Opinion
No. 109 360.
2013-07-26
In the Interest of H.C., a Minor Child, d.o.b.2004, H.W., a Minor Child, d.o.b.2006, and L.W., a Minor Child, d.o.b.2006.
Appeal from Lyon District Court; Jeffry J. Larson, Judge. Rand E. Simmons, of Simmons Law Office, of Emporia, for appellant natural father. Meghan K, Morgan, assistant county attorney, and Marc Goodman, county attorney, for appellee.
Appeal from Lyon District Court; Jeffry J. Larson, Judge.
Rand E. Simmons, of Simmons Law Office, of Emporia, for appellant natural father. Meghan K, Morgan, assistant county attorney, and Marc Goodman, county attorney, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM:
H.W. (Father) appeals from the termination of his parental rights to his three children: H.C., H.W., and L.W. The State initiated child in need of care (CINC) cases involving these children and three half-siblings in 2007; in 2011, the trial court held that the parents were unfit but did not terminate the parents' rights. The court placed the children back into the parents' home, and 6 months later the CINC cases were terminated.
Less than 3 weeks after the CINC cases were closed, a new report of physical abuse was made by one of the children, and the children were removed from the home. The State filed new CINC petitions, and the court again held that all the children were in need of care. Following an evidentiary hearing in November 2012, the court terminated both parents' rights. Father appealed. Although Mother appealed from the trial court's ruling, she never docketed her appeal. We find the record contains clear and convincing evidence supporting the termination of Father's rights. Therefore, we affirm.
This family came to the attention of the Kansas Department of Social and Rehabilitation Services (SRS) in 2007, at which time the children were removed from the home. The six children in the home all shared the same mother (Mother). Father is the natural father of the three youngest children, H.C. (d.o.b.2004) and twins H.W. and L.W. (d.o.b.2006). During the 2007 cases, the State provided the family with extensive services, including foster care, mental health services, drug and alcohol treatment, parenting classes and infant-toddler services. All or some of the children were returned to their parents' care several times—between October 2008 and April 2009 and again from January and July 2010—but were removed again for various reasons, including physical abuse. Throughout the 2007 cases, one or more of the children reported that the parents had used physical disciplinary measures. The court took judicial notice of the records from the 2007 cases in the current termination hearing.
The limited record before us established Father's ongoing drug and legal issues. A 2009 drug evaluation showed that Father was diagnosed with alcohol and cocaine dependence. During that evaluation, Father admitted that he began using alcohol, marijuana, and cocaine when he was 13 years old. Father had an extensive criminal history dating back to 1978. In addition to a variety of burglaries and theft offenses, his convictions included several drug-related offenses involving marijuana, cocaine, and alcohol. Father had been hospitalized several times during this period for health issues related to alcohol and drug abuse.
During the pendency of the 2007 cases, Father was arrested in 2009 for possession of cocaine. Father then participated in Path to Recovery, a drug and alcohol treatment program. Father's attendance and participation in treatment was consistent until he was arrested in May 2010 on new possession of cocaine charges. Father pled guilty to at least one of these charges. When he failed to return to treatment after his arrest, he was discharged from the program. His prognosis at that time was poor. He returned to the drug treatment program in January 2011 and successfully completed the program in August 2011.
In May 2011, a hearing on unfitness took place in Lyon County District Court in the 2007 cases. After hearing the evidence, the trial court ruled that both Mother and Father were unfit based on Mother's ongoing use of physical discipline, Father's drug use and drug convictions, the parents' failure to adequately supervise the children, and their failure to adjust their circumstances and conduct despite their use of extensive services provided by the State and various agencies. The trial court, however, determined that termination of the parents' rights was not in the best interests of the children. The court ordered the State to make one final effort to reintegrate the family. SRS returned the children to the parents on June 30, 2011; the family received aftercare services. The cases were closed and services terminated in late January 2012.
On February 2, 2012, A.C, the oldest child in the family, reported that Mother had struck her several times that morning with a wooden paddle. Her half-brother, H.C., confirmed that their parents were using a belt and paddle to discipline them and confirmed hearing A.C. being struck by Mother earlier that day. The parents denied using physical discipline or possessing a wooden paddle. After obtaining a search warrant, police searched the parents' home and found a wooden paddle matching the children's description in a trash can just outside the home. The next day, the parents underwent drug tests and Father tested positive for cocaine.
As a result of this information, all six children were removed from their parents' home and placed in respite care. After they were removed, the other children told social workers of the physical abuse. They stated they had not reported it earlier because their parents had told them not to tell anyone. The older children also insisted that they did not want to return to their parents' home because of the beatings. Less than 2 weeks later, the State filed CINC petitions. The court ordered out-of-home placement for all of the children. After an evidentiary hearing, the court determined that all the children were in need of care and should remain in SRS custody.
Following a case planning conference, the parents were directed to complete certain tasks aimed at reintegrating the children into a safe, drug-free home. Specifically, Father was directed to continue with drug and alcohol treatment and to submit to random urinanalysis (UA) tests. Father and Mother also were directed to participate in anger assessments and follow the recommendations from those assessments. The assessments showed that Father minimized the violence in the home and that Mother had a moderate risk of additional violence because of her ongoing denial of violence in the home.
The parents struggled to comply with the case plan. While Father was attending drug treatment through the Path to Recovery program, his attendance was sporadic. He was arrested for driving under the influence of alcohol (DUI) on March 17, 2012. The program discharged Father in May 2012 due to noncompliance. Father later pled guilty to DUI.
In addition, employees of SRS's contractor, TFI Family Services, Inc. (TFI), initially reported difficulties contacting the parents and lack of candor. Mother reported Father was out of state, but social workers had seen Father in the area. When he was asked about this, Father admitted he did not want to have any contact with TFI. Mother also used Father's “trip out of state” to excuse his failure to attend his drug/alcohol meetings. After several months, however, the parents were contacting TFI weekly.
The State moved to terminate the parents' rights to the children in April 2012. Although the termination hearing was continued several times, it finally took place on November 19–20, 2012.
During this hearing, the executive director of Path to Recovery testified regarding Father's unsuccessful discharge from its program in May 2012 after his failure to return to treatment. Father had started treatment at another facility, and the information known to TFI reflected that Father was participating in the treatment program and was nearing the aftercare stage of that program.
Similarly, a family therapist who had worked with the family for 4 years testified that progress after the February 2012 was minimal until the motion to terminate was filed. The parents' participation improved when the motion was filed. She also opined that the children's behavior was inconsistent, both in and out of the home, because of the lack of stability caused by constant relocations and changes in routines. The therapist opined that successful reintegration would be a long-term work in progress and that the parents tended to fail without substantial ongoing support.
The TFI case manager agreed with the therapist that the parents made slow or minimal progress until after May 2012. The case manager had worked with the family for over 3 years and had set a number of case plan tasks for the parents; although the parents made progress, some of the children were removed from the home twice and some of the children were removed three times during the State's involvement. The TFI manager also agreed that the parents were not able to care for the children unless they had substantial services supporting them and that such services could not be provided to the family for more than a year after reintegration. Four of the six children had stable placements since they shifted from respite homes; however, A.C. and L.C. had changed placements because of ongoing problems. The case manager also testified that Father had admitted that he had consumed alcohol at least four times after February 2012, including the incident resulting in a DUI conviction.
The court terminated the parents' rights on November 30, 2012. Specifically, the court ruled that the unchallenged finding of unfitness made in the 2007 CINC cases created the presumption that the parents were unfit in this case. Moreover, the court determined that the parents had failed to rebut the finding of unfitness. The court further determined that if the children were to have any chance to experience long-term physical, mental, and emotional good health, they had to be given stability. The court found that while A.C. and L.C. still lacked stability, the other children had reached stability in foster care. The court refused to continue the past cycle of “removal, readjustment and uncertainty” and found that the parents were unable to provide long-term stability to the children. As a result, the court determined that it was in the best interests of the children to terminate the parents' rights.
Before terminating a parent's parental rights, a trial court is required to make three findings. First, the court must find by clear and convincing evidence that the parent is unfit. Second, the court must find that the parent's conduct or condition which renders him or her unfit is unlikely to change in the foreseeable future. Finally, the court must determine that termination of parental rights is in the best interests of the child. K.S.A.2012 Supp. 38–2269(a), (g)(1).
When this court reviews a trial court's termination of parental rights, we consider whether, after review of all the evidence, viewed in the light most favorable to the State, we are 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 K.W., 45 Kan.App.2d 353, 354, 246 P.3d 1021 (2011) (citing In re B.D.-Y., 286 Kan. 686, 705, 187 P .3d 594 [2008] ).
On appeal, Father does not appear to challenge the court's application of a presumption of unfitness or its finding that Father failed to rebut this presumption. Instead, Father asserts that the State failed to establish, by clear and convincing evidence, that termination of his rights was in the best interests of his children. Father essentially argues that the evidence failed to establish that the children were better off in foster care than with the parents. He relies on the number of hospitalizations, police incidents, and “critical incident reports” involving the children when they were in foster care in the 2007 case, as well as after their removal from the home in 2012.
Father emphasized the police were not called and none of the children were hospitalized while with their parents between June 2011 and their removal in February 2012. Although this is accurate, the children's aftercare worker testified that the children's problem behavior—especially A.C. and L.C.—continued after they were returned to the home. Father ignores the fact that whether a critical incident report is filed generally is controlled by the adults having custody; if the parents do not make a report and if the children are afraid to report, there will be nothing in the file.
The record confirms that these children faced numerous challenges both while in the parents' home and in foster care. A.C. had been diagnosed with reactive detachment disorder; she regularly exhibited defiant or aggressive behavior at home with her natural as well as with foster parents. Likewise, police were called due to misbehavior of L.C; she was hospitalized for psychiatric reasons several times during the 2007 case. In addition, she was hospitalized once after she was removed from the home in 2012.
The trial court determined that the mother and father had previously been found to be unfit, which created a presumption of unfitness. K.S.A.2012 Supp. 38–2271(b) provides that “[t]he burden of proof is on the parent to rebut the presumption of unfitness by a preponderance of the evidence.” Moreover, the trial court determined that the parents had presented insufficient evidence to rebut the presumption of unfitness. K.S.A.2012 Supp. 38–2271(b) further provides that “[i]n the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall terminate parental rights.”
The main basis for the trial court's holding was the ongoing pattern of the parents' inability to provide a safe, drug-free home for the children on a long-term basis. For example, the mother admitted in family therapy that it was typical in the family that when someone was angry, he or she would hit the other person to make the other person feel the same way. Moreover, Father relapsed with his drug and alcohol problems and was again working through drug treatment. The parents' pattern of reverting to physical discipline and drug use after social services were reduced—resulting in removal of the children to foster care—simply exacerbated the children's behavioral issues. The record establishes that H.C., L.W., and H.W. were in stable foster placements and doing well outside the home.
When determining whether a parent's “conduct or condition is likely to change in the foreseeable future,” courts are to consider the “foreseeable future ... from the child's perspective, not the parent['s], as time perception of a child differs from that of an adult.” In re S.D., 41 Kan.App.2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009); accord In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002). Parents are to be the protectors of their children. Here, Father and Mother had multiple opportunities to show the State they were capable of learning from their past mistakes and focusing on their children, but they failed to do so. Imposing additional uncertainty on these children, who have been in and out of State custody for much of their lives, is not in their best interests. Thus a reasonable person could agree with the trial court in finding that H.C., H.W., and L.W., were best served by the termination of their relationship with Father.
Affirmed.