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In re J.A.H.

December 7, 2007

IN THE INTEREST OF J.A.H., A CHILD UNDER THE AGE OF 18.


Review of the judgment of the Court of Appeals in an unpublished opinion filed February 23, 2007. Appeal from Shawnee district court; DANIEL L. MITCHELL, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

SYLLABUS BY THE COURT

1. Under the facts of this case, where 2 days after the filing of a child in need of care petition the father received court-appointed counsel pursuant to K.S.A. 2005 Supp. 38-1505(b); where 19 days later the father then voluntarily waived that right, counsel was allowed to withdraw, and the father elected to proceed pro se; where the father's desire to proceed pro se was reinforced 19 days later at the pretrial hearing, despite the court's warning that he might be disadvantaged; and where 69 days after the father's original waiver he requested appointment of counsel and a continuance on the morning of trial, the district court did nor err in denying the requests and proceeding with trial.

2. Under the facts of this case, sufficient evidence supports the district court's finding that J.A.H. was a child in need of care.

The opinion of the court was delivered by: Nuss, J.

On the morning of trial to determine whether a child was in need of care, his father requested court-appointed counsel and a continuance. In denying the requests, the district court observed that almost 70 days earlier the father had released his court-appointed counsel and elected to proceed pro se. Accordingly, the trial proceeded with the father representing himself and the court finding that the child, J.A.H., was in need of care as defined by K.S.A. 2005 Supp. 38-1502(a)(1), (2), and (3). The Court of Appeals affirmed. In re J.A.H., No. 96,364, an unpublished opinion filed February 23, 2007; 2007 WL 570313. Our jurisdiction is pursuant to K.S.A. 20-3018(b), petition for review granted.

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in failing to grant the father's request for appointment of counsel and a continuance the morning of trial? No.

2. Did sufficient evidence support the district court's finding that J.A.H. was a child in need of care? Yes.

Accordingly, the judgments of the district court and the Court of Appeals are affirmed.

FACTS

J.A.H. was born to L.R. (Mother) and D.H. (Father) in April 2000. Mother and Father shared joint custody, but Father was the primary residential parent.

Court Services Officer David Claassen Wilson had worked with Mother and Father as a conciliator on three occasions. When Wilson dealt with them a fourth time, on October 5, 2005, he recommended their case be referred to case management after receiving reports of problems with visitation exchanges and alleged drug use. Mother had reported to Wilson that she suspected Father was using drugs in front of J.A.H. She claimed that J.A.H. was making statements like, "'I know how to roll a joint cause I saw daddy do it'" and "'Daddy was smoking a glass pipe with white powder in it.'" On the same day as the referral, Father tested positive for methamphetamine in an urinalysis conducted through court services.

Wilson testified that approximately 1 week later he was assigned to the case as a case manager. He repeatedly wrote to Father and left a number of messages requesting a meeting with him. Wilson eventually scheduled a meeting for October 24.

Wilson testified that on October 20, Father called to say that he did not have transportation and might not be able to make the meeting. Wilson told Father to call if he was unable to attend, but Father never called and did not attend the meeting. On October 25, Father left a message with Wilson stating that Father was moving to Wichita soon. On October 28, Father left a second message with Wilson complaining about a report Wilson had made.

Sherri Keller, the supervisor of the domestic relations division and Wilson's superior, testified that on October 31 Father showed up unannounced at the court services office, demanding to meet with Wilson's supervisor. Father was upset about Wilson's report recommending that a child in need of care (CINC) petition be filed on behalf of J.A.H. Keller and Wilson attempted to explain to Father the rationale behind the report's recommendation. Father was defiant and claimed that he was planning to move away soon with J.A.H. As he left, he slammed the door and yelled, "Fuck the Court!" and "Fuck Court Services!"

On November 2, the State filed a CINC petition alleging J.A.H. to be a child in need of care, as defined in K.S.A. 2005 Supp. 38-1502(a)(1), (2), and (3). Although the petition did not seek termination of parental rights, among other things it alleged that Mother was a presumptively unfit parent under K.S.A. 38-1585(a)(3) because on two previous occasions she had a child in her custody adjudicated as a CINC. It also alleged that Father was a presumptively unfit parent under K.S.A. 38-1585(a)(2) because he had twice been convicted of assault.

That same day the district court filed an ex parte order of custody finding an emergency existed that threatened J.A.H.'s safety due to the extreme hostility between his parents and Father's threats of absconding with him. The court placed J.A.H. in the custody of Kansas Social and Rehabilitation Services (SRS).

Two days later, on November 4, a temporary custody hearing was held. The district court appointed attorney Deborah Cox to represent Father and set a temporary custody hearing for November 7.

On November 7, Father failed to appear at the hearing. His counsel, Cox, requested a continuance on his behalf, but was denied. The district court entered an order of custody finding an emergency situation existed threatening J.A.H.'s safety because there was no parent available to provide a safe and stable environment. The court further found that returning J.A.H. home would be contrary to his welfare and authorized relative placement.

On November 21, Father called his attorney, Cox, reporting dissatisfaction with her representation. Later that day, Cox received a message from him requesting that she withdraw as counsel and expressing his desire to proceed as a pro se litigant.

On November 23, Cox filed a motion to withdraw as counsel, reciting the phone calls and messages "wherein he requested that counsel withdraw from his case, as [Father] wished to proceed as a pro se litigant." The court granted the motion that same day. The order recites, among other things, that "good cause has been shown in that the Father requests to continue pro se, and no longer requests the assistance of counsel."

On December 12 the district court conducted a pretrial hearing which Father attended. At the beginning of the hearing, the court ascertained that Father wished to proceed without counsel:

"THE COURT: [Father], you have the right to proceed in this matter pro se and that's entirely up to you. I would suggest to you that, unless you are law trained, you may be at a disadvantage in these proceedings. But you have the right to proceed without counsel. Is that your desire?

"[FATHER]: Yes, Your Honor."

The court also warned Father of the dangers of proceeding pro se:

"THE COURT: You understand that you'll have to comply with the rules of the Court. If you fail to file a Pretrial Questionnaire in its appropriate form you'll be precluded from calling ...


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