Opinion
No. 111,672.
2014-11-14
In the Interest of G.S. and F.S., Children Under Eighteen (18) Years of Age.
Appeal from Barton District Court; Steven E. Johnson, Judge.Shannon S. Crane, of Hutchinson, for appellant natural father.M. Levi Morris, assistant county attorney, and Douglas A. Matthews, county attorney, for appellee.
Appeal from Barton District Court; Steven E. Johnson, Judge.
Shannon S. Crane, of Hutchinson, for appellant natural father. M. Levi Morris, assistant county attorney, and Douglas A. Matthews, county attorney, for appellee.
Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Father, the natural father of G.S. and F.S., appeals from the decision of the district court to terminate his parental rights. Specifically, Father maintains there was insufficient evidence to support the district court's findings that he was unfit and that the conduct or condition that rendered him unfit was unlikely to change in the foreseeable future.
Facts
Beginning in 2006, the Kansas Department of Social and Rehabilitation Services, now the Kansas Department for Children and Families (DCF), received multiple reports relating to Father's abuse of alcohol, domestic violence between Mother and Father, and Mother's inability to meet the needs of G.S. DCF offered family preservation services, which Mother and/or Father either refused or discontinued after a short time. DCF received another report in 2009 that expressed concerns regarding Mother's inability to meet the needs of G.S. and newborn F.S., continued domestic violence, and Father's abuse of alcohol. At that time, Mother and Father were no longer living together and G.S. was residing primarily with Father. Mother accepted family services for about 5 months but then refused to participate. Shortly thereafter, DCF received another report regarding Mother's unstable living environment and physical neglect of the children, who at that point were both residing with her.
On December 1, 2009, the State filed petitions seeking to have G.S. and F.S. declared children in need of care. At a temporary custody hearing on December 15, 2009, the district court placed G.S. in the temporary custody of Father and placed F.S. in the temporary custody of Mother. The court further ordered the parents to participate in family preservation services and scheduled an adjudication hearing.
On February 2, 2010, the district court adjudicated the children as children in need of care after the guardian ad litem stipulated to the petitions and Mother and Father entered no contest declarations. The court placed the children in the custody of Father, ordered family preservation services be continued, and required the children to participate in early childhood education and developmental services.
On June 22, 2010, the district court held a review hearing at the request of the county attorney. After being informed of allegations that Father was abusing G.S., the court removed the children from Father's custody, placed the children in DCF custody, and ordered that any visitation by the parents be supervised.
A review hearing was held on September 21, 2010. The district court determined that the children should remain in DCF custody in out-of-home placement, ordered Mother to attend a parenting class, and ordered Father to attend an anger management class.
At subsequent permanency hearings on June 21 and October 25, 2011, the district court determined that reintegration with both parents was, and continued to be, a viable option. By August 21, 2012, however, the district court found that reintegration with both parents was no longer viable and changed the permanency goal to adoption or permanent custodianship. Nearly a year later, at an August 13, 2013, permanency hearing, the district court confirmed reintegration still was not a viable option.
On October 30, 2013, the State filed a motion to terminate the parental rights of Mother and Father. The State noted that the children had been out of the home for over 2 years and alleged that while DCF had offered or provided services to the family for the previous 7 years, the parents were unable to consistently provide for the children's physical and emotional needs and had substantially neglected or willfully refused to carry out the permanency plan tasks directed toward reintegration. With respect to Father, the State's motion included reports of domestic violence; Father's alcohol abuse; and an incident where Father had suffered a traumatic brain injury after falling down some stairs, resulting in dementia and severe psychological, cognitive, and memory impairment. The State also noted that Father struggled to interact with the children or attend to their needs during visits, had missed multiple weekly visits with the children from 2010 to 2013, and had not visited them since December 2012.
The district court held an evidentiary hearing on January 22, 2014. Prior to the start of the hearing, Mother relinquished her parental rights to the children. The court then heard testimony from several witnesses, including Father's case workers with St. Francis Community Services (SFCS) and Father.
Father's case workers testified that Father's case plan tasks included: (1) completing parenting classes; (2) disciplining the children in a manner that did not cause harm; (3) following his doctor's recommendations, including taking medications and completing occupational and physical therapy; (4) attending anger management classes; (5) participating in visits with the children; (6) remaining respectful and appropriate to SFCS staff; (7) contacting the VA for support due to the effects of his past trauma; (8) not driving on a suspended driver's license; (9) participating in all case plan meetings; and (10) not accruing any new legal charges.
Father's medical records indicated that in addition to the traumatic brain injury, he suffered from dementia, arthritis, seizure disorder, anxiety disorder, bipolar disorder, and severe impairment in cognition and memory. Father completed one parenting class but did not complete a required second class. Father stopped taking his prescribed seizure medication in February 2012 and had a seizure the following August. Father did not follow up with physical therapy after leaving a rehabilitation facility. Father attended two anger management classes but was discharged after he denied having any anger issues. Father spoke disrespectfully to SFCS staff, failed to listen to SFCS recommendations, and stated that if it was up to him, he would blow up SFCS with a bomb. Father provided no documentation that he was receiving services from the VA. Father did not attend family therapy as recommended.
Father worked odd jobs and was able to provide for the children, but he never had stable consistent employment. Father did reasonably well during his initial visits with the children and was fairly successful at disciplining the children. At first, Father had supervised visits at his home, but the visits were eventually moved to the SFCS office because Father was making threats to the workers. Father did not have a car, so SFCS tried to facilitate visits by offering transportation to Father but stopped doing so after he made inappropriate comments to the drivers. Thereafter, Father attended the visits sporadically. Father never progressed beyond supervised visitation but expressed concern that if the visits progressed to being monitored, it would require him to miss work and would require more responsibility on his part. Father was unsure if he would be able to take on this responsibility. When case workers talked to Father about going to meetings at G.S.'s special needs school, Father reported that he did not think G.S. was a special needs child or that he needed extra services.
In April 2011, Father arrived for a visit smelling of alcohol and admitted to drinking alcohol the night before. A mouth swab tested positive for alcohol, so the visit was cancelled. In May 2011, Father suffered a traumatic brain injury when he fell down some stairs. Father was drunk when he arrived at the hospital after the fall. Thereafter, Father would sometimes fall asleep during visits with the children and did not provide a lot of care. Father's girlfriend was the primary caretaker of the children, though Father would usually tell her when to make food or give the children baths. She also had to help Father get out of bed, bathe, and put on clothes. Father denied that he needed any additional physical or occupational therapy, claiming that he just needed to get better on his own. The case workers did not believe that Father had ever dealt with his alcohol problem.
At the time of the hearing, Father had been in jail for 7 months after being charged with assault with a deadly weapon and had not visited with the children in over a year. Father asked the case workers about the possibility of the children visiting him, but the jail did not allow for underage children to visit. Father made no other requests to communicate with the children.
Father testified that he loved his children and would do “what has to be done” to get them back. He stated that he was working on the case plan as best as he could. Father admitted that he had been denied visitation on one occasion because he smelled of alcohol. Father also admitted that between May and October 2011, he missed 22 visits with the children. He claimed that he was in New Mexico taking care of his father and was waiting to go to court. Father was not in contact with SFCS and did not write any letters to the children during this time. Father denied that he ever threatened any SFCS workers or staff. Father acknowledged that he did not complete family therapy but claimed it was because he had fallen down the stairs and was “laid up” for 5 months. Father denied that the fall occurred because he was drunk; he claimed he was hit in the back of the head. Father agreed that he had suffered memory loss and physical problems after his fall but claimed he could physically take care of the children. Father blamed his sister and a police officer for his arrest and incarceration. Father admitted that if he was convicted on the assault charge, he faced a potential prison sentence of 2 1/2 years. Father claimed that he could not call or write the children from jail because he did not have their phone number or address, and no one had told him that he could try to contact the children directly or indirectly.
After considering the arguments of counsel and the testimony outlined above, the district court found clear and convincing evidence that Father was unfit by reason of conduct or condition that rendered him unable to care properly for the children and that such conduct was unlikely to change in the foreseeable future. Specifically, the court found Father was presumed unfit under K.S.A.2013 Supp. 38–2271(a)(6), as (1) the children had been out of the home for more than 2 years, (2) Father had failed to carry out a reasonable reintegration plan, and (3) there was a substantial probability that Father would not carry out such a plan in the near future. The court further found that Father failed to meet his burden to rebut this presumption. In addition, the district court ruled that even if the State was not entitled to a presumption of unfitness under K.S.A.2013 Supp. 38–2271, the State presented sufficient evidence justifying the termination of Father's parental rights under K.S.A.2013 Supp. 38–2269. Specifically, the court ruled that (1) Father had not sufficiently recovered from his traumatic brain injury, which prevented him from caring for the children; (2) Father had been incarcerated for the past year and would be incarcerated for another 2 1/2 years if convicted of the pending criminal charges; (3) Father's use of alcohol rendered him unable to care for the children; (4) Father failed to follow the case plan and reintegration plan; and (5) Father failed to maintain regular visits with the children both before and after his incarceration.
Analysis
On appeal, Father argues the district court erred in terminating his parental rights. Specifically, Father argues that there was insufficient evidence to support the district court's findings that he was unfit and that the conduct or condition that rendered him unfit was unlikely to change in the foreseeable future.
In order for the district court to terminate parental rights, the State must have proved by clear and convincing evidence that (1) the parent is unfit and (2) the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future. K.S.A.2013 Supp. 38–2269(a). The State also must have proved, albeit only by a preponderance of the evidence, that termination is in the best interests of the child. K.S.A.2013 Supp. 38–2269(g)(1); see In re R.S., No. 111,027, ––– Kan.App.2d ––––, ––– P.3d ––––, 2014 WL 5408429, at *8 (October 24, 2014).
Our standard of review on appeal necessarily depends on the State's burden of proof at the termination proceedings. If the issue on appeal relates to the district court's decision regarding current and future unfitness, the appellate court reviews all the evidence, in the light most favorable to the State, to determine whether it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that a parent is unfit and the conduct or condition rendering the parent unfit is unlikely to change in the foreseeable future. In re B.D.-Y., 286 Kan. 686, 691, 705, 187 P.3d 594 (2008). If, however, the issue presented on appeal relates to a decision regarding the best interests of the child, the decision is reviewed for abuse of discretion. In re R.S., 2014 WL 5408429, at *8.
A parent will be presumed unfit in those circumstances specifically described in K.S.A.2013 Supp. 38–2271(a), provided the State can establish by clear and convincing evidence that such circumstances exist. In cases where the State has properly invoked a presumption of unfitness, the parent bears the burden to rebut the presumption of unfitness by a preponderance of the evidence. Upon the parent's failure to rebut the presumption, “the court shall terminate parental rights in proceedings pursuant to K.S.A.2013 Supp. 38–2266 et seq. , and amendments thereto.” K.S.A.2013 Supp. 38–2271(b).
Additionally, K.S.A.2013 Supp. 38–2269(b) and (c) provide a nonexclusive list of factors that the court must consider when determining parental unfitness. The existence of any one of these statutory factors “standing alone may, but does not necessarily, establish grounds for termination of parental rights.” K.S.A.2013 Supp. 38–2269(f).
In the present case, the district court found Father unfit under K.S.A.2013 Supp. 38–2271(a)(6), which creates a presumption that a parent is unfit when the child has been out of the home for 2 years or more, the parent has failed to carry out a reasonable reintegration plan, and there is a substantial probability that the parent will not carry out such plan in the near future. The court found that Father failed to rebut this presumption. In addition to the statutory presumption of unfitness, the court also found clear and convincing evidence that Father was unfit under at least four of the nonpresumptive statutory factors:
• K.S.A.2013 Supp. 38–2269(b)(1) (emotional illness, mental illness, mental deficiency or physical disability of parent, of such duration or nature as to render parent unable to care for ongoing physical, mental and emotional needs of child).
• K.S.A.2013 Supp. 38–2269(b)(3) (use of intoxicating liquors or narcotic or dangerous drugs of such duration or nature as to render parent unable to care for ongoing physical, mental or emotional needs of child).
• K.S.A.2013 Supp. 38–2269(b)(7) (failure of reasonable efforts made by appropriate public or private agencies to rehabilitate family).
• K.S.A.2013 Supp. 38–2269(b)(8) (lack of effort on the part of parent to adjust parent's circumstances, conduct, or conditions to meet needs of child).
Father challenges the district court's findings that he was unfit and that such unfitness was unlikely to change in the foreseeable future. Specifically, Father claims (1) there was no evidence presented at the hearing proving that his use of alcohol, his traumatic brain injury, his failure to take the seizure medication, or his failure to complete additional physical rehabilitation affected his ability to parent the children; (2) there was no evidence showing that he was discharged unsuccessfully from anger management classes or that he needed additional sessions; (3) his supervised visits with the children went fairly well and outside circumstances interfered with his ability to visit the children after the visits were removed from his home; (4) allegations of disrespect to SFCS staff had nothing to do with his ability to parent and should not be grounds for terminating his parental rights; and (5) his compliance with certain case plan tasks establishes a genuine effort to adjust his circumstances, conduct, or conditions to meet the needs of the children.
But Father's arguments are merely an invitation to reweigh the evidence, which we will decline. See In re B.D.-Y., 286 Kan. at 705 (appellate courts do not reweigh evidence, judge credibility of witnesses, or redetermine questions of fact). There is ample evidence in the record to support the district court's finding of unfitness. Notably, the district court found Father's testimony was not credible in light of the “overwhelming” evidence presented by the State regarding Father's alcoholism and traumatic brain injury. Additionally, the record is replete with uncompleted case plan tasks or requirements. The children, ages 5 and 7 at the time of the hearing, had been in state custody since June 22, 2010, and at the time of the hearing, Father had not seen them in over a year. And during the 43 months that the children were out of Father's care, he did not see, write, or call them for approximately 20 of those months. Instead of accepting responsibility for his actions, Father blamed others for his situation.
Moreover, there is clear and convincing evidence to support the district court's finding that the conduct or condition rendering Father unfit was unlikely to change in the foreseeable future. We consider whether a condition is likely to change in the foreseeable future from the perspective of the child and not the parent. See, e.g., In re M.B., 39 Kan.App.2d 31, 45, 176 P.3d 977 (2008); In re C.C., 29 Kan.App.2d 950, Syl. ¶ 2, 34 P.3d 462 (2001). Consequently, efforts at rehabilitation or reintegration must proceed promptly to a successful conclusion. In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
Parental unfitness can be judicially predicted from a parent's past history. See In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982). Considering Father's history, there is sufficient evidence to support the district court's finding that Father's unfitness was unlikely to change in the foreseeable future. While Father has expressed a desire to have the children live with him, he has failed to complete many of the tasks or requirements on the reintegration plan. Moreover, at the time of the hearing, Father had been in jail for 7 months and was facing a felony charge. Although he claims that it is “more probable than not that the case would be resolved in the near future,” Father admitted at the hearing that he did not know with any certainty when he would be released from jail and that he was facing a potential 2 1/2–year prison sentence. Father's case workers did not believe that Father was capable of managing his own best interests and did not feel that he had shown sufficient improvement between July 2012 and September 2013 to indicate that he was going to complete case plan tasks or be able to reintegrate with the children in a short amount of time. Additionally, there was no evidence presented at the hearing regarding Father's ability to find employment or housing after his release from jail, and this court can only speculate as to when, if ever, Father would be able to maintain stable employment or provide a stable home for the children. The district court properly determined that Father's unfitness was unlikely to change in the foreseeable future. See In re M.B., 39 Kan.App.2d at 47.
For all these reasons, when viewed in the light most favorable to the State, there is clear and convincing evidence to support the district court's findings that Father was unfit and that the conduct or condition that rendered him unfit was unlikely to change in the foreseeable future.
Affirmed.