*1 1294) (640 P.2d 52,805 No. Terrance D.
In LaRonda Lett and the Interest of Jackson, of 18 Years. Age Children Under April Petition for denied 1982. review Opinion filed February 1982. Helms, Parsons, appellants. R. and L. Scott Richard for McQuin Gray, county Johnson, county attorney, Fred W. assistant attor- Charles Scott ney, Stephan, attorney general, appellee. and Robert T. for P.J., Before and Abbott, Swinehart, JJ. Rees appeal by This is an Ronald Diane Lett from and Swinehart, J.: County severing of the District Court of Labette judgment parental Lett, daughter of Ronald Lett to his LaRonda and rights her children Lett and rights Diane Lett’s LaRonda Terrance Jackson. 23,1976, Jackson,
Terrance born is the child illegitimate March Lett, and LaRonda August Diane Lett Charles Lamb. born Lett, the child of Diane and Ronald were married who August
On was a December LaRonda found to be Supp. to K.S.A. pursuant 38-802(g)(3), child on basis of Lett physically evidence to the effect that Ronald abused the child November when she was three months old. The that the hearing evidence at that indicated child had been se- verely beating beaten. Ronald admitted LaRonda because of anger self-pity, help and and that he was his getting stated with a problems. physical mental was born defect LaRonda birth hips, and prevents which affected both feet and her from very Upon deprived, that LaRonda finding mobile. being care, custody court ordered she remain control Services, Department of the Kansas of Social Rehabilitation Lett, child placed Diane the natural that should mother, immediately trial court be notified if Ronald was to Lett with Diane. The court both living resumed further ordered parents any counseling or education participate parenting deemed, SRS beneficial. classes placed back in subsequently Diane Lett’s home LaRonda supervision. urged The SRS Diane to under its obtain the SRS Start, Terrance in Head com- quarters, enroll independent living she could prepare budget plete parenting program, the STEP within, skills. improve housekeeping During her live *2 years, completed program Diane the STEP after following two reluctance, and inde- difficulty and she obtained considerable failed, however, at to a pendent quarters. adhering She living Start, and her improving Terrance in Head budget, enrolling housekeeping. December determination
Shortly after the child, a man and was deprived LaRonda a Ronald assaulted into the Osawatomie State Hos- voluntarily thereafter admitted pital inability treatment for his to control his where he received 1979, April temper. was released from Osawatomie Ronald where the SRS asked Ronald to seek and returned to Parsons more, if or needed. Ronald then started marriage counseling Martin, a psychologist. treatment with Dr. He continued Jack 1979, May through period treatment with Dr. Martin a of two months, dropped then out of contact. He next visited Dr. Martin episodes twice in 1979 after two violent with Diane. October of episode, The evidence reveals that in the first Ronald hid her when she a Diane’s home and confronted returned home from occasion, On the meeting. Witnesses’ second Ronald Jehovah window, a and took stick and broke out entered Diane’s home cornered her and Terrance. Ronald knocked Terrance out of proceeded Diane’s arms and chased Diane outside. Ronald then to kick her in Criminal were filed and charges the stomach. jail spent Ronald three months as result of this incident. He with Dr. Martin in subsequently resumed treatment March of 1980, thereafter, May the visits soon but discontinued 14,1980, County petition
On October was filed the Labette Attorney deprived to be a child and alleging Terrance Jackson parental rights for the severance of of Diane Lett and praying petition Charles Lamb. On November an amended her father grounds, adding filed on the same LaRonda Lett and Ronald Lett. 17, petition amended
Hearings were held on the on November December 1980. On December November parents trial all three unfit and severed their court found custody the SRS rights. The children were committed to have placed they which then them in foster home where appeal Ronald Lett trial remained since. Diane and court’s decision. is that trial Letts’ first contention of error court’s permit inadequate meaningful are history After action in its tracing procedural
review. this journal entry, the trial court concluded: December, day matter comes “Now on 4th the above entitled parental rights. ruling
final on the issue of severance putative Jackson, adjudges the father of Charles “The court finds and Terrance Lett, Lamb, the natural [sic] the natural father of Laronda Ronald Lett and mother, Lett, custody persons to have said Diane unfit children, hereby adjudged such.” as are The Letts that the court’s and conclu- contend First, the inadequate are for two reasons. trial court never sions deprived; just the children to specifically found it refers second, deprived children.” And Letts contend them as “said sparse incomplete. are too *3 165, Ixxxi, in Supreme provides part: Rule No. Kan. Court jury including judge a a “In all contested matters submitted to without motions required summary judgment, judge controlling the shall for state the facts 60-252, legal principles controlling (Emphasis the the K.S.A. decision.” supplied.) journal readily apparent entry the that the trial It is from court explicitly comply with the rule. present in the case did not above the which a support The trial court failed to set out facts would failed state the acts of “deprived” to additional finding parental which the bases the of unfitness neglect finding were however, parental Appellants, in the severance. which resulted at In v. Dodge, raise issue the trial court level. Burch did not P.2d Syl. 2, 608 this court held: App. 2d Kan. ¶ object inadequate findings litigant of fact and of law at “A to must them, opportunity give court an to correct or level as to the trial so necessary may presume all to appellate the trial court found the facts court support judgment.” the on, however, Syl. to hold at 3: court went The ¶ (225 requirements Court No. 165 K.S.A. Rule 60-252 “The review; appellate facilitating lxxii) part in the courts for are benefit support presumption that the trial review will not a court and when necessary support judgment, the case will be remanded the facts to found parties objected though even none of the and conclusions additional or in this court.” in the trial court either Lines, Inc., 226 Kan. Celco, v. Davis Van Inc. America See also (1979): Syl. ¶ court, objection first made in the trial omissions “In absence of an presumed judgment since the trial to have fatal will not be to necessary support judgment.” to all of the facts issue found adequate findings not make and con- the trial court did Since present case review clusions, function it is this court’s that the trial supports presumption it record to see whether necessary Burch support judgment. facts found all the 2d App. Dodge, (which present case commenced A review of the record for LaRonda on December deprived hearing original with the the final herein in December of hearing and continued until 1980), that the trial supports presumption that the record reveals Clear judgment. the facts its court found all presented finding which evidence convincing parent. testimony that Diane Lett was an unfit social to oversee the Lett case was based on assigned worker for the SRS simply home and indicates that Diane 108 visits made to the Lett to, sincerely fulfilling was not interested in made little effort or improve- had as its goal her SRS ultimate agreement which ability provide for her children in a fashion ment Diane’s society’s at least meet bare minimum standards of would supervision. care and testimony was clear and
The record further shows Lamb, Charles Terrance’s natural fa- concerning uncontroverted years that for more than three he had ther. The record indicates provide totally every respect failed Terrance with care, control, and education. This evidence as to subsistence unfitness, only supports finding Charles of his but Lamb not *4 support a his finding also is a factual which would that matter deprived this child within the neglect individual caused to be Supp. K.S.A. 1980 38-802. meaning of supports presumption that the trial court The record also necessary its that holding found all the facts Ronald parent. an unfit that the trial court’s Lett was Ronald contends parent clear and supported that he was an unfit finding evidence, and therefore the trial court erred in sever- convincing challenge his to LaRonda. Diane Lett does not ing rights sufficiency presented the evidence her unfit- concerning evidence, court will consider reviewing ness. In party pre- the evidence in the most favorable to the light who Bachelor, vailed at the trial court level. In re LaRonda, a Any parent consideration of Ronald’s fitness to infant, severely handicapped should start back in December of determined, admitted, when trial court and Ronald that physically he that LaRonda. evidence reveals abused Ronald had battered three-month-old LaRonda in such a fashion that child, severely when Diane discovered the LaRonda’s head was scratched, bloody. and was bruised and then swollen Ronald she court orders and the directions of the SRS not to make defied visits, physical and the results were family unsupervised incidents oc- Diane and Terrance These attacks on Ronald. time in the Osawatomie spent after Ronald had State curred a man in Ronald’s incon- after attacked Parsons. Hospital having already therapy program has participation in Dr. Martin’s sistent shape been outlined Ronald claims to in better above. be now temper, better able to his when on direct examination control but temper he he was asked whether able to control his been prescribed the medication quit taking since he bit, responded: “A temper, enable him to control his he little but asked, feel, Lett, you you Mr. that not much.” Later when “Do “That’s your temper responded: can not so control Ronald now?” easy say my ... I don’t want to lose control on for me to Terrance; my temper.” far I have but so not lost LaRonda temper “major that his still his Ronald also testified he considered him, he aggravate When the children do problem.” things against he outside and beats his head tree goes testified that system and then he walks around all the out get anger of his times, he returns. couple and he feels in control when block money man- testimony poor his concerning The court heard also Diane against the fact while he lived with agement and that filthy order, infested he the house allowed cockroaches, other vermin. rodents and clear and testimony we find that the trial court had
From parent unfit evidence to find Ronald convincing to take care of LaRonda. unable presumption
The record also children’s findings concerning the made the *5 that Terrance specifically did not find While the trial court status. deprived “said it refer to the children as deprived, did already in an earlier found proceeding children.” court deprived physical The trial court LaRonda to be based abuse. testimony Dr. Martin who stated that things heard the Jack were, they the children not reach their full remained as would a disadvantaged Dr. Martin also classified Terrance as potential. often evidence reveals that children were left child. The at times and inappropriately were clothed were unsupervised, improvement The situation little poorly disciplined. showed in and the hearing impending the first child from undoubtedly improve Diane’s third child would birth of children. status of other two failed to
While it is unfortunate trial court enter required by Supreme of fact and conclusions of law as lxxxi, Rule No. 228 Kan. we find that the record Court presumption that the trial made the judgment. App. its Burch v. 2d Dodge, The Letts also contend that the court erred in not exploring parental cite severing Appellants alternatives before to In rights. Atwood, (1978), App. re 2d for the that the trial court must no proposition find under reasonable circumstance can the welfare of the child served contin- relationship parent-child and the trial court must uation explore specifically eliminate alternative remedies before remedy parental the drastic In In imposing severance. re Brooks, 541, 550-551,
modified the least restrictive alternative as was set doctrine out Atwood: expressly stating, acknowledged “Without the court so Atwood doctrine judicially the least restrictive it into the We alternative construes statute. approve except language following the cited of Atwood for the sentence: ‘This test explore requires specifically the court to eliminate alternative remedies before remedy many imposing the drastic severance.’ In areas of the state agencies designed programs resolving
there are dozens of to assist families problems. require specifically reject explore, their To a court consider and each prior Certainly program is such termination unrealistic and could be disastrous. particular program proposed give if a as alternative the court should careful proposal. programs consideration Most of have much common and to any programs parents cooperate agency, be successful of these with the must keep appointments, improve life, family have a sincere must must their desire *6 willing accept counseling. and must be to carefully any “We conclude the test to be: The should consider better court party case, particular remedy proposed an alternative interested remedy rejected rejection. for The of the court should state its reasons such drastic parental rights the of should not be utilized unless court is satisfied termination realistic and so finds.” there is no alternative case, was present proposed In the no less restrictive alternative court, rejection was required. so no of the alternatives to note, however, actually We that several alternative solutions were parties the hearing, tried before severance and failed. SRS and the working closely proffered
been with counselors for subsequent child years two to LaRonda’s Tes- hearing. timony hundred the based over one home visits heard to possible remedy everything effect that the SRS did to the situa- We tion and had limited success. hold that the court did not severing appellants’ err in rights.
Affirmed. J., Having Burch 4 concurring: Dodge, authored
Abbott, 503, App.2d (1980), Kan. 1032 Í feel an 608 P.2d to obligation express duty- This additional rationale for decision. court is Supreme follow Court unless valid reason bound to decisions Supreme Court would reach different result exists to believe the the issue. nine months before if it were to reconsider Less than Celco, Supreme filed argued, the Court Inc. Burch Inc., 366, Lines, Kan. v. Davis Van 226 America members of this Although argued it has been some dicta, disputed question language in is the holding court that 2, in case which states: syllabus the law of the at is contained ¶ court, objection will not first made in the trial omissions “In the absence an presumed have all judgment court is to found fatal to a since the trial be support judgment.” necessary in issue facts to decision, Celco part with that of the I was troubled at first Rule Supreme in it did conflict Court appear to because however, I lxxxi). analyzed problem, (228 Kan. As I 165 in Burch at result and 507: fond of the end stated became Celco, Supreme America v. Davis Van recognize that Court Inc. “We (1979), appears Lines, Inc., held that a P.2d 188 have level, object inadequate findings at the trial and conclusions litigant must otherwise, them; appellate opportunity an gives the trial correct which court may presume facts found the trial court rule, judgment. appears good opportunity This to be a as it allows trial court an trial; by granting correct mistake a new and in the event a mistake was not made, speeds up judicial process by supplying the trial court additional appellate law conclusions of so that review can be had without the delay remanding, unnecessary expense litigants results judicial However, findings appellate wastes time. are also for the benefit of the courts, pointed Drotts, as the Court out in Henrickson v. where it stated: “ requirements ‘The of K.S.A. 60-252 and [now Rule No. 116 Rule No. of this court facilitating lxxii] are for benefit of this requirements rights parties review. Waiver of such within or the authority of the court below.’ any “The presume this case is not consistent with we could made, adequate the trial court thus the absence of of fact and law, judgment surcharges we vacate the insofar as it the trustee and findings. remand the case new [Cites omitted.]” Our trial extremely busy courts are and there is no relief in *7 sight. The work load in trial probability courts in all will continue increase, judicial to time will become even precious more to already an overextended trial bench. Having oppor- now had the tunity 1,000 participate to in more than appellate decisions, I am satisfied that in most instances the findings of fact from the trial spirit Supreme bench meet the are, Court Rule 165. There course, glaring exceptions to the foregoing nearly statement. In cases, all fact findings give parties adequate insight into how a Appellate however, decision was arrived at. judges, prefer clean surgically that any remove doubt on issue raised by enterprising counsel. The problem (and, is that this court extent, counsel) some trial deals in hindsight appeals, on whereas the trial court must deal reality; rarely trial judge sus- pects and, will appealed, so, decision what issues result, will be raised. As a the findings frequently do not cover the appeal issues raised on to the extent we would like. Trial judges do have time not available to every make findings concerning issue, conceivable every to force them to do so in case would only riot halt the exemplary they have achieved but also force them considerably present reduce their output.
The alternative is attempted to do what I to do Burch—and that is to have the best of two appellate worlds that courts adequate would have findings to aid in the case reviewing on appeal, trial and the courts have an opportunity to make would adequate findings without forced to make being unnecessarily cases. It long ones routine seemed to me when I authored Supreme Burch that the Court had that solution in mind when the decision was made in Celco. It seems place to me not to an undue burden the trial they question bar to tell them that if have adequacy concerning appeal of facts after the commenced, then, has the time clarify question is one years to two later when the case is remanded.
Remanding case to the trial court for is such waste rehearing of time for all concerned. The temporarily case is taken off our opportunity docket and we lose the dispose of a pending appeal. Three judges have read the briefs and examined the records; used, staff time has been and considerable time has been expended by appellate both our clerk’s officeand the district court clerk’s office. Then back comes the case on appeal, supported by record, new briefs to be decided one years or two later. This all results in the litigants being system, frustrated with the legal expenses and, my additional worst of all to way of thinking, a delay parties the prevailing what their receiving due. I see no distinction requests specific between whether trial counsel in an area in issue or whether an requests event, the same at a thing much later time. In either the trial judge will know the findings appeal, are material to the issue on justice will best be served judge being given opportunity to make that finding possible at the earliest date. would, however,
I urge accept Court to review of time, similar present panels or some case. At the some of this routinely court are cases remanding court for addi- tional findings of fact while others are following Celco and A Burch. decision reached in this court should not be governed composition panel that is assigned to hear and decide *8 particular that case. I dissent.
Rees, J.: find, upon jury judge “In all actions tried the facts without a . . . the shall orally state, 60-252(a). writing controlling and either or in the K.S.A. facts.” added.) (Emphasis jury judge judge “In all a contested matters submitted to without . . . the principles controlling legal controlling shall state the facts . . . and the the (Emphasis added.) decision.” Court Rule 228 Kan. IxxXi. record, jury may “Judges unlike a render an unreasoned of court of [165], verdict, milst, ‘go general and Rule on the decision in a under our statute is, assign . . . reasons for the line’ and render ‘reasoned decision’—that 338 P.E.C., Inc., University, 217 Kan. State v. Wichita Brown rendered.”
decision
added.)
(1975). (Emphasis
664-665,
P.2d 713
538
empowered to
the
the trial court is
one
legion
effect that
“Our cases are
witnesses,
credibility
the facts.
evidence,
and find
of
weigh
determine
controlling
duty
facts
set forth the
power goes
the concomitant
With that
128, 135,
Davis,
1096
515 P.2d
213 Kan.
principles
v. Estate
of law.” Read
of
added.)
(1973). (Emphasis
controlling
requiring expression of
the rules
tried
the court
“In civil actions
60-252[a])
principles
(K.S.A.
controlling
[Rule 165]
law
are
of
findings
of fact
mandatory
They
and should
integrity
are
designed
of
decision.
as an aid to the
Patrick,
772, Syl.
512
judge.”
v.
212 Kan.
fairly
¶
observed
Duffin
added.)
(1973). (Emphasis
P.2d
carry
inferentially
60-252],
judgment would
trial court’s
[K.S.A.
“Absent
Securities,
Key
appellee.”
v.
prerequisite findings
in favor of the
Clithero
fact
of
(1974). (Emphasis added.)
380, 385,
Inc.,
214 Kan.
Celco,
v.
placed upon
Inc. America
reliance is
Unfortunate
of
Lines, Inc.,
The text
Only controlling
It is
to resolve or state resolutions
required.
law are
legal principles
Extraneous
need not
questions
all fact
raised.
*9
responsibility
prevailing
be stated. It is a reasonable
counsel to
appeal.
see that the
affirmance on
An analogous
example
responsibility
rulings
is the
of counsel to see that
on trial
Ibarra,
objections are
Schlatter v.
made.
542 P.2d
This case
trial
should be remanded to the
court for
decision,
principles
fact and statement of
of law
controlling
(Remand
not for new trial.
of fact and
Davis,
of law
was ordered
Read v. Estate