M.L.G. v. M.M.H.

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NOT DESIGNATED FOR PUBLICATION

No. 113,742

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

M.L.G.,
Appellant,

v.

M.M.H.,
Appellee.


MEMORANDUM OPINION

Appeal from Jefferson District Court; GARY L. NAFZIGER, judge. Opinion filed February 5, 2016.
Affirmed.

M.L.G., appellant pro se.

Darla Ottensmeier, of Oskaloosa, for appellee.

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

Per Curiam: This is an appeal by the biological father from the district court's
order dismissing his motion seeking parenting time with his minor child. The child's
biological mother is not involved in this appeal. Father is incarcerated and has been since
2006. Although he was represented by counsel before the district court, he is acting pro
se on appeal. In his brief, Father contends that the district court erred in multiple ways.
Based on our review of the record and Kansas law, we find none of Father's arguments to
be persuasive. Specifically, we conclude that Father consented to the appointment of a
permanent custodian who has the right to determine any contact that he may have with
the child. Thus, we affirm.
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FACTS

On May 10, 2003, the minor child was born, and at some point in 2007, a Child in
Need of Care (CINC) petition was filed in Leavenworth County District Court. On June
5, 2007, the district court adjudicated the child to be in need of care. In particular, the
district court found that Father was incarcerated; Mother was struggling with substance
abuse; and there was evidence of physical and emotional abuse directed toward the child.

Subsequently, Father consented to the appointment of his sister as the child's
permanent custodian. The order approving the appointment was evidently filed with the
district court on October 26, 2007. Although the order appointing the permanent
custodian is not included in the record on appeal, it is quoted at length by the parties, and
the pertinent terms are undisputed. The document included the following notice:

"NOTICE TO PARENT: THIS IS AN IMPORTANT LEGAL DOCUMENT,
WHEN YOU SIGN THIS RELINQUISHMENT, A PERMANENT CUSTODIAN WILL
BE APPOINTED FOR YOUR CHILD. THE PERMANENT CUSTODIAN SHALL
EXERCISE ALL OF THE RIGHTS AND RESPONSIBILITIES OF A PARENT,
EXCEPT CONSENT TO ADOPTION OR AS LIMITED BY THE COURT. YOU ARE
STILL RESPONSIBLE FOR PAYING CHILD SUPPORT." (Emphasis added.)

Moreover, in consenting to the appointment of a permanent custodian, Father
represented that he understood the following:

"I understand that I may be able to have some contact with my child, but only if
the permanent custodian decides it is in the child's best interest and if the court allows
contact.

"I understand that unless the court orders differently, the permanent custodian
has the right to make the following decisions about my child: the amount and type of
contact I have with my child . . . .
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"I understand that this consent is final.

"I understand the permanent custodian will have full authority and all the rights
of a birth parent or legal guardian over the child, except the power to place the child for
adoption and give consent to adoption, and as otherwise limited by the court." (Emphasis
added.)

We note that this language mirrors that of the language contained in the Kansas
Judicial Council's form for parental consent to appointment of permanent custodians.
(http://www.kansasjudicialcouncil.org/184_Consent_App_Perm_Custodian.pdf).

After Father consented to the appointment of his sister as the child's permanent
custodian, and after the district court approved the appointment, the CINC case was
closed in Leavenworth County. Over the next 2 1/2 years, the permanent custodian
permitted Father to have contact with his child. Although the parties agree that the
permanent custodian has refused to allow the child to have any contact with Father since
April 1, 2010, the parties dispute the reason for the termination.

On February 8, 2011, Father filed a motion in Leavenworth County District Court,
seeking to reopen the CINC case so that he could request parenting time with the child.
But the district court entered an order denying the motion on June 15, 2011. Father did
not appeal that decision.

Nearly 2 years later, in December 2012, Father evidently filed a domestic case in
Leavenworth County District Court against the permanent custodian, in which he sought
parenting time with the child. On January 11, 2013, the district court dismissed that
action as well and ordered Father to pay $500 in attorney fees. Once again, Father did not
appeal.

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On June 27, 2013, although no case was pending, Father filed a motion for
parenting time in Jefferson County District Court. At the time, it appears that the child
resided with the permanent custodian in Jefferson County. Thereafter, the district court
appointed a guardian ad litem to represent the child.

On August 12, 2013, the permanent custodian filed a motion to dismiss, arguing
that Father was "attempting to do in Jefferson County District Court what he has been
unsuccessful in doing in Leavenworth County District Court . . . ." On September 24,
2013, the guardian ad litem submitted a report in which she recommended that the district
court dismiss the motion because she believed Father was forum shopping in an attempt
to supersede the two orders entered in Leavenworth County District Court. The guardian
ad litem also noted that Father had voluntarily consented to appointment of his sister as
permanent custodian of the child at the time of the CINC action and that the permanent
custodian now had the right—subject to court approval—to determine what amount of
contact, if any, Father should have with the child.

The district court subsequently appointed an attorney to represent Father on his
motion. A few months later, on January 24, 2014, the district court held a hearing on the
motion to dismiss, during which Father's attorney appeared on his behalf. At the time of
the hearing, Father was still incarcerated with an earliest possible release date of June 9,
2017. At the conclusion of the hearing, the district court granted the permanent
custodian's motion to dismiss and eventually entered a journal entry on September 2,
2014.

In the journal entry granting the motion to dismiss, the district court found that (1)
the issues presented in Father's motion were res judicata because they were previously
litigated in Leavenworth County District Court; and (2) Father did not state a claim upon
which relief could be granted because "there were no limitations or conditions placed
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upon [the permanent custodian's] rights and responsibilities" to determine whether it is in
the best interests of the child to see her Father. Thereafter, Father filed a notice of appeal.

ANALYSIS

On appeal, Father presents several arguments. First, he contends that the Jefferson
County District Court erred by finding that it did not have jurisdiction to hear his motion.
Second, Father contends that the district court erred by finding his claims were barred by
res judicata. Third, Father contends that the appointment of the permanent custodian in
2007 violated K.S.A. 2015 Supp. 38-2272 and his fundamental rights as a parent. Fourth,
Father contends that the district court relied too heavily on the report submitted by the
guardian ad litem. We consider his contentions in the order they are presented.

Jurisdiction

Initially, Father incorrectly asserts that the Jefferson County District Court found it
lacked jurisdiction to hear his motion. A review of the record on appeal reveals that the
district court never concluded that it was without jurisdiction to consider Father's motion.
Perhaps Father is referencing to the two prior cases filed in Leavenworth County District
Court, both of which appear to have been dismissed for a lack of jurisdiction. But Father
did not appeal either of those decision, so the question of jurisdiction in those cases is not
properly before this court.

Res Judicata

Father next argues that the district court improperly found that his claims were
precluded by res judicata. This court has found that res judicata is comprised of two
related doctrines: (1) claim preclusion and (2) issue preclusion (collateral estoppel).
Knowles v. Fleetwood Motorhomes of California, Inc., 40 Kan. App. 2d 573, 577, 194
P.3d 38 (2008). In the present case, only claim preclusion is at issue.
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Under Kansas law,

"'when a court of competent jurisdiction has entered a final judgment on the merits of a
cause of action, the parties to the suit and their privies are thereafter bound "not only as to
every matter which was offered and received to sustain or defeat the claim or demand,
but as to any other admissible matter which might have been offered for that purpose."'"
Stanfield v. Osborne Indus., Inc., 263 Kan. 388, 397, 949 P.2d 602 (1997).

The applicability of res judicata is an issue of law over which appellate courts
exercise de novo review. Rhoten v. Dickson, 290 Kan. 92, 106, 223 P.3d 786 (2010).

In Cain v. Jacox, 302 Kan. ___, 354 P.3d 1196, 1199 (2015), the Kansas Supreme
Court recently examined the doctrine of res judicata in the context of child support and
found that courts should "consider the substance of both the first and subsequent action
and not merely their procedural form." 354 P.3d at 1199. Our Supreme Court concluded
that res judicata's equitable

"framework neither favors nor disfavors the application of the rule in any particular case.
It merely requires that before the doctrine is either invoked or rejected, a court must
conduct a case-by-case analysis that moves beyond a rigid and technical application to
consider the fundamental purposes of the rule in light of the real substance of the case at
hand." 354 P.3d at 1199.

Applying this analysis, we find that at least some of Father's claims are barred by
res judicata. Most important, we find that any challenge to his consent to the appointment
of the permanent custodian by the Leavenworth County District Court in 2007 is barred
by res judicata because Father did not appeal from that decision. Furthermore, we do not
find that the motion for parenting time filed by Father in Jefferson County is an
appropriate procedure to utilize in an attempt to collaterally attack the Leavenworth
County order appointing the permanent custodian.
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At most, Father could attempt to seek parenting time with his child in Jefferson
County, and he was allowed to do so. Not only did the Jefferson County District Court
allow Father's motion to stand—evidently treating it as a petition—but it also appointed
an attorney to represent him in addition to a guardian ad litem to represent the child.
Ultimately, however, the district court concluded that as the permanent custodian,
Father's sister has the authority to determine whether parenting time with Father is in the
best interests of the child. Thus, we will consider whether the district court erred in
reaching this conclusion.

The Role of the Permanent Custodian

Father recognizes in his brief that the consent to appointment of the permanent
custodian he signed in 2007 stated in paragraph 8: "I understand that I may be able to
have some contact with my child, but only if the permanent custodian decides it is in the
child's best interests and if the court allows the contact." (Emphasis added.) The
interpretation of statutes and the legal effect to be given to written documents are both
questions of law over which we exercise unlimited review. In re Estate of Somers, 277
Kan. 761, Syl. ¶ 1, 89 P.3d 898 (2004).

We note that the language quoted above to be consistent with the Revised Kansas
Code for Care of Children. K.S.A. 2015 Supp. 38-2272(c) provides that a permanent
custodian appointed by a district court "stand[s] in loco parentis to the child and . . .
possess[es] over the child all the rights of a legal guardian," except under limited
circumstances not relevant to the present appeal. Moreover, we find that the language
quoted above is nearly identical to that found in K.S.A. 2013 Supp. 38-2272(f)(5).

Accordingly, we find that based upon the consent to the appointment of his sister
as the permanent custodian for the child—as well as the Leavenworth County District
Court's subsequent approval of the appointment—that the permanent custodian has the
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authority to decide whether contact with Father is in the child's best interests. We also
note that even if the permanent custodian decides that contact with Father is in the child's
best interests, such contact must also be allowed by the district court. Thus, we hold that
the district court's conclusion was correct as a matter of law.

Report of the Guardian Ad Litem

Lastly, Father challenges the report submitted by the guardian ad litem. He
contends that had the guardian ad litem been acting in the child's best interests, she would
not have agreed with the permanent custodian's recommendation to dismiss his motion.
However, it appears that the guardian ad litem appropriately pointed out that under the
terms of the order of appointment, the permanent custodian had the right to determine
whether contact with father was in the child's best interests. Furthermore, appellate courts
do not reweigh evidence, assess the credibility of witnesses, or resolve conflicts in
evidence. State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015).

We, therefore, conclude that the district court's order should be affirmed.

Affirmed.