Opinion
No. 108,297.
2013-05-31
In the Matter of the Guardianship and Conservatorship of L.M.H., a Minor.
Appeal from Wilson District Court; Daryl D. Alhquist, Judge. John J. Gillett, of Chanute, for appellants/guardians and conservators, J.H. and E.H. Bret A. Heim, guardian ad litem, of Immel, Works & Heim, P.A., of Iola, for appellee L.M.H.
Appeal from Wilson District Court; Daryl D. Alhquist, Judge.
John J. Gillett, of Chanute, for appellants/guardians and conservators, J.H. and E.H. Bret A. Heim, guardian ad litem, of Immel, Works & Heim, P.A., of Iola, for appellee L.M.H.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee mother E.A.H.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, we have been asked to reverse the decision of the Wilson County District Court terminating a guardianship and conservatorship for L.M.H, a minor, thereby returning her to the custody of F.A.H., her mother. J.H. and E.H., respectively, L.M.H.'s paternal grandfather and aunt, were her conservators and guardians. They have appealed the district court's conclusion that F.A.H. is a fit parent eliminating the need for the guardianship and conservatorship. In reaching its fact-driven determination, the district court heard evidence for 3 days in late 2011 and early 2012. The district court's factual findings are supported in the evidence, and those findings warrant its legal conclusions. In making discretionary calls along the way, the district court did not step outside the wide latitude afforded those sorts of decisions. We affirm.
Factual and Procedural History
Little purpose would be served in recounting at length the factual and procedural background leading to this stage in the judicial process. The parties are fully familiar with that history, as are we now. Through their respective counsel, they developed a thorough record in the district court and have similarly presented painstakingly detailed briefs to us. We, of course, have reviewed those submissions and examined the record on appeal. During these proceedings, a guardian ad litem has represented L.M.H., and, in that capacity, he has provided another valuable perspective. What we outline here reflects an overview rather than an effort to exhaustively capture every assertion made by one side or the other or to document each dispute in the evidence.
In 2011, F.A.H. moved to terminate the guardianship and conservatorship for L.M.H. The focus of the hearing naturally fell on F.A.H. and her mother-daughter relationship with L.M.H. So we begin there. F.A.H. was born in Iran and is now about 37 years old. She emigrated from Germany to Texas when she was 18 years old and quickly moved to California. F.A.H. married D.H. in early 1999. He was considerably older than she. L.M.H. was born to the couple in late 2000. The marital relationship was less than placid. During that time, F.A.H. worked off and on as a dancer in nightclubs. In March 2001, D.H. committed suicide. E.H.—D.H.'s sister—arranged a funeral service for her brother and recalls neither F.A.H. nor L.M.H. attending. F.A.H. indicated she had been estranged from D.H. at that point and was unaware of the service. E.H. testified that she largely blames F.A.H. for the marital discord and, in turn, D.H.'s death.
F.A.H. and L.M.H. returned to Texas and settled in Austin where members of F.A.H.'s family lived. F.A.H. continued working as a nightclub dancer. In Austin, she struck up an acquaintance with a vice-president for a prominent bank, who helped her finance a sports bar. The pair then set up what they ostensibly billed as a NASCAR team, but it apparently was funded with fraudulently obtained bank loans. The scheme unraveled around 2003, and F.A.H. was charged in federal court in Texas with conspiracy to commit fraud. She entered a plea in January 2004. But before her sentencing, F.A.H. fled the country with L.M.H., apparently traveling to Mexico and then settling in the Middle East. In 2007, F.A.H. and L.M.H. returned to the United States. On their arrival in New York City, F.A.H. surrendered to federal marshals. R.N., F.A.H.'s sister, took physical custody of L.M.H. there, and they went to R.N.'s home in Lake Belton, Texas.
F.A.H. later testified that while in the Middle East, she worked typical business hours for two real estate companies in Dubai and hired a nanny to watch L.M.H. But L.M.H. recounted a different experience in which she had a series of nannies, her mother worked nights, and there were different men in the home frequently.
In the meantime, in 2005, J.H. and his wife S.H. had themselves appointed as guardians and conservators for L.M.H. by the Wilson County District Court. Since then S.H. died. E.H. was substituted for her in the guardianship and conservatorship.
F.A.H. appeared for sentencing in federal court in Texas in June 2007 and received a term of 40 months in prison and was ordered to pay over $350,000 in restitution. L.M.H. lived with R.N. for about a year and maintained regular contact with J.H. and E.H. L.M.H. also visited her mother in a federal prison in Texas. In April 2008, R.N. turned physical custody of L.M.H. over to J.H. and E.H. From that point, L.M.H. lived with E.H. in Fredonia. E.H. has a doctorate in childhood development psychology and believed L.M.H. would benefit from counseling. L.M.H. began seeing a therapist. According to the therapist, L.M.H. had trouble adjusting to living in Wilson County and attending school due primarily to a chaotic existence overseas and then being largely isolated from her mother. E.H. testified that L.M.H. said F.A.H. struck her and yelled at her while they were living in the Middle East.
In November 2008, E.H. filed a petition in Wilson County District Court to adopt L.M.H. and to terminate FA.H.'s parental rights. The district court tried that matter for 3 days in May 2009. F.A.H. had appointed counsel and participated in the proceeding by video conference from a federal prison in Texas. The district court hearing the adoption issued written findings of fact and conclusions of law on September 18, 2009, denying the adoption and refusing to terminate F.A.H.'s parental rights. In that case, the district court received a report from L.M.H.'s therapist and interviewed L.M.H. in addition to hearing testimony and reviewing other documentary evidence. L.M.H.'s guardian ad litem also participated in the adoption case. By agreement, the parties incorporated the evidentiary record from the adoption proceedings as part of this case.
The district court's factual findings in the adoption proceedings essentially parallel what we have summarized here. The district court noted that F.A.H. was not a United States citizen and her immigration status was, at best, unclear because of her federal conviction. The district court spoke with L.M.H. in chambers. Based on that conversation, the district court found that L.M.H. recalled F.A.H. hitting her with an open hand “whenever I did something wrong.” L.M.H. said she was not afraid of her mother and the “spankings”—L.M.H.'s term—didn't hurt for very long. She also said F.A.H. yelled at her frequently. The district court found that L.M.H. “showed no fear, apprehension or emotional distress” in describing her mother's actions. The district court declined to characterize F.A.H.'s conduct as a product of “frustration [or] anger or [done] for disciplinary reasons.” When asked if she would prefer to live with E.H. or F.A.H., L.M.H. first replied, “both,” according to the district court's findings. Pressed further, L.M.H. then said her mother but later indicated E.H.
The district court also entered lengthy conclusions of law that we do not recount here. Ultimately, the district court found that E.H. had not carried her burden to show by clear and convincing evidence that F.A.H. was an unfit parent under Kansas law. The district court noted the continuing mother-daughter bond between F.A .H. and L.M.H, and praised E.H.'s assistance to L.M.H. E.H. did not appeal the adoption ruling. At the same time, the district court formally ordered that the guardianship and conservatorship remain in place, so L.M.H. continued to live with E.H.
In early 2010, F.A.H. was transferred from federal prison to the custody of Immigration and Customs Enforcement. ICE released her in December 2010. The record indicates that because F.A.H. had converted from Islam to Catholicism, she would be in danger were she deported to Iran. An immigration judge, therefore, determined F.A.H. could stay in this country as a resident alien. F.A.H. remains under federal court supervision at least through the end of 2013 as a result of her criminal conviction.
On September 7, 2011, F.A.H. filed her motion with the district court to terminate the guardianship and conservatorship and, thus, to regain custody of L.M.H. Because the parties stipulated to the record in the adoption proceeding, they augmented those historical facts and focused on what had happened since mid–2009. The district court judge hearing F.A.H.'s motion did not preside over the adoption request. The record, however, demonstrates the judge's familiarity with the evidence developed in the adoption case.
During the hearing on her motion, F.A.H. testified that she had rented a two-bedroom apartment in Austin, Texas, near the public school L.M.H. would attend. She said she had spoken with the school principal about L.M.H. A number of F.A.H.'s siblings and her mother live in the area; they would, according to F.A.H., provide a support network to her and L.M.H.
F.A.H. testified that while she was in federal prison, she took parenting classes that gave her better insight into meeting the needs of L.M.H. F.A.H. told the district court she took other courses. F.A.H. acknowledged she had made significant mistakes and represented that she had learned from them. F.A.H. also discussed her religious conversion and described her volunteer “ministry” work with a Catholic organization.[
The parties have argued over whether F.A.H. improperly claimed to be a minister in the sense of an ordained cleric or simply described herself as engaging in lay ministry in the sense of ministering or being of service to others in the name of God. They have similarly sparred over other details in this case. For example, they offer differing characterizations of the dancing F.A.H. performed in the nightclubs. And they argue over whether F.A.H. sold the rights to her life story or reneged on a deal to do so. The district court heard and sorted through the evidence on those matters.
After her release from custody, F.A.H. got a job in a department store that is part of a regional chain and had received a promotion. She works customary business hours Monday through Friday. The position includes health insurance that would cover L.M.H.
The evidence showed that as one of L.M.H.'s guardians, E.H. strictly regulated and curtailed communication between mother and daughter. E.H. initially permitted telephone calls limited to about 5 minutes. But E.H. required L.M.H. be on a speakerphone so she could monitor the conversations. E.H. also tape recorded them. There were less than half a dozen calls. During the last one in February 2011, E.H. tried to end the call, prompting F.A.H. to yell at her because she wished to visit with L.M.H. longer. As a result, E.H. arranged no additional telephone calls. At the hearing, E.H. implied that she left the decision to L.M.H. and that L.M.H. showed little interest in talking with F.A.H.
E.H. allowed F.A.H. to send her e-mails to be forwarded to L.M.H. F.A.H. frequently received reply e-mails. But she testified they were often long delayed, and she suspected E.H. composed at least some of them based on the word usage.
After her release from federal custody, F.A.H., thus, had limited contact with L.M.H. At the hearing, F.A.H. acknowledged she had not contributed any money for L.M.H.'s support but had sent cards, gifts, school supplies, and clothing, often in conjunction with a holiday or L.M.H.'s birthday. As with some of the other evidence, the parties debated the extent of the gift-giving, and E.B. questioned the propriety of some perfume F.A.H. sent L.M.H. for Christmas.
L.M.H.'s therapist testified during the motion hearing and told the district court L.M.H. had displayed signs of increased anxiety as the court date approached. According to the therapist, L.M.H. expressed concerns about being uprooted and leaving friends and family in Fredonia. The therapist testified L.M.H. likely would have some adjustment problems if she were reunited with F.A.H. in Texas. But she suggested they would be temporary if L.M.H.'s environment in Texas were stable.
During the hearing, the district judge interviewed L.M.H. without the parties or their counsel present. L.M.H.'s guardian ad litem, however, was there. In that meeting, L.M.H. described F.A.H.'s physical handling of her as much more aggressive than she related in the adoption hearing. L.M.H said F.A.H. often struck her with clenched fists and routinely yelled at her. L.M.H. said she didn't mention that conduct before because she had not yet become accustomed to living in Fredonia. L.M.H. told the district court she hated F.A.H. and no longer wanted to talk with her on the telephone or to have any other contact with her. The district court suggested to L.M.H. that she had expressed a different opinion at the adoption hearing. L.M.H. responded that she did not know why she did not want to visit with F.A.H. now. L.M.H. also claimed it was her idea to use a speakerphone and tape recorder during the telephone calls with F.A.H. L.M.H. suggested F.A.H. had lied about being a minister. L.M.H. told the district court her grandmother had been an ordained minister. At one point during the meeting, the district court told L.M.H. that she “sounded a lot like [E.H.'s lawyer]” and asked whether she had discussed her grandmother's ministry with E.H. or the lawyer—comments that figure in the issues on appeal.
On May 14, 2012, the district court filed a 23–page decision granting F.A.H.'s motion to terminate the guardianship and conservatorship of L.M.H. and restoring legal custody of L.M.H to F.A.H. The extensive findings of fact essentially lay out what we have summarized here, including a recapitulation of the adoption proceeding. The district court found that E.H. “was motivated to minimize and limit the relationship between [F.A.H.] and [L.M.H.], after the adoption was denied.” The district court also found that L.M.H. “is clearly currently more bonded with [E.H.], her current school placement, her friends in the community of Fredonia and is happy in her current placement and has no desire for a change.”
The district court concluded that F.A.H. was “ready, willing, able and desirous of parenting and meeting the essential needs of [L .M.H.] if custody is returned to her.” As the district court noted, a finding of unfitness would serve only as a basis for denying the motion to terminate the guardianship and conservatorship and would not effect the legal severance of the parental relationship. Based on representations of counsel at oral argument, we understand L.M.H is living with F.A.H. in Austin.
E.H. and J.H. have timely appealed.
Issues on Appeal
E.H. and J.H. assert five points on appeal. The points cover widely varying claims of error entailing varied standards of review. Rather than attempting to summarize the claims, we simply address them separately in the order they have been presented in the briefing.
Sufficiency of the Evidence
E.H. and J.H. contend the evidence showed F.A.H. to be an unfit parent and, therefore, the district court erred in terminating the guardianship and conservatorship. They also say the district court should have explicitly considered L.M.H.'s “best interests” in making those determinations.
As provided in the statutory scheme governing guardianships and conservatorships, an interested person may request “the court find that the ward ... is no longer in need of a guardian or conservator” and terminate those protective relationships. K.S.A. 59–3091(a). The statute directs the district court to hold a hearing on the request and to terminate the guardianship or conservatorship if it “does not find, by clear and convincing evidence, that the ward ... is in need of a guardian or conservator.” K.S.A. 59–3091(h). Although phrased in the negative, the statute effectively requires the district court to terminate a guardianship or conservatorship unless it finds by clear and convincing evidence the protection should continue. That placed the burden of proof on E.H. and J.H. to show that L.M.H. continued to require that protection. More important, however, is the evidentiary standard they had to meet by marshalling clear and convincing evidence for continuing the guardianship and conservatorship. That is a comparatively strict level compared to the typical civil standard of a preponderance of evidence. In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008) (clear and convincing evidence is “an intermediate standard” between preponderance of evidence and beyond a reasonable doubt). The standard requires that any necessary facts be proven to be “highly probable” and applies whenever a statute or common-law rule demands clear and convincing evidence of a proposition. See 286 Kan. at 696, 697–98.
The B.D.-Y. decision substantially changed how the Kansas courts are to evaluate clear and convincing evidence. As part of that change, the decision revised appellate review of a finding proven by clear and convincing evidence: The reviewing court asks whether considering all of the evidence “ ‘in a light most favorable to’ “ the prevailing party, it is convinced that a rational fact-finder could have determined the contested proposition to be “ ‘highly probable.’ “ 286 Kan. at 705–06. The appellate court cannot weigh conflicting evidence, pass on the credibility of witnesses, or otherwise redetermine questions of fact. 286 Kan. at 705. Because clear and convincing evidence reflects a heightened degree of proof, the court drew on and tailored the settled standard of appellate review applied to sufficiency of the evidence in criminal cases, where the State must prove its claims beyond a reasonable doubt.
But the standard announced in B.D.-Y. does not apply in this case. We have not been asked to review a finding the district court determined had been proven by clear and convincing evidence. That would be true if E.H. and J.H. had prevailed in showing the guardianship and conservatorship ought to be continued, and F.A.H. had appealed. But E.H. and J.H. failed to prove that proposition by clear and convincing evidence. The B.D.-Y. decision doesn't address how an appellate court should review a challenge to a district court finding that a party has failed to satisfy that burden of proof. Kansas criminal law offers no comparable analog because the State cannot appeal an acquittal—a failure to satisfy its burden of proof—whether based on a jury verdict or a court finding. See K.S.A. 22–3602(b); State v. Coppage, 34 Kan.App.2d 776, 779, 124 P.3d 511 (2005).
When considering a standard of review, we recognize an appellate court owes great deference to the factual findings of a district court and generally will not disturb them, especially when they rest on credibility determinations. By statute, in an action tried to the district court, “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” K.S.A. 60–252. Only a finding without any substantial support in the evidence may be rejected as clearly erroneous. See In re Estate of Bolinder, 19 Kan.App.2d 72, 74–75, 864 P.2d 228 (1993) (substantial evidence would permit a reasonable person to accept the conclusion it supports), rev. denied 254 Kan. 1007 (1994). As the Kansas Supreme Court has pointed out: “In evaluating the evidence to support the district court's factual findings, an appellate court does not weigh conflicting evidence, evaluate witnesses' credibility, or redetermine questions of fact.” Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). The federal appellate courts have used a comparable clearly erroneous standard to review district court findings that a party failed to prove a factual matter by clear and convincing evidence. See United States v. Gilgert, 314 F.3d 506, 515–16 (10th Cir.2002); Critikon, Inc. v. Becton Dickinson Vascular Access, Inc., 120 F.3d 1253, 1259 (Fed.Cir.1997). We, therefore, deploy a clearly erroneous standard here.
In short, the appellate standard necessarily insulates the district court's factual findings resting on witness testimony and other disputed evidence, as it should. The district court has had the opportunity to observe the witnesses as they testified, an especially powerful vantage point entirely lost on appellate review. The judicial process treats an appearance on the witness stand, with the taking of an oath and the rigor of cross-examination, as perhaps the most discerning crucible for separating honesty and accuracy from mendacity and misstatement. See State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (“[T]he ability to observe the declarant is an important factor in determining whether he or she is being truthful.”).
E.H. and J.H. are not entitled to any more favorable a standard of appellate review on the sufficiency of the evidence.
They have contended throughout these proceedings that the guardianship and conservatorship for L.M.H. should be continued because F.A.H. is unable or unfit to parent her daughter. As this court has recognized, the statutes governing guardianships and conservatorships shed light on what constitutes parental unfitness justifying that sort of protection for a minor. In re Guardianship & Adoption of H.C, No. 105,357, 2012 WL 687074, at *5 (Kan.App.2012). Thus, a minor may be considered in need of a guardian if he or she lacks “appropriate alternatives for meeting [his or her] essential needs.” K.S.A. 59–3051(f). Those essential needs entail “physical health, safety, or welfare,” K.S.A. 59–3051(b), and specifically include “shelter, sustenance, personal hygiene or health care, and without which serious illness or injury is likely to occur.” K.S.A. 59–3051(i). See K.S.A. 59–3051(g), (h) (in need of conservator “for managing [a minor's] estate,” and what that entails).
Those circumstances focus on the conditions or environment of the potential ward absent a guardianship or conservatorship. Here, that would refer to L.M.H.'s situation if she were returned to the legal and physical custody of F.A.H. at the time of the hearing. The standards look at F.A.H.'s present ability to provide the essentials of a place to live, food, health care, and a demonstrably safe overall environment. In the case of a minor, “welfare” presumably would also include some measure of nurturing and guidance. In surveying the meaning of parental unfitness developed in judicial decisions, the Kansas Supreme Court suggested a comparable conclusion in In re Brooks, 228 Kan. 541, 546–47, 618 P.2d 814 (1980), a case the district court mentioned. There, the Kansas Supreme Court found the term “unfit” to embrace unsuitability and incompetence, often associated with moral delinquency. 228 Kan. at 546–47.
For purposes of considering the continuation of the guardianship and conservatorship, the district court's focus must be on the statutory factors in K.S.A. 59–3051. If F.A.H. were unable to provide those necessities, she ought to be considered unfit or unsuitable to take custody of L.M.H., requiring the continuation of the guardianship and conservatorship.
E.H. and J.H. cite the statutory factors for determining unfitness warranting judicial termination of parental rights as set forth in K.S.A.2012 Supp. 38–2269. Although K.S.A.2012 Supp. 38–2269 may provide some general guidance to a district court considering a request to dissolve a guardianship and conservatorship of a minor, that statute does not control that determination or supply the fixed standard to be applied. Both permanently severing parental rights and a finding of unfitness for that purpose present legal questions different from the one here, and those inquiries involve an independent statutory scheme. The criteria in K.SA.2012 Supp. 38–2269 generally consider characteristics of the parent, rather than the social or domestic environment of the child. For all of those reasons, the statutory measures in K.S.A.2012 Supp. 38–2269 ought not be incorporated by rote into guardianship and conservatorship issues governed by K.S.A. 59–3091. Had the legislature intended the intermingling of those distinct statutory schemes, it would have so indicated. See, e.g.,K.S.A.2012 Supp. 38–2347(f)(4) (provides in certain juvenile adjudications, the offender must be afforded a jury trial, the effective assistance of counsel, and “all other rights of a defendant pursuant to the Kansas code of criminal procedure”). While the factors in K.S.A.2012 Supp. 38–2269 may be informative here, they are not legally controlling.
Kansas has long recognized the parental preference doctrine, requiring courts to favor placing a child with a parent rather than a third party absent a judicial determination of unfitness. In re Guardianship of Williams, 254 Kan. 814, 819, 869 P.2d 661 (1994). The preference derives from and serves the fundamental constitutional right parents have in raising their children. 254 Kan. at 819–21; see Troxel v. Granville, 530 U.S. 57, 65–66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (outlining the fundamental liberty interest parents have in raising their children protected in the Fourteenth Amendment to the United States Constitution). The parental preference doctrine also figures in the law to be applied here, as the district court recognized. If a district court finds a parent to be fit, then the parental preference doctrine mandates placement of the child with the parent rather than a third party absent some extraordinary countervailing reason. See Williams, 254 Kan. at 828. The doctrine does not guide the district court in finding a parent fit or unfit but in placing the child upon a finding of fitness. Even if placement with a nonparent were to result in far greater financial advantages or other opportunities for the child, the law directs that a fit parent must be allowed to raise his or her child.
In keeping with that doctrine, the Williams court recognized that the “best interests” of the child do not factor in the determination of parental unfitness for purposes of continuing a guardianship for a minor. See 254 Kan. at 826–28. If a district court finds a parent fit, the parental preference doctrine rather than the child's best interests governs termination of a guardianship or conservatorship and mandates return of a minor ward to his or her parent. 254 Kan. at 828. E.H. and J.H., in part, argue that L.M.H. simply would be better off with them than with F.A .H. and the district court failed to factor that reality into its decision. Even if their supposition were correct, Kansas law is otherwise. As between a third party and a parent, both of whom are fit, the law requires that a child be placed with the parent.
Those legal principles, then, frame the challenge to the sufficiency of the evidence supporting the district court's decision to end the guardianship and conservatorship. The question on appeal is whether the district court clearly erred in finding that E.H. and J.H. failed to present clear and convincing evidence that the guardianship and conservatorship should have been continued. E.H. and J.H. argued the arrangement should be maintained because F.A.H. was an unfit parent, so the issue really boils down to that contention. In short, the district court had to determine F.A.H.'s capacity as a parent at the time of the hearing.
In assessing the point, we do not repeat the evidence presented to the district court and summarized earlier in this opinion. The evidence certainly showed that F.A.H. had exercised extremely poor judgment at various points in her life and at least some of those bad decisions adversely affected L.M.H. But the evidence also showed that F.A.H., after her release from prison, took significant steps toward righting herself and living within what might be considered societal norms. F.A.H. secured gainful employment, found suitable housing for herself and L.M.H., and looked into appropriate schooling for her daughter in Austin. Those efforts reflect a marked change from F.A.H.'s conduct before her imprisonment and may show genuine penitence and rehabilitation. What F.A.H. presented to the district court regarding her present circumstances also satisfies the statutory standards to show that L.M.H. would no longer need a guardianship and conservatorship if she were returned to her mother's legal and physical custody. That is, record evidence showed F.A.H. is now a fit parent.
To counter that evidence, E.H. and J.H. essentially argue that F.A.H.'s conduct before going to prison necessarily casts real doubt on her candor and sincerity. They say F.A.H. is merely engaging in another ruse, consistent with how she conducted herself for years. And they say her conduct was sufficiently bad that her proclamations of reformation should be discarded. Ultimately, however, those arguments go to weighing the evidence and, in particular, to credibility determinations. The district court is entrusted with those decisions. After hearing the witnesses testify and otherwise considering the evidence, the district court has chosen to credit F.A.H.'s representations that she has changed for the good. The district court, in its role as fact-finder, is uniquely positioned to make those assessments and reach those conclusions. On appeal, we cannot replicate that perspective and, therefore, may not reweigh the record evidence. We are bound to look at the evidence in a light favoring the district court's findings.
Given the district court's factual determinations, there was sufficient evidence in the record to show that F.A.H. would provide for L.M.H. in a manner that would more than satisfy the requirements of K.S.A. 59–5051. In turn, the district court properly found F.A.H. to be a fit parent. Especially coupled with the parental preference doctrine and its constitutional underpinnings, the evidence supports the district court's legal conclusion that E.H. and J.H. had failed to show the guardianship and conservatorship remained legally appropriate or required. In short, there was sufficient evidence for the district court to reach the conclusion that it did in terminating the guardianship and conservatorship, thereby returning custody of L.M.H. to F.A.H. The challenge E.H. and J.H. present on appeal to the sufficiency of the evidence really would require this court to independently weigh that evidence and to make credibility determinations at odds with what the district court has done. This court cannot properly indulge that invitation.
In coming to that conclusion, we do not slight the care and love E.H. and J.H. have given L.M.H. She obviously has fared well in their custody. What E.H. and J.H. have done for L.M.H is more than commendable. But the law confers on a mother a fundamental right to parent her child, so long as she has the capacity to do so in a way that affords the child a safe and sound home life. That law does not yield even if others might be willing and able to provide the child with far more lavish material benefits or greater intangible support. Nor does it yield to the child's desire to live apart from a fit parent. See In re M.M.L., 258 Kan. 254, 268–69, 900 P.2d 813 (1995). In this case, the district court conscientiously heard and evaluated the evidence and its conclusion is supported by that evidence.
Application of Parental Preference Doctrine
E.H. and J.H. contend the district court overemphasized the parental preference doctrine and, as a result, effectively declined to consider whether F.A.H. was an unfit parent. In making their argument, E.H. and J.H. expressly incorporate the substance of their position on insufficiency of the evidence and rely on the same authority. The point, therefore, looks to be a repackaging of the insufficiency argument as a legal question. We treat it that way and exercise unlimited review on appeal. See Deeds v. Waddell & Reed Invst. Mgmt. Co., 47 Kan.App.2d 499, 502, 280 P.3d 786 (2012) (questions of law subject to unlimited review on appeal).
In attempting to set up their argument, E.H. and J.H. say the district court stated that it could not decide parental fitness. The record plainly shows otherwise.The district court addressed parental fitness and explicitly concluded that F.A.H. was “not an unfit parent.” The district court correctly pointed out that the termination of F.A.H.'s parental rights was not at issue in this case. If she had been found unfit, the guardianship and conservatorship for L.M.H. simply would have been continued. But F.A.H.'s legal rights as L.M.H.'s mother would have remained intact. E.H. and J.H. seem to blur the distinction between unfitness as a parent and termination of parental rights. As a result, they misconstrue the district court's framing of the issue—F.A.H.'s fitness for the limited purposes of continuing or terminating the guardianship and conservatorships—with an unwillingness to fully consider fitness as an issue at all. The district court did consider the issue. It found that E.H. and J.H. failed to present clear and convincing evidence for continuing the guardianship and conservatorship and, thus, to support their premise that F.A.H. was an unfit parent.
More particularly, E.H. and J.H. seem to argue that in “extraordinary circumstances,” a district court may disregard the parental preference doctrine in considering unfitness. They point to Williams as authority for that proposition. Their argument, however, is difficult to follow. And it misreads the decision. The Williams opinion does not call for using parental preference in determining fitness to parent. And the district court didn't base its finding of F.A.H.'s fitness on that preference. As we have already discussed, Williams deploys the parental preference doctrine in considering placement of a child with a parent otherwise found to be fit rather than with a third party. 254 Kan. at 828. The opinion does suggest that in some sort of “highly unusual or extraordinary circumstances,” a district court might set aside the parental preference doctrine and place a child with a third party rather than with a fit parent. 254 Kan. at 828. Other than acknowledging that abstract possibility, the Williams court neither defines those extraordinary circumstances nor ventures any examples. In that case, the court enforced the parental preference doctrine and reversed the district court's ruling declining to return custody of a child to a parent found to be fit. Given the fundamental constitutional right protected through the parental preference doctrine, we are loath to speculate about just when fit parents might be judicially denied custody of their children.
We gather E.H. and J.H. also argue that this case amounts to the exceptional one in which the parental preference doctrine ought to be discarded even though F.A.H. might be fit to parent L.M.H. The district court expressly found the factual circumstances did not warrant abandonment of the parental preference doctrine. On this score, their position really presents a variant of the sufficiency argument and is similarly dependent upon the factual determinations of the district court. E.H. and J.H. rely on the evidence of F.A.H.'s misdeeds and bad judgment. But just as the district court weighed that evidence, including the credibility of the witnesses, and found it insufficient to demonstrate F.A.H.'s unfitness, the district court did the same in concluding the parental preference doctrine should govern here. We are no more inclined or empowered to upset that finding than we are the district court's finding of parental fitness.
Exclusion of Evidence
E.H. and J.H. argue the district court erred in excluding two suicide notes D.H. prepared just before his death in 2001—one is a single handwritten page and the other a much longer document prepared and stored on a computer. F.A.H. objected to the suicide notes on the grounds of relevancy, hearsay, and lack of foundation. The district court excluded the notes as irrelevant.
Relevance has two components: materiality and probativeness. State v. Houston, 289 Kan. 252, 261–62, 213 P.3d 728 (2009). Testimony or physical evidence is material if it bears on a disputed issue of legal significance in the case. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). Evidence is probative if it has some tendency to make a factual proposition more likely or less likely true. See K.S.A. 60–401(b); 286 Kan. at 505, 508. An appellate court reviews de novo a contested determination of materiality and reviews a finding on probativeness for abuse of discretion. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010). The admission or exclusion of hearsay is subject to review for abuse of discretion. State v. James, 48 Kan.App.2d 310, 323, 288 P.3d 504 (2012).
A district court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A district court errs in that way when its decision “ ‘goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ “ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Finally, a district court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012) (outlining all three bases for an abuse of discretion).
In general, an appellate court ought to hesitate in second-guessing a district court's evidentiary rulings in a contentious case tried without a jury. With those principles in mind, we turn to the district court's ruling on the notes.
In the longer note, D.H. recounts circumstances, including particular incidents, in which he says F.A.H. physically attacked him or otherwise humiliatingly battered him, as by spitting on him. D.H. reflects that he should have left F.A.H. but didn't. He says he contemplated suicide at least once before and has decided to kill himself without further delay. E.H. and J.H. contend those representations are admissible to show F.A.H.'s volatile or abusive character and to corroborate that she had physically abused L.M.H. after they had left the United States. The admissibility of the statements in the note poses two considerations. First, are the statements relevant? And if so, do they amount to inadmissible hearsay?
In analyzing relevancy, we ask whether D.H. could have testified at the hearing to the incidents memorialized in the notes. If a person's character trait is in issue, that trait may be proven by opinion, reputation, or specific instances of conduct. K.S.A. 60–446. But if character evidence is offered to prove a person's conduct on a particular occasion, then specific instance evidence other than a criminal conviction is inadmissible. K.S.A. 60–447. We suppose F.A.H.'s character trait for engaging in physically abusive behavior would be at issue in a proceeding probing her fitness as a parent. On that basis, D.H.'s in-court testimony would have been material to proving F.A.H.'s character trait generally. But the testimony would not have been material to proving her character for the purpose of showing she struck L.M.H. in anger rather than for disciplinary reasons on specific occasions. The testimony might have been admitted under K.S A. 60–455(b) as a civil wrong—battery—to prove F.A.H.'s intent in striking L.M.H., a subsidiary issue on which the district court didn't make a particular finding. Those considerations bear on materiality.
The question remains, however, whether D.H.'s testimony would have been probative, a determination entrusted to the district court's discretion. The controlling issue at the hearing was F.A.H.'s capacity to parent L.M.H. in early 2012. The incidents D.H. described would have taken place no more recently than March 2001. A district court reasonably might conclude that allegations of spousal abuse more than 10 years old would be insufficiently probative of a person's present ability to care for his or her child, especially in the absence of any contemporaneous reporting of the abuse to police or other authorities. See United States v. LeMay, 260 F.3d 1018, 1029 (9th Cir.2001) (court may consider “extent to which an act has been proved,” the lapse of time, and the frequency of such acts in weighing admissibility); cf. State v.. Vasquez, 287 Kan. 40, 52–53, 194 P.3d 563 (2008) (in husband's prosecution for murder of wife, court notes concern over remoteness in admitting evidence of his battery of wife 6 months before her death). Here, that conclusion also could be supported in light of F .A.H.'s later incarceration and rehabilitative efforts. For those reasons, we are not prepared to say the district court's ruling excluding the suicide notes in this case tried without a jury constituted an abuse of discretion on their probativeness of the controlling issues. The decision neither misapplies the law nor ignores pertinent facts. We do not believe the district court would stand alone in ruling as it did.
In addition, the suicide notes were likely inadmissible hearsay if offered for the purposes E.H. and J.H. describe. That provides an independent basis for their exclusion. The notes are out-of-court statements of D.H., and E.H. and J.H. were offering them to prove the truth of the matters asserted—F.A.H.'s purported physical abuse of D.H. To be admissible, the notes would have to fit within a hearsay exception outlined in K.S.A. 60–460. Three exceptions arguably might apply.
Before looking at those exceptions, we make several observations about hearsay. Hearsay is generally considered unreliable because the person making the statement—the declarant—does not appear in court. The declarant, therefore, avoids the principal mechanisms for measuring the candor and reliability of a witness: (1) the taking of an oath to tell the truth; (2) the rigor of cross-examination to test the statements; and (3) the fact-finder's opportunity to gauge demeanor. See State v. Becker, 290 Kan. 842, 846, 235 P.3d 424 (2010); United States v. Owens, 789 F.2d 750, 756 (9th Cir.1986), rev'd on other grounds484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988); Garza v. Delta Tau Delta Fraternity Nat., 948 So.2d 84, 89 (La.2006). Hearsay exceptions allowing out-of-court statements to be admitted for their truth commonly substitute other indicators of reliability based on circumstances related to the statement itself. See, e.g., Clark v.. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981) (“The basis for the business records exception is that accuracy is assured because the maker of the record relies on the record in the ordinary course of business activities.”).
Portions of D.H.'s notes arguably might be considered contemporaneous statements and, therefore, admissible under that hearsay exception. K.S.A. 60–460(d). The declarant's statement, however, must describe events occurring contemporaneously with or a short time before the statement. In the notes, D.H. discusses his immediate activities, and those statements might be admissible if otherwise relevant. But the interactions with F.A.H. he outlined do not fit within that time frame. They occurred much earlier, so the exception would not apply. See State v. Peterson, 236 Kan. 821, 830–31, 696 P.2d 387 (1985) (declarant's statement admissible when made within about a day of the events described).
For similar reasons, the exception for statements of declarant's present state of mind does not fit. K.S.A. 60–460(1). If a relevant issue were whether D.H. died from accidental causes or suicide, something that might be contested for life insurance coverage, the notes could be admissible for that purpose. But the exception explicitly does not apply to “memory or belief to prove the fact remembered or believed.” K.S.A. 60–460(1). Here, the notes were offered to prove facts D.H. purported to remember about his relationship with F.A.H., precisely what remains inadmissible under K.S.A. 60–460(1). See State v. Tennant, 394 S.C. 5, 15–16, 714 S.E.2d 297 (2011) (so construing comparable language in South Carolina's evidence rules).
Finally, the statements do not qualify as dying declarations of D .H. admissible under K.S.A. 60–460(e). For that exception to apply, the declarant must be conscious of his or her impending death and must believe there to be no hope of recovery. K.S.A. 60–460(e)(2). The Kansas courts have applied the exception when a person has been afflicted with what he or she reasonably believes to be a mortal wound or a final illness and then makes statements in contemplation of death. See State v. Jones, 287 Kan. 559, 564, 197 P.3d 815 (2008); Ritchie v. Metropolitan Life Ins. Co., 145 Kan. 525, 531–32, 66 P.2d 622 (1937) (declarant ill but not gravely so when statement made so exception inapplicable); State v. Barbour, 142 Kan. 200, 211, 46 P.2d 841 (1935); see also Garza, 948 So.2d at 91–92 (so noting in describing “classic” dying declaration). Here, those were not the circumstances. Although the notes indicate D.H. had decided to commit suicide, he had not yet suffered any injury, and his fate continued to rest in his own hands. That substantially diminishes the grounds for accepting a dying declaration as trustworthy. Many courts, therefore, decline to treat suicide notes as dying declarations for hearsay purposes. See Kincaid v. Kincaid, 197 Cal.App. 4th 75, 87–89, 127 Cal.Rptr.3d 863 (2011) (recognizing rule and citing supporting case authority); Garza, 948 So.2d at 93–95 (explaining diminished reliability of suicide notes as dying declarations and finding note to be inadmissible hearsay).
As to D.H.'s notes, the district court did not abuse its discretion in finding they lacked relevance in that they were not probative of the controlling issues. The notes were also inadmissible hearsay for the purpose for which E.H. and J.H. offered them.
As a second point, E.H. and J.H. contend that the district court refused to admit a letter F.A.H. wrote while she was in prison regarding her religious conversion and later posted on the Internet. But the record shows the district court admitted F.A.H's letter, so we do not further consider that argument.
Judicial Prejudice
E.H. and J.H. argue the district court displayed prejudice against them when interviewing L.M.H. As we noted, the parties and their counsel were excluded from the interview, but L.M.H.'s guardian ad litem was present. The interview was transcribed and made part of the record. E.H. and J.H. contend the district court's suggestion to L.M.H. during their discussion that she sometimes sounded like E.H. or the lawyer representing E.H. and J.H. betrays some sort of preconception or closed mindedness about the case.
District courts occasionally interview children outside the presence of counsel in divorce proceedings or cases like this one. How a district court conducts those sorts of interviews rests in the realm of judicial discretion. We, therefore, review for abuse of that discretion as to the manner of the questioning. But we have unlimited authority in assessing judicial prejudice or misconduct. State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010). In making that determination regarding a district court's remark or question, the reviewing court assesses the content and context of the challenged statement. 291 Kan. at 113.
Having looked at the transcript of the interview between the district court and L.M.H., we find no abuse of discretion and nothing indicating judicial bias or prejudice. The district court appears to have made an effort to gather information from L.M.H. without being confrontational or dismissive, as one might expect.
In talking with the district court, L.M.H expressed significantly changed and decidedly negative attitudes about F.A.H. and the possibility of being reunited with her as compared to what she said in the adoption proceeding. The district court asked L.M.H. about those changes and referred specifically to her earlier statements. L .M.H. also explained some of her opinions by referring to circumstances E.H. and J.H. were presenting as reasons that F.A.H. should be considered an unfit parent. The district court understandably (and discreetly) sought to learn if L.M.H. independently came to those opinions or was, to some degree, parroting what she had heard. We view the district court's comment about sounding like E.H. or the lawyer as one means of probing that area. The district court didn't try to dissuade L.M.H from those views and certainly did not criticize her for voicing them. The manner in which the district court spoke with L.M.H. did not amount to an abuse of discretion. We fail to see anything suggesting predisposition or prejudice on the district court's part in the remarks E.H. and J.H. highlight or in the overall interview.
The only other evidence of judicial prejudice E.H. and J.H. advance is a factual finding in the district court's memorandum decision stating F.A.H. “has also become a practicing Roman Catholic as well as what is termed a ‘minister’ with” a church organization. E.H. and J.H. contend the district court's use of quotation marks around the word minister indicates some kind of endorsement that F.A.H. acted as an ordained member of the clergy or some other form of improper partiality. Their position completely misconstrues what looks to be the obvious meaning of the finding. The district court was acknowledging the dispute in the evidence about F.A.H.'s characterization of her church work as ministry. Hence, the district court's phrase “what is termed” coupled with placement of quotations around minister—both of which connote something other than a strict dictionary definition. See The Chicago Manual of Style 7.55 (16th ed.2010) (quotation marks around a word or phrase may be used to alert the reader that the term “is used in a nonstandard ... or other special sense.”); Garner, Gamer's Modern American Usage 658 (2003) (quotation marks may indicate “so-called-but-not-really”). Contrary to recognizing F.A .H. to be minister or an ordained cleric, the finding conveys the district court's determination otherwise. E.H. and J.H. miss the mark by a far piece in arguing the finding demonstrates judicial prejudice against them.
Not to put too fine a point on it, we find absolutely no basis for imputing prejudice to the district court for the reasons E.H. and J.H. have advanced.
Reintegration Plan
E.H. and J.H. contend the district court abused its discretion in failing to order a reintegration plan imposing some unspecified counseling or other transition requirements before F.A.H. could assume legal and physical custody of L.M.H. Because K.S.A. 59–3091 allows the district court to order a guardian or conservator to take particular steps or fulfill specific duties in concluding their service, they reason comparable judicial control ought to extend to F.A.H. But they cite no statutory or case authority for their proposition.
A guardian or conservator has managed the affairs and assets of a ward or conservatee, so it makes sense for a district court to have broad authority to enter orders as may be necessary, depending on individualized circumstances, to wrap up those relationships. But F .A.H. is not similarly situated to guardians or conservators completing their work. She is a parent being reunited with her child. The district court found F.A.H. to be a fit parent, rendering the guardianship and conservatorship of L.M.H. legally unnecessary. The governing statutory scheme affords a district court no power to impose additional conditions for terminating the guardianship and conservatorship or on a parent assuming custody of a minor child as a result of the termination. In any given case, there might be some rough patches in the family reunification process. But those difficulties have been left to the family members to work out as they see fit.
The district court could not have abused its discretion in failing to exercise some authority or power it didn't hold in the first place. The point is without merit.
Conclusion
The parties vigorously contested who properly ought to have physical and legal custody of L.M.H. The district court heard extensive testimony and reviewed a great deal of documentary evidence. Based on that record, the district court rendered detailed findings and conclusions. The findings of fact have substantial support in the evidence, and, in turn, they provide a sound basis for the conclusions of law. We have been presented with no legal grounds to upset the district court's interlocking conclusions that F.A.H. is fit to parent L.M.H. and that the guardianship and conservatorship of L.M.H should be terminated.
Affirmed.