Opinion
No. 112,254.
2014-12-19
In the Interest of A.A., DOB XX/XX/12, In the Interest of J.I.A., DOB XX/XX/13.
Appeal from Johnson District Court; Kathleen Sloan, Judge.Richard P. Klein, of Olathe, for appellant natural father.Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Amy Vinton, guardian ad litem, for appellee.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
Richard P. Klein, of Olathe, for appellant natural father. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Amy Vinton, guardian ad litem, for appellee.
Before MALONE, C.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
J.A. (Father), natural father of A.A. and J.I.A., appeals the district court's decision to terminate his parental rights. Father contends that the district court's findings of his unfitness were not supported by clear and convincing evidence. Father also asserts the State failed to take reasonable steps in the reintegration plan to accommodate his mental disability. Finally, Father argues the evidence does not support the decision that termination of his rights was in the best interests of the children. For the reasons explained herein, we affirm the district court's judgment.
We will set forth the factual and procedural history of the case in detail. The State began receiving reports about the family on June 26, 2012, shortly after A.A.'s birth. At the time, Father and P.S. (Mother) lived together with A.A. in Olathe, Kansas. Hospital personnel reported concerns about the parents' ability to care for A .A. Home health care workers from local hospitals and a social worker from Healthy Families visited the family at their home. On July 5, 2012, a report was made that A.A. had been subjected to physical abuse by an unknown perpetrator based on bumps on her head. However, it was later determined that the bumps had been caused during the birth process and had been recorded in the doctor's notes at the time of birth.
On July 24, 2012, police were called to the family's apartment by the maternal grandmother. The grandmother had heard a loud noise. When she investigated, she was told by Mother that Father had punched her in the face while she was holding A.A. When grandmother entered the room, she saw Father hitting himself with a lamp. Father admitted to police that he and Mother had been in an intense argument and that he lost control and slapped Mother. He hit her knowing that she had metal plates in her jaw from a previous abusive relationship. Father was charged with domestic battery.
On September 27, 2012, the Kansas Department of Children and Families (DCF) received another report. According to the report, Father started choking A.A. because she was crying and would not stop. Mother also reported that Father refused to buy diapers or formula for A.A. When DCF investigated, Mother told the assigned social worker of the incident and stated that Father had tried to grab A.A. before. Mother reported that Father was often angry and violent and she did not know what would upset him. Another social worker had cautioned Mother that A.A. might be removed from the home if Mother remained with Father. Although Mother went to stay with a friend briefly, she returned to Father within a day or two.
In light of these incidents and the fact that Mother had another child removed from her care in 2007, the State filed a child in need of care (CINC) petition and requested removal of A.A. from the home. The district court issued an ex parte order of protective custody finding an emergency existed justifying the removal. After a hearing, the district court ordered that A.A. remain in DCF custody in out-of-home placement. In January 2013, the district court adjudicated A.A. as a CINC after Mother stipulated and Father entered a no contest statement to the petition. The district court ordered that A.A. remain in DCF custody and that Mother would have 90 days to work toward reintegration.
DCF drafted a formal reintegration plan for both parents for a 3–month period. The parents were required to maintain safe and suitable housing for themselves and A.A. The parents were to notify DCF promptly of any change of residence. They were both ordered to maintain adequate income to support A.A. They were to take and use information from age-appropriate parenting classes and refrain from using physical punishment or verbal aggression with A.A. The district court ordered both parents to participate in a level 2 psychological assessment and a developmental assessment.
In December 2012, Father entered a guilty plea to the domestic battery charges. He was placed on 12 months' probation and was ordered to undergo a domestic violence assessment and comply with its recommendations. In the CINC case, Father was ordered to comply with all the terms of his probation. Both parents were ordered to be consistent with visitation and were to be financially responsible for any costs incurred by complying with the ordered tasks.
In July 2013, the State filed a motion for termination of both parents' rights to A.A. The motion cited case workers' concern with Father's inability to deal with A.A. when she became fussy, parents' difficulty in understanding a child's developmental needs, and their inability to care for A.A. without supervision. The parents were under threat of eviction from their current residence and neither parent had provided proof of employment. Father had not completed anger management classes. The petition also alleged that several months earlier, A.A. had been diagnosed by physicians as having shaken baby syndrome; A.A. was nearly blind, has low cognitive processing, and has constant sinus congestion. The State also alleged that Mother also had relinquished her rights to another child in 2007.
The hearing on the motion to terminate originally was scheduled for October 4, 2013. The day before the hearing, Mother relinquished her rights to A.A. and the hearing was continued to December as to Father.
On November 9, 2013, Mother gave birth to J.I.A., with Father being the putative father. The parents and J.I.A. planned to live at the paternal grandmother's home for a week after their release from the hospital. The parents reported that they were trying “to make a choice” between A.A. and J.I.A.
The State filed a CINC petition as to J.I.A. on November 14, 2013, citing the family's history with DCF, the pending motion to terminate as to A.A., and on-going concerns. An order for temporary custody was issued the same date. By December 6, 2013, the State filed a motion to terminate the parents' rights to J.I.A. On or prior to the termination hearing, Mother relinquished her parental rights to J.I.A. as well.
On April 14, 2014, the district court held a combined CINC and termination hearing as to Father's rights to J.I.A. and a termination hearing as to his rights to A.A. Dr. Steve Hazel, a licensed psychologist, testified for the State. Hazel met with Father on four occasions in December 2012 and January 2013. He prepared an evaluation report based upon his assessment of Father, and the district court admitted a copy of the report during the hearing.
Hazel's report discussed background information about Father and the family. Paternal grandfather had advised Hazel that he was “full of concerns” about A.A. and believed that Father had difficulty caring for himself without structure and support and he did not see how the parents could take care of A.A. However, the grandfather agreed that Father loves A.A. and is good with her, but Father and Mother never had a good relationship. During his interview with Father, Hazel noted that Father appeared slow at processing and interpreting information and his scores indicated he was defensive with respect to issues regarding A.A. Father received special education services while he was in school and graduated from high school in 2007. Father reported working briefly at Walmart and for the Salvation Army for the last 18 months. Father had been receiving social security benefits since 2010. Father discussed the domestic abuse allegations and, despite his guilty plea, denied intentionally striking Mother or hurting A.A.
Based on testing, Father has an IQ of 63 that Hazel classified as mild mental retardation. On intelligence scale tests, Father's full scale IQ was “extremely low” with his overall thinking and reasoning abilities exceeding only approximately 1 percent of individuals his age. His ability to sustain attention, concentrate, and exert mental control tested extremely low as well. Father's nonverbal skills, however, were on the borderline range, much higher than his verbal skills, and he tested high when analyzing and synthesizing abstract visual stimuli. A personality assessment indicated Father can be self-centered, tended to feel entitled, and had an excessive sense of self-importance. In summary, Hazel determined that Father demonstrated poor adaptive functioning and was likely to experience difficulties in applying problem-solving skills to new situations, in applying attained knowledge in routine situations, and in his overall judgment.
Hazel agreed that his evaluation was designed to outline what needs to be accomplished so Father can be an adequate parent for the child. Hazel acknowledged that Father appeared to care for A.A. and that he communicated and interacted with the child during his observations of visitations. Hazel testified that to succeed, the services provided to Father had to be geared toward a person with a lower cognitive function and tailored for his limitations. Hazel testified that one of the most important factors in this situation is for the low functioning parent to have a strong support system. Hazel was not aware of an organization that might have such a tailored parental instruction program other than KVC, Johnson County Mental Health, or Johnson County Developmental Supports. Hazel did not know enough about these programs to know what it would take to qualify for these services.
Hazel observed Father and Mother at two separate visitations with A.A. at KVC offices. Both interacted appropriately with A.A. and A.A. appeared comfortable with them. A.A. was 5 or 6 months old at the time. During the second visitation, Father received a phone call, and left the room, missing the remaining one-half of the visit. Hazel admitted that Mother gave directions to Father and he complied; Mother tended to do more of the basic caretaking of the child.
Bridget Cantwell, the KVC therapeutic case manager, also testified for the State. Cantwell reviewed the entire KVC file when she took over the case, including the notes of her predecessor. Cantwell had just graduated with her Master's degree and started working with KVC when she started on A.A.'s case, and she worked under the review of a supervisor.
After Cantwell started working on the case, Father did not maintain stable housing. At the time she became involved, the parents reportedly lived in an apartment on Crossroad Street. However, when Cantwell went to review the apartment, no one was home. Cantwell discovered the parents had moved without her knowledge and they failed to report their change of address to KVC.
In June 2013, the parents reported they were living in an apartment on Poplar Street. Cantwell scheduled a walk-through of the apartment a day in advance, but the parents seemed surprised a walk-through was necessary. Father seemed very flustered and tried to reschedule the visit. Mother then called the morning of the walk-through and cancelled, reporting they were moving to her uncle's house; Mother did not provide Cantwell the address of the uncle's home.
In late July, Mother advised Cantwell they had found another apartment and would be moving once they paid the deposit. In early August, the parents reported that Father had found a place for them to live in Missouri. Father reported they were moving to Missouri so Kansas officials could not remove the baby Mother was then expecting. No lease or other documentation for any of these homes was provided to KVC. Finally, in December 2013, Cantwell was able to perform a walk-through of a residence on Poplar Street where the parents were then living; they gave Cantwell a copy of their lease of the residence. Based upon the condition of the home and the lack of baby supplies, Cantwell concluded in-home visitation was not yet possible.
Throughout the case, the parents failed to follow through on various case plan requirements. Father failed to provide proof of steady income or employment. After the reintegration plan expired, Father provided some pay stubs from Labor Ready and then the Salvation Army; most of the stubs were for weekly payments between $20 and $100. Father was not working in January 2014, but reported that in February 2014 he had started working for a landscaping company with a friend; he provided no pay stubs or other documentation reflecting this employment. Father never advised the social workers that he received social security disability benefits. While Father prepared six or seven monthly budgets, they all included income from both parents; his income in those budgets was never more than $200.
Father did complete some tasks of the reintegration plan. He completed his psychological exam. Father did have transportation, including a driver's license and auto insurance. Father did complete a batterer's intervention program, although his probation had to be extended for him to finish the program. He also took parenting classes. There were no concerns about use of illegal drugs and Cantwell never asked Father to provide a UA. Father attended a vast majority of his visitations, missing only three visits. Father completed some of the recommendations of the psychological examination, but failed to take anger management classes. Cantwell told Father he had to complete the anger management classes despite what he was told by his probation officer; it appears he never completed these classes. On one occasion, Father became so upset about court that he needed to be told to step outside to calm down.
Cantwell observed many visitations. Even after Father took parenting classes, she did not see any improvement with his parenting skills. Mother was the predominant care provider during the visits and either she or Cantwell would direct Father what he needed to do. Cantwell also had to redirect Father to visit with the children because he often wanted to discuss the case or other inappropriate topics during the visits. On more than one occasion, Father stepped out of the visitation to take a phone call.
In early 2014, Father had his first visit with the two children without Mother being present. He had three “solo” visitations. During these occasions, Father did not seem to be able to handle parenting both children on his own. J.I.A. would stay in his car seat until the paternal grandmother arrived to assist Father. A.A. cried during most of these visits, and Father did not know how to comfort her. Cantwell had to prompt him to hold her, try to give her food, and otherwise comfort her. He still needed constant reminders not to talk about the case during these visitations. Father did not seem to understand or believe doctors regarding A.A.'s medical issues.
Cantwell was not aware of any specific parenting classes that were geared toward parents with cognitive delay. When she redirected Father during the visits, she gave him concrete and simple instructions and would tell him when his actions were not appropriate. Cantwell's predecessor gave Father referrals and information regarding places providing parenting classes and their schedules. Cantwell admitted that her training did not involve teaching parenting skills to parents with cognitive disability. Cantwell was aware of organizations called Community Developmental Disabilities Organization and Families Together, Inc., but she did not refer Father to these services. She was not aware whether Catholic Charities had a disability program.
Based upon all her interactions with Father, Cantwell had serious concerns about his ability to parent two young children. As of the date of the termination hearing, A.A. was 2 years old and had been in DCF custody for all but 4 months of her life. J.I.A. was 5 months old and had been in DCF custody for all but a few days of his life. Cantwell believed Father would need a significant period of time to address his parenting issues and, based on the lack of progress since A.A. had been removed from the home, she did not believe Father would ever be able to address those concerns. Cantwell also was concerned that Mother relinquished her rights to the children, but Father was apparently still living with her. Based on the children's bonding with each other and their foster parents, together with the remaining issues with Father, Cantwell testified that it was in the best interests of the children that Father's parental rights be terminated.
Kelsey Clark, a licensed social work specialist for DCF, also testified for the State. In November 2013, Clark was assigned to investigate concerns about newborn J.I.A. The concerns were that Mother already had four children removed from her care and there were safety issues in the home. In addition, Clark was aware that A .A. was in DCF custody. Before J.I.A. and Mother were discharged, the parents agreed to stay with the paternal grandmother, R.D., for a period so the grandmother could provide assistance if it was needed. There was no indication that the couple would be staying with the R.D. permanently. Clark went to the grandmother's home the next day, a home health nurse from the hospital was there meeting with the family. Clark observed that Father was not engaged in the meeting and did not appear to be paying attention. She was concerned that he did not appear to want to learn more about how to appropriately care for his child.
Clark and Father discussed the prior report of domestic abuse against Mother. During their conversation, Father kept referring to it as the “incident” and acted as if it was a minor issue. Clark believed Father was not fully accepting responsibility for the incident. Father also admitted that he had been shown a video regarding shaken baby syndrome and stated he knew not to do that.
At the parties' request and with the consent of all, the district court took judicial notice of CINC files involving A.A. and J.I.A., the charging document and sentencing journal entry reflecting Father's conviction for domestic battery, and the stipulated testimony of another witness. The district court also took judicial notice that Father had completed his probation in the domestic battery case.
Finally, R.D. testified that Father received a little less than $500 per month in social security disability payments. Father grew up in R.D.'s home. She never saw Father to be violent with other people. She was aware of Father's 2012 conviction of domestic battery, but she did not know of any other violent actions by Father. R.D. testified that Father was currently in an apartment with Mother. She was not aware of any reason he could not continue to live there. However, if he could not live there any longer, Father could stay in R.D.'s house. She also was willing to provide him financial assistance.
R.D testified that Father received services for his impairment while he was in school, including speech and physical therapy. Father moved out of her home when he was a sophomore in high school and moved in with his father. R.D. moved to Virginia. She understood Father accessed independent living services for job placement after he graduated from high school. R.D. had not sought to be a placement for the children because until recently, her daughter and her daughter's children were living with R.D. She had not had regular visitation with A.A. and J.I.A. while they were in State custody.
After hearing all the evidence, the district court took the case under advisement. On July 22, 2014, the district court issued its memorandum decision. The district court set forth factual findings. Based on Hazel's evaluation, the district court found that Father would need permanent and ongoing parental support and social services support in order to keep the children. The district court expressed concern that Father intended to continue to live with Mother, who had relinquished her rights to the children and with whom there has been a history of domestic violence. The district court noted the instability of the relationship and that Father relied on Mother for financial support. The district court expressed concern about Father's failure to complete anger management classes.
The district court found that Father was unfit under K.S.A.2013 Supp. 38–2269(b)(1) (mental deficiency rendering him unable to care for the children); (b)(7) (reasonable efforts were made to rehabilitate the family); (b)(8) (lack of effort by Father to adjust his circumstances). The district court also found that Father was unfit under K.S.A.2013 Supp. 38–2269(c)(2) (Father's inability to maintain regular and appropriate visitation) and (c)(3) (failure to carry out the reintegration plan.) In addition, the district court found that Father's unfitness was unlikely to change in the immediate or foreseeable future. In light of both children's need for permanency, the district court found that it was in the children's best interests for Father's parental rights to be terminated. Father timely appealed the district court's judgment.
On appeal, Father contends there was insufficient evidence to support a finding that he was unfit at the time of the termination hearing. He also contends there was insufficient evidence to establish that he would remain unfit in the foreseeable future.
When the appellate court reviews the district court's termination of parental rights, it should 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 is unfit by reason of conduct or condition which renders the parent unable to care properly for the children and the conduct or condition is unlikely to change in the foreseeable future. In re B .D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). The appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. The court construes the phrase “foreseeable future” in terms of “ ‘child time’ “ as opposed to “ ‘adult time.’ “ In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
On appeal, Father's primary argument is that the State failed to comply with K.S.A.2013 Supp. 38–2201(c) by failing to consider the availability and use of accommodations for Father's disability. Father contends that the State, through KVC, failed to make reasonable efforts to rehabilitate the family by failing to refer him to resources that could, he contends, provide the type of training needed by a person of his limited mental capacity.
For the first time on appeal, Father argues that the Kansas statute should be construed similarly to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et. seq. (2012). Father cites cases from various states interpreting their child-protection statutes as requiring the State to prove reasonable accommodations consistent with ADA standards.
Generally, Kansas appellate courts will not consider issues raised for the first time on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). Moreover, Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised in district court should be considered for the first time on appeal. A litigant who fails to comply with this rule risks a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). For these reasons, we find that Father's arguments concerning ADA compliance are not properly before this court for the first time on appeal. But in passing, we note that several courts have concluded that termination of parental rights proceedings are not “services, programs or activities” under the ADA, and the ADA does not apply in termination proceedings as a defense to the termination of parental rights. See In re Antony B., 54 Conn.App. 463, 472, 735 A.2d 893 (1999); In re B.K.F., 704 So.2d 314, 317–18 (La.1997); In re Terry, 240 Mich.App. 14, 24–25, 610 N.W.2d 563 (2000); In re B.S., 166 Vt. 345, 350–52, 693 A.2d 716 (1997).
Thus, the only question properly before this court is whether the State complied with K.S.A.2013 Supp. 38–2201(c). Interpretation of a statute is a question of law subject to de novo review. Schlaikjer v. Kaplan, 296 Kan. 456, 463–64, 293 P.3d 155 (2013).
K.S.A.2013 Supp. 38–2201(c) provides as follows:
“(c) Nothing in this code shall be construed to permit discrimination on the basis of disability.”
(1) The disability of a parent shall not constitute a basis for ... the termination of parental rights without a specific showing that there is a causal relation between the disability and harm to the child.
(2) In cases involving a parent with a disability, determinations made under this code shall consider the availability and use of accommodations for the disability, including adaptive equipment and support services.” (Emphasis added .) K.S.A.2013 Supp. 38–2201.
Here, the evidence clearly established that Father's disability is causally related to harm or potential harm to the children. Father exhibited physical violence toward Mother in the presence of A.A. as confirmed by his guilty plea to domestic battery. Father's cognitive limitations make it extremely difficult for him to learn parenting skills, to determine the children's needs, and to care for the children, one of whom also seems to have cognitive impairments.
As recently noted by this court:
“[N]othing in the language of K.S.A.2013 Supp. 38–2201(c)(2) precludes a court from terminating parental rights where a disabled parent shows an ability to co-parent with certain accommodations. Rather, the statute only requires the court to ‘consider the availability and use of accommodations for the disability, including adaptive equipment and support services' before terminating the rights of a disabled parent.” In re J.R.-V., No. 111, 411, 2014 WL 3907122, at *6 (Kan.App.2014) (unpublished opinion).
The paramount concern of the CINC code is the safety and welfare of the child. K.S.A.2013 Supp. 38–2201(b)(1). The protections of the “ongoing physical, mental and emotional needs of the child” are “decisive considerations” under its provisions. K.S.A.2013 Supp. 38–2201(b)(3). Of course, this does not mean that a parent's rights are disregarded. Rather, as this court has pointed out: “Termination of parental rights is a triangle which balances the State's interest as parens patriae along with the parents' rights to preserve the family relationship and the child's best interests.” In re L.B., 42 Kan.App.2d 837, 842, 217 P.3d 1004 (2009), rev. denied 289 Kan. 1278 (2010).
Although Father's counsel provided a list of potential service providers that he was not referred to, there is no evidence of the types of programs these groups have available, whether Father would qualify for services, or how long it would take him to complete any programs to aid him in acquiring the necessary skills to be a parent. Moreover, an agency “is not required to exhaust any and all resources to rehabilitate a parent” nor does the CINC code require “a herculean effort to lead the parent through the responsibilities of the reintegration plan.” In re Y.E.Z., No. 108,540, 2012 WL 3491294, at *5 (Kan.App.2012) (unpublished opinion).
In addition, the district court properly focused on whether Father could parent these children notwithstanding Mother's presence in the home. Mother relinquished her rights to the children in this appeal and has no further legal obligation toward them. See In re J.R.-V., 2014 WL 3907122, at *6 (court's focus on this issue did not violate the anti-discriminatory provisions of K.S.A.2013 Supp. 38–2201[c] ). Accordingly, the district court's decision to terminate Father's parental rights did not violate K.S.A. 38–2201(c)(2). Based upon the record, there was clear and convincing evidence that Father was unfit and that his unfitness was unlikely to change in the foreseeable future.
Father also claims that the district court abused its discretion in finding that it was in the best interests of his children to terminate his parental rights. Father argues that allowing the children to live with him and their paternal grandmother, R.D., would have been a better option for the children.
Once the court makes a finding of unfitness, it must consider whether terminating the parent's rights is in the best interests of the child. K.S.A.2013 Supp. 38–2269(g)(1); In re K.W., 45 Kan.App.2d 353, 354, 246 P.3d 1021 (201 l).The parties agree that the standard of review for the discretionary best-interests decision is abuse of discretion. In re R.S., 50 Kan App.2d ––––, 336 P.3d 903, 909 (2014). Under this standard, the court reviews for abuse of discretion, which occurs when no reasonable person would agree with the district court or the district court premises its decision on a factual or legal error. In re R.S., 336 P.3d at 910 (citing Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 [2011] ).
As Father noted, K.S.A.2013 Supp. 38–2269(g)(1) requires the court, in making the best-interest determination, to give “primary consideration to the physical, mental and emotional interest of the child.” Although Father clearly loves his children, he simply lacked the resources to raise two young children, one with physical and mental disabilities of her own. While A.A. acted positively toward Father when he visited with Mother, the interaction between him and A.A. was less positive when he visited by himself, perhaps due to the stress of interacting with two children. There was not evidence of a strong bond between Father and either of his children, especially since both were removed from Father's home at a very young age. Father's suggestion now that he could move in with R.D. does not establish that he could care for the children's needs. In addition, R.D. only attended a limited number of visitations and there was no evidence that she had developed a strong bond with the children. Based upon the record, the district court did not abuse its discretion in finding that it was in the best interests of A.A. and J.I.A. to terminate Father's parental rights.
Affirmed.