Opinion
112,369.
04-17-2015
In the Interest of C.H. d/o/b XX/XX/2011 a Male.
James T. Yoakum, of Kansas City, for appellant. Susan Alig, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
James T. Yoakum, of Kansas City, for appellant.
Susan Alig, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Before HILL, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
M.H. (Father) is the natural father of C.H. In April 2014, the district court found clear and convincing evidence that Father was unfit to parent C.H. and the conduct or condition rendering him unfit was unlikely to change in the foreseeable future; as such, the court terminated Father's parental rights. On appeal, Father contends; (1) The court erroneously determined he had failed to comply with court orders; (2) the social service agencies involved had failed to assist him to maintain a relationship with C.H. throughout Father's incarceration; (3) the court therefore terminated his parental rights based solely on his incarceration; and (4) terminating Father's rights was not in C.H.'s best interests.
The State proceeded at the termination trial by proffer. The State's proffer indicated Father had only (1) sent two letters to and made one phone call to his court supervision officer (CSO), (2) completed a couple of hours of parenting class, and (3) completed a drug class during the 18 months of this case. The record includes no evidence that Father made any attempt to contact C.H. throughout this case or that he and C.H. had a relationship prior to Father's incarceration. The record indicates C.H. had been in the custody of the Kansas Department for Children and Families (DCF) for 18 months at the time of the termination trial and Father had 10 months remaining on his sentence. The court found this unduly delayed C.H.'s right to permanency. Based on the State's proffer and other facts in the record, we find sufficient evidence supports the district court's ruling.
This appeal involves only Father's rights. However, C.G. (Mother) had a second child, B.B., with another father. Many of the hearings and the termination trial were held for both children and all three parents. Only information relevant to Father's termination is included.
C.H. was born June 21, 2011. Father was incarcerated at the Federal Correctional Institution in Elkton, Ohio on August 25, 2011, for felony distribution of heroin. The record is silent on Father's involvement with C.H. prior to his incarceration.
On October 30, 2012, DCF received a report with concerns regarding C.H. following a domestic dispute between Mother and her mother, E.M. Mother had outstanding warrants and was taken into custody. E.M. did not want to take custody of C.H., so C.H. was placed in police protective custody.
On October 31, 2012, the State filed a petition alleging C.H. was a child in need of care (CINC) pursuant to K.S.A.2012 Supp. 38–2234. That same day DCF filed an ex parte order of protective custody and to determine C.H. was a child in need of care.
Father did not appear in person at any of the hearings regarding C.H. However, he was represented by an attorney at most of them. On November 1, 2012, the district court granted temporary custody to the State. The court noted that social service agencies did not need to make reasonable efforts to maintain C.H. in the home because both Father and Mother were incarcerated at the time of the petition, and as of November 1, 2012, Father remained incarcerated and Mother's whereabouts were unknown.
On November 7, 2012, Father spoke with his CSO Karen Younger from prison and reported he was scheduled for release for good conduct on February 3, 2015. Father's case manager in the prison provided a memorandum corroborating this. Father indicated he planned on going to parenting class while in prison and he did not want his rights terminated. Father had previously written a letter indicating he did not want his rights terminated. The CSO provided Father with C.H .'s guardian ad litem's (GAL) contact information. Younger had no other contact with Father.
On November 13, 2012, the district court reaffirmed custody of C.H. with DCF.
At some point prior to January 2013, Father told a case worker he would provide the case worker with a lists of family members who could potentially take custody of C.H. Father never provided the list.
On March 23, 2013, Mother stipulated to the State's petition and agreed C.H. was a CINC. Father did not stipulate. On March 25, 2013, the district court adjudicated C.H. to be a CINC. Father did not challenge this ruling. The court reaffirmed C.H.'s custody with DCF and reaffirmed its previous orders.
In August 2013, Father filed a document entitled “Response to K.S.A. 38–1534 Notice.” It is unclear what prompted this response as K.S.A. 38–1534 was previously repealed, effective as of January 1, 2007. However, the substance of Father's document expressed his desire to work and raise his children “to the best of [his] ability being a positive role model in their life.” Father also expressed his hope that his children would be raised in a positive household.
On August 27, 2013, a case worker recommended termination of the parental rights of Mother and both Fathers based on lack of progress made. On September 11, 2013, the district court held a permanency hearing. The court determined reintegration was no longer a viable goal for C.H.
On November 5, 2013, the State filed a motion for termination of parental rights of Mother, Father, and B.B.'s father.
On March 31, 2014, the district court received a letter from Father. Father expressed concern that his attorney was not staying in contact with him and Father said he lacked confidence in the attorney's abilities. Father requested the court to help resolve this issue. The record does not reveal the court's response.
On April 17, 2014, the district court held a trial on the State's motion to terminate Father's parental rights. Father was not present but was represented by counsel, James Yoakum. Yoakum represented both Father and B.B.'s father. Yoakum indicated that Father wished to keep his parental rights. Father claimed he would not be in jail long term. Because Father was not present, the State proceeded by proffer. Yoakum indicated Father would not stipulate to any of the State's proffer but did not formally object to the proffer. The State offered the following proffer in regards to Father: Father was incarcerated in a federal penitentiary for possession with the intent to distribute heroin; he had contacted his CSO by phone on November 7, 2011, and has sent letters to his CSO December 23, 2013, and March 13, 2013; he was set to be released on February 3, 2015: and the CSO understood that Father had completed a drug education program and completed three parenting classes. That was the only information the State had on Father. Father's attorney had no additional evidence to present.
The district court noted Father's case was difficult. The court determined that incarceration alone might not be sufficient to terminate Father's rights. However, the court evaluated Father's efforts to meet the court orders to maintain contact and an ongoing relationship with C.H. The court recognized Father's awareness of the importance of getting proof of the things he had been doing towards a successful resolution of the case. However, the court determined Father had “failed to ... provide anything that shows that he has an ongoing relationship with the child, that he has been in contact or communication.”
Father's only compliance with court orders was “a couple hours of parenting classes and a drug treatment class.” The district court determined that was insufficient. The court found there was not a “reasonable chance that the father is going to be able to care for his child in the foreseeable future, or that he has an ongoing relationship with the child.”
The district court acknowledged that C.H. had been in custody for 1 1/2 years at the time of the termination hearing and Father had been in custody for most of C.H.'s life. Documentation of Father's conviction and sentence are not in the record. However, the court seemed to have the documentation when it ruled. The court stated that even if Father was released in February 2015 or earlier to a home detention, the plea and petition indicated he would have to go to a halfway house upon release. The court found that it would be an undue delay to C.H. to wait for Father's release, considering the time it would take Father to prepare to render proper care to C.H.
The district court terminated Father's parental rights. The court found Father had been convicted of a felony, under K.S.A.2013 Supp. 38–2269(b)(5). The court found Father was unfit by conduct or condition that rendered him unable to properly care for C.H. and the conduct or condition was unlikely to change in the foreseeable future. The court also determined termination of Father's rights was in the best interest of C.H.'s physical, mental, and emotional needs.
On April 23, 2014, the district court issued its written order terminating the rights of Father. Father appeals.
Father argues the district court erroneously terminated his rights. He contends the court incorrectly determined he failed to comply with court orders and made erroneous factual findings, the social service agencies involved failed to help him maintain communication with C.H., and the court erroneously determined termination of his rights was in C.H.'s best interests.
When reviewing the district court's decision to terminate parental rights, we must “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). In making this determination, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
If a child is adjudicated a CINC, parental rights may be terminated when “the court finds 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 .”K.S.A.2013 Supp. 38–2269(a). The Revised Kansas Code for Care of Children (Code) lists a number of nonexclusive factors the district court must consider in determining a parent's unfitness. K.S.A.2013 Supp. 38–2269(b), (c). Any one of the factors may, but does not necessarily, establish grounds for terminating the parent's rights. K.S.A.2013 Supp. 38–2269(f). The district court is not limited to the statutory factors, either. See K.S.A.2013 Supp. 38–2269(b).
In the present case, the district court found Father unfit based on Father's conviction of a felony and term of imprisonment, satisfying K.S.A.2013 Supp 38–2269(b)(5) (finding unfitness for conviction of a felony and imprisonment).
Our Supreme Court discussed the propriety of considering an incarcerated parent's attempts to remain in their child's life in the context of a contested adoption under K.S.A.1986 Supp. 59–2102(a)(3) :
“When a nonconsenting parent is incarcerated and unable to fulfill the customary parental duties required of an unrestrained parent, the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability. It is obvious that a parent imprisoned for a long term cannot provide the customary parental care and guidance ordinarily required. If an imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her children, it is for the trial court to determine the sufficiency of such efforts.” (Emphasis added.) In re Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145 (1987).
Notably, in making these comments, our Supreme Court pointed out that “the fitness of the [nonconsenting] parent is not a controlling factor under K.S.A.1986 Supp. 59–2102(a)(3) as it would be in a proceeding to sever parental rights pursuant to K.S.A. 38–1581 et seq. [the predecessor to the Revised CINC Code].” 242 Kan. at 235. Nonetheless, these same considerations have factored into our court's analyses of incarcerated parents' unfitness due to incarceration in the context of termination of parental rights under the CINC Code. See, e.g., In re S.D., 41 Kan.App.2d 780, 789–90, 204 P.3d 1182 (2009) (citing In re M.B., 39 Kan.App.2d 31, Syl. ¶ 10, 176 P.3d 977 [2008] ); In re M.D.S., 16 Kan.App.2d 505, 510–11, 825 P.2d 1155 (1992).
We will address Father's arguments individually and then consider whether the district court's decision is supported by clear and convincing evidence.
First, Father argues the district court made erroneous findings of fact about him engaging in the excessive use of intoxicating liquors and dangerous drugs. This is a factually incorrect statement. The State did make this allegation generally against all of the parents—Father, Mother, and B.B.'s father—in its petition for termination of parental rights. But the court did not make this finding as to Father from either the bench or in its written ruling. Instead, the court made this finding only as to Mother and B.B.'s father. Therefore, this argument is meritless.
Father also alleges the district court held him “to be unfit based on the failure of DCF's efforts to rehabilitate him to parent C.H. under K.S.A. 38–2269(b)(7).” Father then contends the social service agencies involved made no effort to facilitate communication between he and C.F. This too is a factually incorrect contention. The State did include this factor as a basis for termination against the parents in its petition. But again, the district court did not make this finding as to Father either from the bench or in its written order terminating Father's rights. This argument is meritless, but we will briefly address the efforts of the various social service providers involved.
Father's challenge to the efforts of the social service providers indicates his belief that either the State or the district court had the burden to affirmatively facilitate his contact with C.H. from prison before he could be declared unfit under K.S.A.2013 Supp. 38–2269(a). Father did not challenge the efforts of the various agencies involved below. Generally, issues not raised below generally cannot be raised on appeal. In re Adoption of C.A.T., 47 Kan.App.2d 257, 267, 273 P.3d 813 (2012). However, even if it were properly before us, it would fail.
The Code requires courts to “provide preventative and rehabilitative services, when appropriate.” (K.S.A.2013 Supp. 38–2201(b)(8). Here, Father was in federal prison in Ohio from the beginning of this case. He claims nobody tried to help him maintain contact with C.H. by phone, mail, or other electronic means. There is little precedent articulating what services courts and service providers must offer to a parent incarcerated in federal prison out of state. But courts have continually held that service providers are not required to expend Herculean efforts. See In re A.A., No. 112,254, 2014 WL 7575375, at *8 (Kan.App.2014) (unpublished opinion); In re Y.E.Z., No. 108,540, 2012 WL 3491294, at *5 (Kan .App.2012) (unpublished opinion).
Father was provided with the contact information for C.H.'s GAL in November 2012, but it does not appear the district court or the social services agencies did anything else to facilitate contact between Father and C.H. The record includes no evidence that Father ever attempted to contact C.H.'s GAL despite having the information to do so, but it does include evidence that Father contacted his CSO, the court, and his attorney through written letters and by telephone. Father contends that the agencies made arrangements for Mother to visit C.H. while she was incarcerated, suggesting he did not receive equal treatment to Mother. However, Mother was incarcerated at the state level in a neighboring county, so visits between Mother and C.H. during her incarceration could be facilitated without Herculean efforts. Father was not similarly situated to Mother. Considering Father was incarcerated federally out of state, there is likely little else beyond providing him the GAL's contact information the service providers could have done without a Herculean effort. There is no duty on a district court or the social service agencies to facilitate visitation between a child in DCF custody in Kansas and a parent incarcerated in a federal prison in another state. Additionally, because Father failed to take advantage of the information and opportunity he was provided, any extra effort on Father's behalf would not have been appropriate. Father's challenge to the reasonableness of the efforts of the social service providers fails.
Father also challenges the district court's failure to inquire into the opportunities and options available to Father while in prison. This court has, when terminating a parent's parental rights based on incarceration, considered “ ‘whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability.’ “ In re M.B., 39 Kan.App.2d at 47 (quoting In re Adoption of F.A.R., 242 Kan. at 236 ). This does appear to place a burden on the court to consider an incarcerated parent's efforts but does not place a burden on the court to inquire about the options available in an individual's situation.
Here, Father was incarcerated in a federal prison in another State. While incarcerated, he completed a couple of hours of parenting classes, mailed two letters to his CSO, and called his CSO once. Though he argues on appeal there were no other options available to him, the record is silent on this. Father would have been in the best position to present evidence of the opportunities available to him at the trial. He had an opportunity to present this at the termination trial but he did not. The district court was not required to inquire into the opportunities available to a prisoner federally incarcerated in Ohio. This argument fails.
Father next alleges the district court's decision to terminate his rights is not supported by clear and convincing evidence because he had less than a year to serve on his sentence and he did comply with court orders. Father points out that he completed a “drug treatment class and a couple of hours of parenting classes” while incarcerated. When determining whether termination was proper, the first step we must take is to determine whether a district court's findings of unfitness were supported by clear and convincing evidence.
Some evidence supports Father's contention. The record does indicate Father's anticipated release date was 10 months from the date of the termination trial. Also, in its proffer against Father, the State acknowledged that his CSO understood that Father had completed a drug education program and completed three parenting classes.
But even in light of this, there is clear and convincing evidence to support the district court's termination of Father's parental rights. We must base our decision on a review of the district court's rulings, and the court had to judge Father based on his actions. In the Interest of B.B., No. 112,028, 2015 WL 249774 (Kan.App.2015) (unpublished opinion). Here, Father was convicted of and incarcerated for felony distribution of heroin, he had failed to comply with court orders, and he had made no effort to maintain contact with C.H. The court found this rendered Father unable to care for C.H.
Father acknowledges his incarceration and does not challenge that it was for a felony.
The district court issued its orders regarding C.H., it did so for Mother, Father, and Mother's boyfriend (B.B.'s father). Some orders specifically applied to either Mother or her boyfriend. The following applied to all three parents: (1) The parents shall have contact once per month with the CSO; (2) the parents shall obtain and maintain stable housing and income; (3) the parents shall obtain a psychosocial evaluation and follow the recommendations; (4) the parents shall sign any necessary releases of information for the CSO; (5) the parents shall submit random UAs; and (6) the parents shall resolve all legal issues. While recognizing that Father's incarceration made it impractical to maintain stable housing and income, and there was likely little he could do to resolve his legal issues beyond serving out his sentence, there is clear and convincing evidence Father failed to comply with the orders that were within his power to comply. For example, despite being ordered to have monthly contact with his CSO, between the time Father was made aware of the case in November 2012 and the termination trial in April 2014, Father contacted his CSO only three times.
Further, there is no evidence in the record that Father ever attempted to contact C.H. or his GAL during this case. Incarceration alone is one of the express factors to be considered by the district court pursuant to K.S.A.2013 Supp. 38–2269(b)(5). However, when terminating a parent's rights based solely on incarceration, courts have considered whether an imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her children. See In re M.B., 39 Kan.App.2d at 47. The court recognized Father's awareness of the importance that he provide the court with any documentation of his efforts to comply with orders, yet Father provided no evidence of his efforts to contact or maintain a relationship with C.H. This court has repeatedly held that parental incarceration, when coupled with the parents infrequent and superficial contact with the child, was sufficient to support termination. See In re S.D., 41 Kan.App.2d 780, 790, 204 P.3d 1182 (2009) (termination appropriate for Mother whose only attempt to maintain contact with her child while incarcerated for a felony was a request for a photo of the child); see also In re M.B., 39 Kan.App.2d at 47 ; In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
Additionally, although the district court did not cite it as a basis for termination in its written order, Father's failure to maintain contact with C.H. satisfies K.S.A.2013 Supp. 38–2269(c)(2) (finding unfitness for failure to maintain regular visitation, contact or communication with the child or with the custodian of the child).
Based on these facts, a rational factfinder could have found it highly probable that Father's incarceration and lack of effort to comply with orders or maintain contact with C.H. rendered him unable to care for C.H.'s ongoing physical, mental, or emotional needs under K.S.A.2013 Supp. 38–2269(b)(3).
Our next step is to determine whether clear and convincing evidence supported the district court's determination that Father's behavior was unlikely to change in the foreseeable future. See K.S.A.2013 Supp. 38–2269(a).
Father argues his incarceration was not lengthy and C.H. was not likely as aware of the passage of time as an older child. Father therefore concluded that continuing the termination trial a few more months would not have materially affected C.H. negatively if it meant Father retained his parental rights.
Kansas courts have continually recognized that children perceive time differently than adults. The term foreseeable future is measured from the child's perspective and takes into account a child's perception of time. In re S.D., 41 Kan.App.2d at 790 ; see also K.S.A.2013 Supp. 38–2201(b)(4) (The Code requires courts to “acknowledge that the time perception of a child differs from that of an adult and to dispose of all proceedings under this code without unnecessary delay.”). However, our courts take the opposite approach from Father's—what may seem like a short period of time by an adult will be perceived as a much longer period of time by a child. For example, our courts have determined that incarceration for as few as 7 additional months from the date of the hearing, along with other factors, was sufficient to establish that the parent's condition would not change in the foreseeable future. See In re M.B., 39 Kan.App.2d 31 ; see also In re D.T., 30 Kan.App.2d at 1175 (under circumstances, which included infrequent contact, it would be unreasonable to require child to wait an additional 10 months for parent's release from prison).
Here, at the time of the termination trial, the district court noted that C.H. had been in the custody of DCF for half of his life—at the time of the trial, C.H. was almost 3–years–old and had been in custody for 18 months—and Father's scheduled release date was 10 months from the termination hearing. This means C.H. would have been in custody for a minimum of 28 months at Father's release. See In re C.C., 29 Kan.App.2d 950, 954, 34 P.3d 462 (2001) (when mother's release date, nearly 2 years from termination trial, meant that children would have remained in custody for 30 months' total, court found termination was proper). Here, the district court concern that Father's release date was nearly a year away and any potential earlier release date would result in Father spending time at a halfway house. The court determined that waiting for Father to be released from prison, get through a halfway house, comply with court orders, and get himself prepared to raise a child would present an undue delay for C.H. to achieve permanency. The court could reasonably conclude that it was highly probable Father would be unable to care for C.H. in the foreseeable future from C.H.'s perspective. Father's argument that requiring C.H. to wait almost another year before going to trial on his parental rights would not have materially affected C.H. negatively is not supported by the law or common sense.
The last consideration is whether the district court correctly determined that terminating Father's parental rights was in C.H.'s best interests. K.S.A.2013 Supp. 38–2269(g)(1) provides that even after a finding of unfitness, the district court must determine whether the termination of parental rights is in the best interest of the child.
Because it hears the evidence directly, the district court is in the best position to determine the best interests of the child, and an appellate court cannot overturn it without finding an abuse of discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002) ; In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied 291 Kan. 912 (2010). An abuse of discretion occurs when the district court acts in an unreasonable, fanciful, or arbitrary manner, or when the court bases its decision on an error of fact or an error of law. Northern Natural Gas Co. v. ONEOK Field Services, Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
On appeal, Father very briefly challenges the district court's finding that termination of his parental rights was in C.H.'s best interests. However, based on the evidence, a reasonable person could have agreed with the court on this finding. Father had been in custody since C.H. was 2 months old. At the time of the trial, C.H. had been in DCF's custody for nearly 18 months—half of his life, and Father had nearly a year left on his sentence. Although Father claimed he did not want his parental rights terminated, his failure to act is telling. At the time of trial, Father had only completed a couple of hours of parenting classes. He had made no attempt to contact C.H. or the GAL. Father had made only minimal contact at all regarding C.H.'s case—two letters and one phone call to his CSO over the course of a year and a half. Additionally, the record is silent regarding whether Father had a relationship with C.H. during the 2 months between C.H.'s birth and Father's incarceration.
Father was responsible for his current condition in prison. The record supports the district court's findings that Father had made no effort to establish or maintain a relationship with C.H. He still had nearly a year left on his sentence, so his condition was unlikely to change in the foreseeable future; therefore he could not adequately provide for his son's needs in the near future. As such, the district court's decision to terminate Father's parental rights is supported by clear and convincing evidence.
Affirmed.