In re A.R.B.

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,678
118,679

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of A.R.B. and J.T.B.,
Minor Children.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed August 31, 2018.
Affirmed.

Laura E. Poschen, of Ward Law Offices, LLC, of Wichita, for appellant.

Lesley A. Isherwood, assistant district attorney, and Marc Bennett, district attorney, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and LORI BOLTON FLEMING, District Judge
assigned.

PER CURIAM: R.B., the natural father of A.R.B. and J.T.B., minor children,
appeals from the district court's termination of his parental rights. Specifically, Father
asserts that he received ineffective assistance of counsel during his termination hearing.
Father has failed to cite anything in the record that demonstrates a deficient performance
of counsel. Even if deficient representation is assumed to have occurred, Father has failed
to prove that any possible deficiency resulted in prejudice. Thus, the district court is
affirmed.

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FACTUAL AND PROCEDURAL HISTORY

Police placed A.R.B. and J.T.B. into protective custody on July 22, 2016. On July
26, 2016, the State filed child in need of care (CINC) petitions for A.R.B. and J.T.B.,
alleging illegal substance abuse by the parents, neglect of the children, poor home
conditions, and the parents' lack of employment. The same day, the district court ordered
the State to remove A.R.B. and J.T.B. from the parents' home and place them into the
custody of the Department for Children and Families (DCF). Approximately two weeks
later, Father was arrested on charges of aggravated burglary, theft, and battery.

An adjudication hearing in the CINC cases was held on August 19, 2016. At that
hearing, the children were adjudicated CINCs as to Mother. Father's portion of the
hearing was continued at his request for an evidentiary hearing. At the same hearing, the
district court granted Father's oral motion for a new attorney. The district court informed
Father that his evidentiary hearing was scheduled for October 3, 2016.

At Father's adjudication hearing on October 3, 2016, Father remained in custody
related to his pending criminal charges from August 2016. At the hearing, the State
offered three witnesses, including Father. Father testified that he had no idea the hearing
was scheduled for that day. Father further testified that he would be released from
incarceration by October 11, 2016, after the State dismissed his pending charges. The
State offered the testimony of Chris Garnica, a child protection specialist assigned to the
family, and Bridget Klein, a family support worker also assigned to the children's CINC
cases. At the end of the hearing, Father again asserted that he did not know the district
court had scheduled the evidentiary hearing for that date. The district court adjudicated
the children as CINCs as to Father.

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The district court held a disposition hearing on October 14, 2016. At that time,
Father remained incarcerated. The parents were given case plan tasks, and the cases
progressed with little improvement by the parents.

Ultimately, the State filed a motion for finding of unfitness and termination of
parental rights against both Mother and Father. The motion noted numerous incidents of
negligent parenting, refusal by both parents to work with the State to reintegrate the
children with the parents, open hostility by Father to the process, and continued drug and
alcohol usage. On February 3, 2017, the district court, at Father's request, continued a
hearing on the termination of parental rights.

On June 27, 2017, the district court held the termination hearing. Father was
transported from prison to participate. Prior to giving testimony, Father told the district
court he did not receive notice of the hearing and was unprepared for testimony, despite
having been granted the previous continuance and new court date set at his request. The
record reflects that Father was agitated, disrespectful, and uncooperative throughout the
proceeding. During the hearing, Father told the court he did not have the opportunity to
call witnesses on his behalf and he felt he was not receiving a fair hearing. While on the
witness stand, Father refused to cooperate with the process. During testimony of another
witness, Father became agitated and said, "You can take me back. I don't give a damn
about no contempt of court. You can find me in contempt of Court, but I'm not fixing to
sit here and go through this bullshit again." As the result of his actions during the
termination hearing, Father was found in contempt, sentenced to six months in jail, and
removed from the hearing. Father's attorney stated to the district court that the hearing
could proceed without his client and did not request a continuance.

At the conclusion of the termination hearing, pursuant to K.S.A. 2017 Supp. 38-
2269(a), the district court found by clear and convincing evidence that Father was unfit
by reason or conduct or condition which rendered him unable to care properly for the
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children and that the conduct or condition was unlikely to change in the foreseeable
future. The district court also found that termination was in the best interests of the
children.

The district court then stated that it had reviewed the nine factors in K.S.A. 2017
Supp. 38-2269(b) and determined the following factors applied to support its unfitness
finding:

 K.S.A. 2017 Supp. 38-2269(b)(3): The district court noted that the cases had
initially been filed because of the parents' drug use, and Father had tested
positive for PCP three months earlier.

 K.S.A. 2017 Supp. 38-2269(b)(4): The district court focused on Father's
failure to provide a safe and stable living environment, his failure to protect the
children from his own issues and Mother's issues, and his own instability and
poor judgment, resulting in physical, mental, or emotional abuse or neglect of
the children. The district court pointed out that throughout the duration of the
children's cases, Father had been free of incarceration for a total of only 17
days and stressed that this illustrated Father's inability to provide a safe and
stable living environment and his inability to protect the children.

 K.S.A. 2017 Supp. 38-2269(b)(5): Father had been convicted of felonies in at
least two different cases during the children's cases and was currently serving a
prison sentence of approximately 15 years. The district court noted that the
earliest Father could be released would be in approximately 10 years.

 K.S.A. 2017 Supp. 38-2269(b)(7): The district court noted that DCF and St.
Francis had been available and had offered referrals, plan tasks, and drug
screens to help Father become stable and place him in a position to care for his
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children. However, Father's behavior was hostile and uncooperative, and
Father did not complete court orders, did not complete his case plans, did not
complete a majority of his drug screens, and refused to take responsibility for
his children being taken from him.

 K.S.A. 2017 Supp. 38-2269(b)(8): Father had failed due to lack of effort to
adjust his circumstances, conduct, or conditions to meet the needs of the
children. The district court felt this was demonstrated by Father's incarceration
and failure to participate in any of the assistance offered to him by the court,
DCF, and St. Francis.

Because the children were in out-of-home placement, the district court also
considered the factors in K.S.A. 2017 Supp. 38-2269(c) and found the following factors
supported its unfitness finding:

 K.S.A. 2017 Supp. 38-2269(c)(2): Father had failed to maintain regular
visitations with the children or communicate with the children or with the
children's custodian due to his incarceration and his uncooperativeness.

 K.S.A. 2017 Supp. 38-2269(c)(3): Father had failed to carry out a reasonable
plan approved by the district court directed toward the reintegration of the
children. The district court noted that Father had not completed any court-
approved plan during the pendency of these cases.

The district court then terminated Father's parental rights. Mother relinquished her
rights to the children during the same hearing. She has not appealed.

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On June 28, 2017, Father timely filed this appeal. On November 10, 2017, Father
filed an amended notice of appeal, as the prior appeal failed to include the verification
form. The district court allowed the out-of-time filing on December 5, 2017.

WAS FATHER'S COUNSEL INEFFECTIVE?

A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law. See Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015). When reviewing a
mixed question of fact and law, an appellate court applies a bifurcated review standard.
The district court's factual findings are generally reviewed for substantial competent
evidence, and its conclusions of law based on those facts are subject to unlimited review.
See State v. Miller, 293 Kan. 535, 547, 264 P.3d 461 (2011).

Father asserts, for the first time on appeal, that he received ineffective assistance
of counsel during his termination of parental rights proceedings. As a preliminary matter,
an appellate court generally 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. Van
Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986)." State v. Galaviz, 296 Kan. 168,
192, 291 P.3d 62 (2012). An appellate court may consider 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).

In this case, Father filed a motion with this court to remand this case to the district
court for a Van Cleave hearing. However, on February 15, 2018, this court denied
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Father's motion without further discussion. This court need not examine whether a Van
Cleave hearing in the context of a termination of parental rights hearing is required
because on these facts, even if ineffective representation occurred, there was no
prejudice.

To prevail on a claim of ineffective assistance of counsel, a defendant must
establish "(1) the performance of defense counsel was deficient under the totality of the
circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would
have reached a different result absent the deficient performance." Sola-Morales v. State,
300 Kan. 875, 882, 335 P.3d 1162 (2014). 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, and the reviewing court must strongly
presume that counsel's conduct fell within the broad range of reasonable professional
assistance. See 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 result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.' [Citations omitted.]" State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828
(2015).

Under the first factor of the Sola-Morales test, Father raises three alleged
deficiencies with his trial counsel's performance. First, Father asserts that his counsel
provided deficient communication. Specifically, he argues his counsel only briefly spoke
with him before his evidentiary hearings and that his trial counsel ignored Father's
attempts at additional communication. Father further argued that he had no knowledge of
the hearings prior to their occurrence, so he was unable to present a prepared defense.

At the October 3, 2016 hearing on the State's motion for review and termination of
parental rights, Father told the district court he had no idea that he had a hearing that day.
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However, the record indicates that on August 19, 2016, the district court told Father that
his evidentiary hearing was scheduled for October 3, 2016. Furthermore, besides his
outbursts during the June 27, 2017 hearing, Father cites to nothing indicating a
communication breakdown between his attorney and himself. In fact, during that hearing,
Father refused to properly answer questions while he was on the stand. Due to his
inability to control himself, the district court found Father in contempt of court and
sentenced him to another six months of jail time. Furthermore, Father's attorney told the
district court that Father refused to talk with him. Therefore, Father has failed to prove a
deficiency on his deficient communication claim.

Father next claims that his attorney failed to subpoena witnesses that Father
requested or present evidence on his behalf. "'[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable;
and strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.'" State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318 (2013) (quoting
Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 [1984]).

Here again Father fails to present anything more than the bare assertion that his
attorney was deficient. Father asserted at the June 27 hearing that he asked his lawyer to
call his children's pediatrician and two other people. On appeal, Father simply asserts that
there were witnesses his attorney could have called, without articulating who those
witnesses were specifically or what they would have to say in testimony. Father carries
the burden to show that his counsel's actions, when viewed in the totality of the
circumstances, were beyond the broad discretion given to attorneys. His bare argument
and assertion in the record that he told his attorney about some witnesses is insufficient to
overcome the strong assumption that his attorney's conduct was appropriate. See Kelly,
298 Kan. at 970-71.
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Father finally argues that his attorney made inappropriate statements to the district
court. Specifically, Father takes issue with his attorney telling the district that the June 27
hearing should proceed in his absence after the district court found him in contempt and
he left the courthouse. Father seeks the application of the exception under United States
v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which
provides that a defendant who is completely denied the assistance of counsel at a critical
stage of a proceeding does not need to prove that his attorney's deficient conduct had a
probable effect on the outcome of the case. See Fuller, 303 Kan. 486-87.

Here, the Cronic exception is inapplicable. Father had an attorney prior to and
during the June 27 hearing. Father chose to act in contempt of court and specifically told
the court, "You can take me back. I don't give a damn about no contempt of court. You
can find me in contempt of Court, but I'm not fixing to sit here and go through this
bullshit again." Father refused the counsel of his attorney, rather than the district court or
some other party denying him representation. Therefore, the Cronic exception is
inapplicable to his actions.

Perhaps the better practice would have been for Father's counsel to at least request
a continuance, even though Father created the reason for his own absence. However, even
assuming the representation was deficient due to counsel's failure to request a
continuance, Father suffered no prejudice due to the overwhelming evidence in the record
of his unfitness. This is true for each of Father's claims of ineffective assistance. Father
would have to establish that there is a reasonable probability a different result would have
been achieved in the absence of the deficient performance. See Sola-Morales, 300 Kan. at
882. Father simply cannot meet this burden under the facts of this case. The record
demonstrates that Father tested positive for drugs throughout the life of these cases.
Father would become combative and aggressive when asked to perform urinalysis testing.
Father was unemployed and could not provide even basic necessities for the children.
Father was incarcerated for all but 17 days while these cases were pending. Father
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showed no improvement throughout the life of the cases and was unwilling to change his
circumstances to meet the needs of his children. Most compelling, at the time of the
termination hearing, Father was serving a 189-month prison sentence.

Additionally, Father has failed to articulate any actual prejudice that he suffered
as a result of his attorney's actions. His appeal only offers generic statements that he was
prejudiced but does not explain how his attorney's actions had a probable effect on the
outcome of the case. A point raised incidentally in a brief and not argued therein is
deemed abandoned. Sprague, 303 Kan. at 425.

In sum, even if deficient representation is assumed to have occurred, Father has
shown no reasonable probability a different result would have been achieved in the
absence of the deficient performance.

Affirmed.