Opinion
No. 112,147.
2015-02-27
In the Interest of Z.S. Year of Birth: 2009 A Female.
Appeal from Douglas District Court; Peggy C. Kittel, Judge.Craig A. Stancliffe, of Lawrence, for appellant natural father.Patrick J. Hurley, assistant district attorney, for appellee.
Appeal from Douglas District Court; Peggy C. Kittel, Judge.
Craig A. Stancliffe, of Lawrence, for appellant natural father. Patrick J. Hurley, assistant district attorney, for appellee.
Candice Farha, legal intern, and Bethany Roberts, of Kansas Legal Services, guardian ad litem.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
The Douglas County District Court terminated the parental rights of D.S. in June 2014 because he lacked the capacity to take care of Z.S., his young daughter, especially given the child's special needs. The district court found those circumstances were unlikely to change, reasonable efforts at reintegration had failed, and the best interests of Z.S. were served by severing the parent-child relationship and allowing the State to retain legal custody of her. D.S. has appealed on the grounds the district court both improperly took judicial notice of various documents at the termination hearing and improperly based its decision on his lack of financial resources. We see no basis to set aside the termination order and, therefore, affirm.
Factual and Procedural History
Z.S. was born to M.M. in 2009. D.S. and M.M. are not married but have lived together off and on. Z.S. was removed from M.M.'s custody in late 2011, while D.S. was residing with his parents. D.S .'s living arrangement was not considered a suitable placement for Z.S. M.M. has not contested the termination of her parental rights. Z.S. has been placed with maternal relatives during these proceedings.
D.S. began working on a reintegration plan that would allow him to assume legal and physical custody of Z.S. Although D.S. is of normal intelligence, he has uncorrectable learning disabilities. He reads at a second to fourth grade level and has a very difficult time retaining information provided to him. As a result, D.S. has been unable to assimilate and practice sound parenting skills to which he has been exposed during the reintegration program. Even after repeated coaching, D.S. remained “impulsive” and grossly ineffective in dealing with Z.S. during their supervised visitation periods. He displays similar impulsivity with adults in some situations. D.S. has resisted recommendations that he go to counseling to deal with those issues.
Z.S. is inappropriately aggressive both verbally and physically. She often throws things and hits or bites people. She is hyperactive and easily agitated leading to screaming fits and other unruly behavior. Z.S. has been diagnosed with anxiety disorder; she is in counseling and takes medications to help control the condition.
During nearly 2 years of attempted reintegration, D.S. was unable to progress to any sort of extended visitation with Z.S. on a regular basis. D.S. often would become frustrated with Z.S.'s behavior and would try to regulate that conduct by raising his voice. He, in turn, would become upset when Z.S. failed to comply. According to the assigned case workers, D.S. routinely failed to apply parenting skills that had been discussed with him, such as administering timeouts to Z.S.
During the attempted reintegration, D.S. was unable to keep jobs on any sustained basis. He had and lost at least four positions. As of the termination hearing in February 2014, D.S. had a part-time job delivering newspapers and supplemented his income with sporadic hourly wage work at University of Kansas events and selling his blood. Despite a stated desire to live independently from his parents, D.S. had not accomplished that objective.
By and large, the case workers acknowledged D.S. cared about Z.S. and sincerely wanted to do what was necessary to attain custody of her and assume the role of a full-time parent. But they also recognized that as D.S. and Z.S. approached the 2–year mark in the reintegration process, that desire would not become a reality.
The district court heard nine witnesses during the 2–day evidentiary hearing on termination, including a psychologist, social workers, and other case managers directly participating in the reintegration plan. Z.S.'s foster parent and another of her care providers also testified. Several months after the hearing, the district court issued a written order with detailed findings of fact and conclusions of law terminating D.S.'s parental rights. The district court determined D.S. to be unfit as a parent based on the presumption in K.S.A.2013 Supp. 38–2271(a)(5) because Z.S. had been in an out-of-home placement for more than 1 year and D.S. had substantially neglected to carry out an appropriate reintegration plan. The district court found that D.S. had not rebutted that presumption. Apart from the statutory presumption, the district court found D.S. to be unfit under K.S.A.2013 Supp. 38–2269(b)(7) and (c)(3) because, respectively, the reasonable efforts of the involved state and private agencies failed to rehabilitate the family and D.S. failed to achieve the objectives of a reasonable reintegration plan after Z.S. had been placed in state custody. Any of those grounds alone would have been legally sufficient to terminate D.S.'s parental rights.
The district court also found that the best interests of Z.S. would be served by severing parental rights. The district court relied particularly on the child's special needs and D.S.'s inability to develop parenting skills necessary to effectively meet those needs on any continuing basis.
D.S. has timely appealed from the termination order.
Legal Analysis
By statute, a district court may terminate parental rights upon clear and convincing evidence showing “the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” K.S.A.2013 Supp. 38–2269(a). Clear and convincing evidence requires the factfinder to conclude “that the truth of the facts asserted is highly probable.” In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 (2008). Upon a finding of unfitness, “the court shall consider whether termination of parental rights ... is in the best interests of the child.” K.S.A.2013 Supp. 38–2269(g)(1).
In reviewing a district court's decision to terminate parental rights, an appellate court must be convinced, based on the full evidentiary record taken in a light favoring the State as the prevailing party, that a rational factfinder could have found that decision “highly probable, i.e., [supported] by clear and convincing evidence.” In re B.D.-Y., 286 Kan. at 705. The appellate court cannot weigh conflicting evidence, pass on the credibility of witnesses, or otherwise redetermine questions of fact. 286 Kan. at 705. In short, any disputes in the evidence must be resolved to the State's benefit and against D.S.
Given the issues D.S. raises on appeal, those standards are not directly implicated. But we recognize the district court correctly acknowledged the State's burden to prove the requisite facts supporting termination by clear and convincing evidence and made findings drawn to that heightened level. Judicial Notice
For his first point, D.S. contends that at the beginning of the termination hearing, the district court improperly took judicial notice of the earlier phases of the case, including reports and other documents received during those proceedings. D.S. argues that taking notice of those materials for purposes of the termination hearing deprived him of due process and injected inadmissible hearsay into the State's evidence on termination. D.S. submits that he didn't dispute those documents during the earlier stages of the case, such as the adjudication of Z.S. as a child in need of care, because the issues before the district court then were different from the ultimate issue of termination of parental rights, so he hadn't the same incentive or need to challenge them.
Having framed the issue on appeal, as we understand it, we note the State contests the sufficiency of D.S.'s objection in the district court. At the termination hearing, the State requested the district court to take judicial notice, under K.S.A. 60–409, of the file and “all evidence previously admitted” during the course of the proceedings. The request drew immediate opposition from D.S. But his objection is actually a rather diffuse argument that touches on potential hearsay problems with a reference to K.S.A. 60–460 and the differing standard of proof to be applied in various phases of the case. The objection does not contain any direct reference to or explanation of a due process problem. There was no targeted, succinctly stated objection capturing the issue the way D.S. has presented it on appeal. The State's procedural point has some merit. We, nonetheless, put it to one side.
Even taking the issue as presented, we are not entirely clear on the alleged source of the legal error. D.S. cites no case authority suggesting a misuse of judicial notice here, outlining a hearsay problem, or enunciating a deprivation of due process in similar circumstances. We put that potential difficulty to one side, as well.
In the interests of expediency, we assume D.S. properly preserved his claimed error in the district court. We further assume the district court's decision to take judicial notice as it did amounted to some kind of error. But we hasten to point out we are making a wholly artificial assumption for forensic purposes that affords extraordinary deference to D.S. Our approach should not be viewed as anything more. Having indulged those assumptions, we come to the question that makes or breaks most appellate arguments: Has the complaining party been sufficiently prejudiced to warrant some relief? Here, D.S. has failed to show any particularized prejudice. He points to no findings the district court purportedly based on the evidence he challenges. Nor does he suggest any of the conclusions of law derived from impermissible evidence. In short, D .S. offers nothing to suggest the district court's decision would have been in any way different had his objection been sustained.
Given the nature of the claimed error, we cannot and will not assume prejudice where none has been shown. D.S.'s argument fails. D.S.'s Impecuniousness
For his second point, D.S. contends the district court terminated his parental rights principally because of his impecuniousness. He says this is error and points out that a child cannot be found in need of care because of insufficient “care, custody[,] or control” resulting solely from his or her parents' “lack of financial means,” as provided in K.S.A.2013 Supp. 38–2202(d)(1). We again indulge an assumption that the child-in-need-of-care criteria directly inform what amounts to parental unfitness and the child's best interests for purposes of termination. An in-need-of-care finding is a prerequisite for termination of parental rights, but it is made at a separate hearing preceding the termination hearing. And that finding represents a distinct, appealable order. See K.S.A.2012 Supp. 38–2273(a). D.S.'s blending of the standards entails an innovative argument we ultimately need not decide. So we don't.
In this case, the argument fails at a more basic level—its factual premise is wrong. The district court did not terminate D.S.'s parental rights principally because he was poor. As the district court's written findings make clear, D.S. has a chronic and essentially irremediable inability to retain and implement instruction on appropriate parenting skills. The deficiency seems to be the result of a learning disability rather than any willful or defiant intention on D.S.'s part. But the district court recognized the problem to be particularly acute because of Z.S.'s special needs. As we have noted, Z.S. engages in unruly and even dangerous behaviors requiring particularly well-tailored, patient parenting techniques combined with counseling and medication. Even then, Z.S. presents a challenge far exceeding the usual demands of an active young child.
The record evidence well supports the district court's conclusion that D.S. was incapable of providing minimally adequate care for Z.S ., as demonstrated by his obvious frustration and inability to deal effectively with his daughter during comparatively brief, supervised visits. Despite nearly 2 years devoted to reintegration, D.S. simply could not progress beyond that limited interaction with Z.S. The district court, therefore, correctly concluded the situation was unlikely to change in the foreseeable future. We see this as a primary consideration in the district court's order terminating D.S.'s parental rights—a consideration supported in both the facts and the law.
The district court took account of other circumstances pointing toward termination. D.S., for example, displayed impulse control problems with other adults from time to time. He did resist recommendations to address that issue. As we have mentioned, D.S. had what could only be described as a spotty work record. We infer the combined effects of his learning disability and his weak impulse control likely made him something less than an ideal employee. The lack of regular, gainful employment kept D.S. from living independently of his parents and, thus, acquiring a place that would provide a suitable home environment for Z.S. That was a secondary consideration in the district court's decision to terminate parental rights, and it is indirectly associated with D.S.'s lack of income or his poverty. But a parent's continuing inability to provide a suitable home for a child, whatever the underlying reason, is a legitimate consideration supporting termination. See In re A.A., 38 Kan.App.2d 1100, 1101, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008); In re H.C., No. 110,289, 2014 WL 1096943, at *4 (Kan.App.2014) (unpublished decision).
D.S. really asks us to ignore the district court's stated—and amply supported—findings and to rebalance the evidence to say that his poverty was the key reason his parental rights were terminated. Appellate courts can't reweigh evidence or substitute factual findings. In re B.D.-Y., 286 Kan. at 705. We won't do so here. D.S.'s second point fails.
We, therefore, find no factual or legal basis to disturb the district court's order terminating D.S.'s parental rights.
Affirmed.