Hon. Kevin M. Smith
In the morning sow your seed, and in the evening withhold not your hand, for you know not which will prosper, this or that, or whether both alike will be good.
Applying this verse to appellate practice, savvy litigators know they must object to preserve issues, brief all possible issues, and, when all else fails, plead insufficiency of the evidence… something is bound to stick! This “everything including the kitchen sink” approach works in criminal, domestic, civil, and just about every area of appellate law. But for the Child In Need of Care (CINC) practitioner, a shotgun approach is not only ill-advised, but possibly fatal. This article considers the limited appeasable issues in CINC cases, and how this and other statutory provisions should influence the CINC lawyer’s representation of his client.
The right to appeal is statutory not constitutional. In the CINC code, K.S.A. 38-2273(a) provides for appeal “from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.” Moreover, although one may appeal a non-lawyer district magistrate’s order to the district court, you may do so only if the order is appealable under 38-2273(a).
Consider how Kansas courts have applied this restricted right to appeal under the CINC code. Appellate courts lack jurisdiction to review district court orders that: • Change placement of child after parental rights are terminated;
• Concern Kansas Department of Children and Families (DCF) placement with potential adoptive families;
• Deny state’s motions to terminate parental rights; and
• Involve an appellant who isn’t listed as an interested party in the statute regardless of relation to the children, and court has not granted interested party status.
Why such limitations? Unlike other areas of law, the focus of the case—the child—does not allow years to work through legal issues. Time passes much more quickly for children, and such “child time” demands permanency, i.e., for a child to know a “forever home,” sooner rather than later.
It’s the lawyer’s job to know what is and isn’t appealable
Kansas Rule of Professional Conduct 1.1, Competence, provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.3, Client-Lawyer Relationship: Diligence, provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Considered together, representing CINC clients should always demand that the lawyer approach each pending hearing as if it were the client’s last chance for relief and not anticipate asking an appellate court for relief. This rule of thumb applies in CINC cases more so than in others where, at a minimum, the lawyer can argue “insufficiency of the evidence.” If the case doesn’t ft into K.S.A. 38-2273(a)’s appealable issues, it truly is the client’s last chance. When the aggrieved party is a grandparent or other relative who may never see the child again, casting blame on the judge or lawmakers responsible for this restricted right to appeal won’t suffice. Their only chance for justice, one that won’t help them gain custody of the child, might be to sue their lawyers for malpractice or file ethics complaints.
The CINC lawyer must prepare for each hearing as if it were the client’s last. Te lawyer must also know the hearing outcomes that are appealable as well as the burdens of proof and standards of appellate review to preserve the client’s issues for appeal and to help the court obtain permanency for the child without undue delay. Finally, parents’ lawyers must be prepared to help their clients make hard choices when such choices are in their own best interests.
Prepare for every hearing as if it were the client’s last, because it might be.
CINC cases involve multiple stakeholders: the Kansas Department of Children and Families (DCF); the contractor who works the case, such as Saint Francis Community Services (SFCS), Kaw Valley Cooperative (KVC), Youth ville, or whatever contractor DCF chooses to represent its interests; the District or County Attorney; the Guardian Ad Litem; the Court Appointed Special Advocate (CASA) volunteer; parents’ lawyers; grandparents’ lawyers; foster or adoption families; foster or adoption family lawyers; and perhaps even an Indian tribe representative. Suffice to say there are lots of moving parts in every CINC case.
Add to the above stakeholder mix the parties who write reports that are necessary for the court to make mandated findings. Such documents include: DCF or contractor’s reports. These include the case worker’s assessment and recommendations. Te case worker is the key witness in all hearings and lawyers need these reports to prepare for cross-examination of the worker, as well as direct examination of witnesses who will contest the worker’s conclusions.
Therapist reports. Obtaining these reports—if a lawyer represents anyone but the child—begins with ensuring that the court orders parties to sign medical releases, so they can make demands for these reports, and issue subpoenas if the therapists don’t respond timely. Also, it’s best to request six weeks in advance so lawyers have time to serve subpoenas on the therapists. • Education advocate reports.
• Grade reports.
• Drug and Alcohol Treatment status reports.
• Court documents for pending and closed criminal cases, domestic cases, PFS/PFS cases, civil cases, etc.
• Police reports.
• Visitation reports.
• CASA volunteer reports.
It’s the lawyer’s job to get these documents and exhibits.11 If the judge needs to see them before making a ruling, the lawyer will need to know who to subpoena to lay foundation well in advance—the lawyer cannot assume the DA or other lawyers will do so!12 Many jurisdictions, including Sedgwick County, require these reports to be fled electronically in a social file so all lawyers have access prior to hearings and trial. Lawyers not accustomed to the court in question should check in advance whether such electronic discovery procedures are available. Also, a party can motion the court to apply civil rules of discovery to expedite the proceedings, so there’s no excuse not to obtain these records well in advance.14 If a lawyer does not and thereafter claims unfair surprise (especially if the hearing is post-termination), he may lose the case based on an issue that compliance with Rules 1.1 and 1.3 would have prevented. Te client won’t be able to appeal the outcome of such shoddy lawyering, and may decide to seek to hold the lawyer accountable for failing to represent the client effectively via a legal malpractice or ethics complaint. Remember, a party can only appeal an “order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.”15 This raises the stakes of every hearing.
Know the burden of proof and standard of appellate review for each stage of CINC litigation because it varies greatly from hearing to hearing and from case to case.
Assuming all essential reports and exhibits are in hand, and foundation witnesses are ready to testify, the lawyer must know the varying burdens of proof for “appealable” hearings in CINC cases, the Standards of Appellate Review, and that these will change depending on whether federal laws apply (such as the Indian Child Welfare Act (ICWA),16 which can also mandate additional findings.) For finality in the court’s rulings, the lawyer must ensure that the judge makes these findings to prevent reversal on appeal. 17
Te first hearing immediately following the state placing the child in police protective custody is temporary custody (TC), which must happen within 72 hours of the state taking the children into protective custody, “excluding Saturdays, Sundays, legal holidays, and days on which the office of the clerk of the court is not accessible.” K.S.A. 38-2243(f) states that: The court may enter an order of temporary custody after determining there is probable cause to believe that the: (1) child is dangerous to self or to others; (2) child i s not likely to be available within the jurisdiction of the court for future proceedings; (3) health or welfare of the child may be endangered without further care; (4) child has been subjected to human tracking or aggravated human tracking, as defined by K.S.A. 2017 Supp. 21-5426, and amendments thereto...