Opinion
No. 107,362.
2012-08-31
In the Interest of A.H. and C.H., Minor Children.
Appeal from Wyandotte District Court; Daniel Cahill, Judge. James T. Yoakum, of Kansas City, for appellant natural mother. Devon Doyle, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.
James T. Yoakum, of Kansas City, for appellant natural mother. Devon Doyle, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
C.H. (Mother), the natural mother of A.H. and C.H., appeals the district court's decision to terminate her parental rights. Specifically, Mother contends the evidence was insufficient to support the district court's decision. For the reasons stated below, we affirm.
Facts
In August 2009, the State filed petitions in which it sought to have A.H. and C.H. adjudicated children in need of care (CINC). The petitions alleged that the children were taken to Children's Mercy Hospital after family members observed bruises on their bodies. C.H. had significant bruising to his penis and buttocks. The petitions also noted that C.H. had been seen at the hospital on multiple occasions in 2008 and 2009 due to concerns about sexual and physical abuse. At the time the petitions were filed, A.H. and C.H. were living with Mother and her boyfriend, Paul Shoemaker.
Although Mother stipulated to the allegations in the petitions and admitted that both children were injured as detailed in medical records and photographs, she claimed she did not know how the injuries occurred. After accepting this stipulation, the district court determined that the children were in need of care and adopted several interim orders designed to facilitate reintegration of the children with Mother and/or the children's father. These included orders that Mother would maintain monthly contact with the court services officer (CSO) and notify the CSO prior to any change of address, maintain stable housing and income, complete psychological and psychosocial evaluations, and attend supervised visits with the children.
At a disposition hearing on October 5, 2009, the district court found that reintegration with either parent was a viable option. The previously imposed orders remained in effect. The court subsequently modified its visitation order, allowing Mother unsupervised visits with the children. Multiple review hearings were held throughout 2010 in which the district court found progress was being made towards reintegration.
In November 2010, however, the State filed a motion in which it sought the termination of parental rights. The State alleged Mother recently had been evicted from her home and had lived in three different residences during the pendency of the case, that she lacked income sufficient to meet the needs of the family, and that she refused to leave her current employment in order to seek full-time employment that would allow her to qualify for a transitional housing program. The State further alleged Mother had difficulty recognizing the children's needs and continued to deny that the children had been abused. Finally, the State questioned Mother's ability to protect the children from future abuse, as Mother told professionals that she would reestablish her relationship with Shoemaker if the opportunity arose.
At a review hearing on April 26, 2011, the State withdrew its motion for termination of parental rights. The court's previous orders were kept in place, with the addition that Mother and the children were to have no contact with Shoemaker.
On July 22, 2011, the parties appeared at a permanency hearing, where the court found that progress towards reintegration was “adequate” and that reintegration may or may not be viable with either parent.
On September 22, 2011, the State again filed a motion seeking to terminate Mother's parental rights. The State alleged that Mother had failed to maintain monthly contact with the CSO; was homeless after being evicted from her apartment for nonpayment of rent; had not demonstrated an ability to maintain stable financing; had not attended medical appointments for the children; failed to attend individual therapy sessions since early 2011; and continued to have contact with Shoemaker, contrary to the district court's order. The State also claimed that Mother still did not believe the children's allegations of abuse against Shoemaker despite the fact that he had been substantiated for abuse by the Kansas Department of Social and Rehabilitation Services (SRS). The State noted that the children had been in the State's custody for over 2 years and were nowhere near reintegration.
At a permanency hearing on October 28, 2011, the district court determined that reintegration was no longer a viable option; the court discontinued parental visitation and changed the case plan to adoption or permanent custodianship.
On November 18, 2011, the district court held an evidentiary hearing to consider the State's motion to terminate Mother's parental rights. After considering all of the evidence, the district court determined by clear and convincing evidence that Mother was unfit and that her conduct or condition was unlikely to change in the foreseeable future. After determining that it was in the children's best interests, the district court terminated Mother's parental rights.
Analysis
On appeal, Mother argues there was insufficient evidence presented to support the district court's decision to terminate her parental rights. She alleges that none of the statutory factors under K.S.A.2011 Supp. 38–2269 were proven and that the district court rushed to “strip her of her parental rights.”
Standard of Review
The termination of parental rights is controlled by K.S.A.2011 Supp. 38–2269(a), which requires the district court to find “by clear and convincing evidence that 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.” In addition to these two required findings, if the court makes a finding of unfitness, “the court shall consider whether termination of parental rights as requested in the petition or motion is in the best interests of the child.” K.S.A.2011 Supp. 38–2269(g)(1). K.S.A.2011 Supp. 38–2269(b) and (c) list several considerations for a district court determining the fitness of a parent. The existence of any of these considerations, “standing alone may, but does not necessarily, establish grounds for termination of parental rights.” K.S.A.2011 Supp. 38–2269(f).
When this court reviews a district court's termination of parental rights, we consider “whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that [the parent's rights should be terminated.]” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). “Clear and convincing evidence” requires the factfinder to believe “that the truth of the facts asserted is highly probable.” 286 Kan. at 697. An appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
Proceedings in the district court
The district court terminated Mother's parental rights after finding that her conduct violated several of the considerations listed in K.S.A.2011 Supp. 38–2269(b) and (c). In particular, the court found that Mother's conduct was contrary to:
• K.S.A.2011 Supp. 38–2269(b)(4): “physical, mental or emotional abuse or neglect or sexual abuse of a child”;
• K.S.A.2011 Supp. 38–2269(b)(7): “failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family”;
• K.S.A.2011 Supp. 38–2269(b)(8): “lack of effort on the part of the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child”; and
• K.S.A.2011 Supp. 38–2269(c)(3): “failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home.”
Mother contends the State failed to present sufficient evidence to support termination under any of the listed considerations. Mother's argument requires review of the evidence presented at trial.
CSO David Lindstrom testified that Shoemaker had been substantiated by SRS for causing the injuries to A.H. and C.H. that led the State to file the CINC petition. Lindstrom further testified that Mother had failed to comply with several of the district court's orders. He stated that Mother had not maintained monthly contact with him or provided proof of employment. Mother had reported eight different addresses to him in the last 2 years. Mother has twice been evicted from residences; most recently, she was reportedly living with Shoemaker's father and stepmother. Mother also had not presented proof that she was participating in individual therapy, as recommended in her psychological evaluation. Lindstrom stated that Mother's visitations with the children had recently been suspended, as there were concerns that visitation was no longer in the children's best interests. Lindstrom recommended that Mother's parental rights be terminated and expressed concern about Mother reintegrating with the children due to her lack of stability and her continued contact with Shoemaker, a substantiated abuser.
Sherie Marchant, a therapeutic case manager at KVC Behavioral Health Care, worked with Mother in the 2 months prior to trial. Marchant never felt comfortable allowing Mother to have unsupervised visitation with the children because the children were struggling during the supervised visits. Marchant stated that Mother was currently living with Shoemaker's stepmother. Mother had not provided Marchant with proof that she was attending individual therapy.
Angela Dunn, a former KVC therapeutic case manager, worked with Mother from April to October 2010. Dunn testified that when she first took the case, unsupervised visitation took place in Mother's home; this changed to supervised visitation shortly thereafter when A.H. disclosed that she had been sexually abused by Shoemaker. Thereafter, the visits were never unsupervised due to concerns regarding Mother's lack of supervision and emotional reactions to the children. Dunn stated that Mother was unwilling to obtain full-time employment in order to qualify for housing assistance. Mother also was not receptive to participating in individual therapy to help with her emotional stability. According to Dunn, Mother continued to deny that Shoemaker had abused the children and was “frustrated because her life was having to change due to ... stuff that the kids were saying.” When A.H. tried to talk to Mother about things Shoemaker had done to her, Mother stated, “ ‘[Y]ou better knock that crap off, or you're going to get people in big trouble.’ “ When A.H. told Mother that Shoemaker had choked her, Mother replied, “ ‘Oh, that's all he did. He just choked you.’ “ Mother told Dunn that “if the situation were different, she would be back with Mr. Shoemaker as soon as she could.”
Jamey VanSyckle, another former KVC therapeutic case manager, worked with Mother from October 2010 to September 2011. VanSyckle testified that during the summer of 2011, Mother's supervised visits had to be moved from Mother's home to KVC because of concerns that Mother was back in a relationship with Shoemaker. Mother continued to deny that Shoemaker had abused the children, stating to VanSyckle “ ‘[t]hat poor man, he's been through enough,’ “ and “ ‘[Shoemaker] loves me, and his family has taken me in.’ “ Despite VanSyckle's efforts to help Mother maintain housing, she was evicted from her apartment in August 2011. Mother never spoke to VanSyckle about whether it would be appropriate to live with Shoemaker's stepmother.
Samantha Stubblefield, a former therapeutic intern at Keeler's Women's Center, testified that Mother stated in September 2010 that she did not believe Shoemaker abused the children and that she would date him again if she was allowed to do so.
Michael Johnson, Mother's former landlord, testified that he had Mother evicted from his property in July or August 2011. Johnson stated that Shoemaker had paid part of Mother's rent in May 2011 and that he occasionally saw Shoemaker's vehicle outside of Mother's residence. Other witnesses also testified to seeing Mother with Shoemaker in the months prior to trial.
Deborah Shoemaker, stepmother to Shoemaker, testified that Mother currently lived with her in La Cygne, Kansas. Deborah testified that Shoemaker was not allowed to come to her residence, and he had also been banned from Sally's Beauty Supply, where Mother worked.
Mother testified that she cut ties with Shoemaker once she learned he had hurt A.H. During cross-examination by the State, Mother denied knowing who had hurt C.H. but admitted that Shoemaker had been substantiated for abusing both of the children.
The evidence presented at trial supports a finding of unfitness
1. K.S.A.2011 Supp. 38–2269(b)(4): “physical mental or emotional abuse or neglect or sexual abuse of a child”
Mother argues that her disbelief of the children's allegations against Shoemaker did not constitute abuse. To that end, Mother claims that she understandably had difficulty accepting the children's claims against Shoemaker because the children's father also had visitation with the children and could have inflicted the abuse, Shoemaker was never arrested or charged with a crime against the children, and SRS provided no conclusive proof that Shoemaker was the abuser.
Mother's argument lacks merit. There is no dispute that Shoemaker was substantiated by SRS for abusing the children. Several witnesses testified that Mother had maintained contact with Shoemaker, including contact after SRS substantiated him for abuse. Mother also continued to deny that Shoemaker had harmed the children. Dunn testified that Mother belittled A.H. when she made allegations against Shoemaker or denied that the allegations were true. And Mother's own trial testimony indicated she did not entirely believe that Shoemaker had harmed C.H.
Mother's continued relationship with Shoemaker and failure to acknowledge the allegations against him clearly constitutes sufficient evidence of mental or emotional neglect of the children. Moreover, Mother failed to provide for the safety and well-being of the children, as A.H. and C.H. were living with Mother and Shoemaker when the alleged physical abuse occurred. A parent's failure to protect a child from abuse has been found sufficient to support termination of parental rights. See, e.g., In re J.D.D., 21 Kan.App.2d 871, 876–77, 908 P.2d 633 (1995).
2. K.S.A.2011 Supp. 38–2269(b)(7): “failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family”
Mother also maintains there was insufficient evidence to show that reasonable efforts were made to rehabilitate the family; instead, she claims that the CSO and therapeutic case managers “pushed [her] to accept the notion that Paul Shoemaker had abused her children.”
Contrary to Mother's argument, approximately 26 months elapsed between August 2009—when the temporary custody orders were issued for A.H. and C.H.—and November 2011—when the termination trial was held. During that time, the district court found reintegration to be a viable option, adopted orders to facilitate this plan, and found that Mother was making progress towards reintegration. Additionally, the State withdrew its first motion to terminate parental rights, giving Mother additional opportunities to work towards reintegration. Mother was allowed both supervised and unsupervised visitation with the children during much of this time. The record clearly supports the district court's finding that reasonable efforts were made to rehabilitate the family. 3. K.S.A.2011 Supp. 38–2269(b)(8): “lack of effort on the part of the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child” and 4. K.S.A.2011 Supp. 38–2269(c)(3): “failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home”
Finally, Mother alleges the State did not prove that she failed to adjust her circumstances to meet the needs of her children or that she failed to carry out a reasonable plan directed toward reintegration. Rather, she claims the evidence showed that she made significant progress in her parenting and thinking from August 2009 to November 2011. For support, Mother notes that (1) she cut ties with Shoemaker when ordered to do so, (2) Shoemaker is not welcome at her residence in La Cygne, and (3) no evidence was presented to indicate that she had been with Shoemaker in the 6 or 7 months prior to trial.
The record reflects that Mother's visitation with the children moved from unsupervised to supervised due to concerns about her interactions with the children and her relationship with Shoemaker. Mother lacked a stable living environment for the children and had been evicted from her residence on more than one occasion. She subsequently refused efforts to help her qualify for housing assistance and instead moved in with Shoemaker's family. Mother failed to maintain monthly contact with the CSO, failed to provide proof of employment, and ignored recommendations by her case managers to attend individual therapy. Such evidence supports a finding that Mother both failed to adjust her circumstances to meet the needs of her children and that she failed to carry out a plan directed toward reintegration.
Conclusion
The existence of any one of the considerations in K.S.A.2011 Supp. 38–2269(b) or (c) may establish grounds for termination of parental rights. K.S.A.2011 Supp. 38–2269(f). Here, the evidence presented at trial on each of the considerations relied on by the district court, viewed in the light most favorable to the State, was sufficient for a rational factfinder to find it highly probable that Mother was an unfit parent and unlikely to change in the foreseeable future. See In re B.D.-Y., 286 Kan. at 705.
Affirmed.