, and the well-recognized need of children to grow up in a safe, stable
environment, that it is in [Z.E.'s] best interests that [Mother's] rights be terminated and
the Secretary be given custody of [Z.E.] and the authority to consent to her adoption."

Although Z.E.'s need for permanency would be a proper consideration, the district
court clearly based its decision on a view that was much broader than the need for
permanency alone. The court's view considered both Mother's behavior and how that
behavior affected Z.E. The district court made a reasonable decision that was not based
on either factual or legal error. The court, therefore, did not abuse its discretion.

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Questioning witnesses

Finally, Mother also contends the district court abused its discretion by
questioning the State's witnesses. She asserts that the State or guardian ad litem should
have asked the questions.

We review a claim of error in questioning witnesses for abuse of discretion. See
State v. Boyd, 222 Kan. 155, 159-60, 563 P.2d 446 (1977). As we have noted above,
judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on
an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

This issue is raised by Mother for the first time, as she made no objection to the
judge's questioning at the time it occurred. Generally, issues not raised before the district
court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987
(2014). Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) requires an appellant to
explain why an issue not raised below should be considered for the first time on appeal.
In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), the Supreme Court held
that litigants who fail to comply with this rule risk a ruling that the issue is improperly
briefed, and the issue will be deemed waived or abandoned. Thereafter, the Supreme
Court held that Rule 6.02(a)(5) would be strictly enforced. State v. Godfrey, 301 Kan.
1041, 1044, 350 P.3d 1068 (2015). Mother fails to explain why the issue is presented for
the first time on appeal.

Even if the issue had been properly preserved, we would find Mother's argument is
meritless. A trial judge may question witnesses:

"We have stated on a number of occasions that the purpose of a trial in a criminal case is
to ascertain the truth of the matters charged against the defendant and it is a part of the
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business of the trial judge to see that this end is attained, even though in accomplishing
the full development of the truth it sometimes becomes necessary for him to examine and
cross-examine the witnesses." [Citations omitted.] Boyd, 222 Kan. at 158.

Nonetheless, there are limits on that authority which are most acutely present during trial
to a jury. "[T]he judge must exercise great care to prevent giving the jury the impression
that he or she is biased against a party and the judge must not forget the function of a
judge and assume that of an advocate." State v. Plunkett, 257 Kan. 135, 140, 891 P.2d
370 (1995); see also State v. Hays, 256 Kan. 48, 52, 883 P.2d 1093 (1994) (holding that
the district court judge did not abuse his discretion by questioning a witness because the
judge's questions and comments did not "reveal he assumed the role of an advocate, nor
did he show bias or prejudice"); Boyd, 222 Kan. at 159 (finding "nothing in the record . . .
to sustain defendant's contention that the judge sought to assume the role of an advocate,
nor does it support a contention that the judge created prejudice by spoken words,
expression of face, or tone of voice").

Here, the district court judge did not abuse her discretion in questioning witnesses.
The first time the judge asked a question, she was following up on a question the
guardian ad litem had asked Takacs. The judge asked Takacs to clarify her opinion on
whether Mother took responsibility for Z.E. entering State care. Takacs replied that she
had never witnessed Mother assume responsibility for Z.E. being placed in foster care.
The second time, the judge asked Jones about his observation of a change in Mother's
behavior and whether he had a suspicion about the cause of the behavior. He replied that
Mother's behavior was consistent with amphetamine use. In the third instance, the judge
asked Matchette whether her opinion that Mother was doing everything she could to be
stable and comply with everything Matchette asked her to do would change if she knew
Mother's prehearing drug screen was positive for methamphetamine. Matchette replied it
would change her opinion.

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Although a trial judge should never become an advocate for any party, the danger
of prejudice from judicial questions is most pronounced when a jury is involved as the
fact-finder. That, of course, was not the situation here. With the first two witnesses, the
judge was clarifying a point already explored by the parties. With the final witness, the
judge presented Matchette with facts that she did not take into account when forming her
opinion. Matchette based her original opinion on Mother's self-report that she was not
using drugs. By allowing Matchette to reformulate her opinion based on new information
that was already known by the parties, the judge was able to obtain a more informed
opinion from Matchette. In each instance, the judge's questions helped develop the
truth—the purpose of judicial questioning. Further, the court's questioning took place
after direct and cross-examination, and the judge asked the attorneys on each occasion if
they would like to follow up on her questions. This provided the parties an opportunity to
deal with the newly elicited information and reduced the risk of bias.

This issue was not properly preserved, but even if it had been the subject of
objection at the hearing, we find the district judge did not cross the line between proper
inquiry and improper advocacy. There was no abuse of discretion.

Affirmed.