Opinion
Nos. 111531 111532.
03-27-2015
In the Interest of D.E. and B.E.
Juanita M. Carlson, of Carlson Law Office, of Lawrence, for appellant natural mother. Jared D. Price, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Juanita M. Carlson, of Carlson Law Office, of Lawrence, for appellant natural mother.
Jared D. Price, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
The mother of D.E. and B.E. (Mother) appeals the trial court's termination of her parental rights to both children. The biological father of both children (Father) had his rights terminated at the same hearing, but he does not appeal those decisions. For the reasons discussed below, we affirm the district court.
In June 2010, 5–year–old D.E. was placed in protective custody with Social and Rehabilitation Services (SRS—now known as the Department of Children and Families [DCF] ) after an incident of domestic violence between Father and Mother in the child's presence. SRS had provided numerous services to the family beginning in April 2008, and the family was minimally cooperative with family preservation services. There was evidence of child neglect and prescription drug abuse by Mother.
The district court initially placed D.E. with Mother but quickly rescinded that order and placed D.E. with others because Mother did not stay in touch with SRS and had left D.E. with family friends the day after the placement. Additionally, Mother and Father had been seen together despite a no contact order. Mother wanted the aggravated battery charges against Father dropped so the family could reunite, and Mother saw no need to participate in the domestic violence counseling, parenting classes, drug and alcohol evaluation, and psychological evaluation ordered by the court.
In August 2010, Mother stipulated, and the court found, that D.E. was a child in need of care (CINC). As part of a case plan aimed at reintegrating the family, the district court directed Mother to attend a domestic violence program, participate in parenting education, receive psychological and parenting evaluations, submit to random urinalyses, receive a drug and alcohol evaluation, receive budgeting assistance, seek individual therapy, partake in medication management, take medication as prescribed, and otherwise cooperate with community services personnel assigned to her case. Mother was generally noncompliant with the conditions imposed for reintegration, though she did refocus her efforts after successfully completing inpatient drug treatment in March 2011.
In July 2011, Mother gave birth to D.E.'s sibling, B.E., and the State immediately sought removal of B.E. from Mother and Father's care. The district court immediately ordered B.E. into protective custody. In August 2011, Mother and Father stipulated, and the district court found, that B.E. was also a child in need of care.
B.E.'s removal from the family caused another period of general noncompliance with the court's orders regarding reintegration. In June 2012, the district court determined that reintegration of the family was no longer a viable option. In July 2012, the State sought to terminate the parental rights of both parents to both children, noting that Mother was presumptively unfit under K.S.A.2012 Supp. 38–2271(a)(5) and (a)(6) due to the duration of time the children had been placed out of the home. At that point, D.E. had been out of the home for more than 2 years, and B.E. had been out of the home for more than a year.
The termination hearing was conducted over a series of days from October 2012 to January 2013. Testimony presented at the hearing established that Mother had failed to find stable housing but had secured social security disability income (SSDI). Mother also declined to prepare a budget or do financial planning. Mother's participation in parenting classes was inconsistent.
Mother's participation in visitations with her children was initially poor but improved over time. Though Mother's parenting skills improved, social workers consistently had concerns about the appropriateness of Mother's discipline, her age-appropriate activities and expectations with the children, and her arguing and inappropriate conversations in front of the children. Unsupervised visits were allowed briefly but were ended because the parents fought in front of the children.
Mother suffered from multiple sclerosis, diabetes, anxiety, depression, and neuropathy. She did not continue with individual therapy and did not participate in medication management as ordered. She informed her case worker that she did not feel she needed either service. Family therapy took place over a period of 9 months and ended when the therapist left for a new job. The therapist felt the family needed continued support, but Mother declined the offer to help find another therapist.
Mother's compliance with drug treatment and follow-up recommendations was inconsistent throughout the case. Mother admitted that she is addicted to methamphetamine and marijuana. She completed an inpatient drug program but relapsed shortly thereafter. She claimed she was attending AA or NA meetings but failed to provide documentation to show her attendance. She missed, refused, or diluted UAs throughout the case. She ignored the court's order for a UA or a blood sample during the course of the trial.
Mother's housing situation remained unstable. At the start of the termination hearing, she and Father were living with a roommate in a two-bedroom apartment, but by the end of the hearing, Mother was essentially homeless again. During the course of the hearing, Mother and Father stopped attending parenting classes. On one occasion the parents were involved in public argument outside of a hospital. Police as well as hospital staff and security were involved. The security officer testified to other recent fights between Mother and Father at the hospital. Further, the police were called to handle an incident at the apartment where Mother and Father were living. Mother and Father were arguing when police arrived. Father's hand was bleeding. Mother claimed she had accidentally stabbed Father in the hand three times. She was arrested at the scene. Following this incident, Mother moved out of the apartment and stayed in hotels or with her mother.
The district court ultimately terminated Mother and Father's parental rights to both children in a decision containing exhaustive written findings. The court found Mother unfit based on five separate statutory bases—K.S.A.2012 Supp. 38–2269(b)(1), (b)(3), (b)(7), and (b)(8) and K.S.A.2012 Supp. 38–2271(a)(5) and (a)(6) —and determined that the termination of parental rights was in the best interests of both children. Mother challenges each of the district court's determinations of unfitness.
Unfitness—Clear and Convincing Evidence
Evidence that a parent is unfit and likely to remain unfit in the foreseeable future must be clear and convincing. K.S.A.2013 Supp. 38–2269(a). In our review we determine whether a rational factfinder could have found Mother unfit under this standard. In doing so we view the evidence in the light favoring the State, but we do not reweigh the evidence, judge the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
The district court may base its finding of unfitness on one of several bases outlined by the legislature. See K.S.A.2013 Supp. 38–2269(a) –(c). If supported by clear and convincing evidence, a single statutory basis for unfitness can support terminating a parent's rights, though courts should consider all applicable factors. K.S.A.2013 Supp. 38–2269(f).
In considering whether a parent's unfitness is unlikely to change in the foreseeable future, the court must examine the issue from the perspective of a child because children and adults have different perceptions of time and children have a right to permanency within a time frame reasonable to them. In re M.B., 39 Kan.App.2d 31, Syl. ¶ 9, 176 P.3d 977 (2008) ; In re A.A., 38 Kan.App.2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008).
Mother argues that the district court erred by finding that she was unfit because it did not identify the nature of her mental or emotional illness, and there was no evidence that she refused treatment. She claims she was treating her depression with therapy and medication, that she complied with the reintegration plan, was cooperative in therapy, and had addressed her substance abuse issues. She asserts that the State did not properly plead the presumptions of unfitness and that she is fit and able to care for her children.
Mother was diagnosed early on in the case with a major depressive disorder. A later psychological evaluation diagnosed her with polysubstance dependence and depression disorder. Mother testified that she has suffered from depression since the age of five. She did not comply with orders that she receive individual therapy, only completing three sessions. She was unwilling to commit to professional therapy because she did not feel she needed it, disagreed with her diagnosis, and did not like opening up to others. Although she was prescribed medications for depression and anxiety, she has a history of stopping her medication, apparently as an act of self-professed rebellion.
Mother did complete inpatient drug treatment but relapsed during and after her pregnancy with B.E. She frequently did not submit UAs when asked to do so, stating that her MS medication made it difficult for her to urinate. She was asked to provide confirmation of this problem from her medical provider but failed to do so.
The State provided Mother with multiple resources aimed at rehabilitating the family for more than 2 years. But Mother and Father still have an abusive relationship and no stable housing, and Mother continues to demonstrate questionable parenting skills and a distinct lack of insight as to how her behaviors affect her children.
We conclude that a rational factfinder could have found clear and convincing evidence that Mother was unfit, that her condition was unlikely to change in the foreseeable future, and that her parental rights should be terminated.
In regard to the presumptions of unfitness found in K.S.A.2012 Supp. 38–2271(a)(5) and (a)(6), we note that the State notified Mother of its intent to apply the presumption in its permanency motion filed on July 12, 2012. Mother's reliance on In re K.R., 43 Kan.App.2d 891, 233 P.3d 746 (2010), to show error here is misplaced because the State was not required to specify the subsection of K.S.A. 60–414 upon which it intended to rely. The State was only required to give the mother notice of its intent to seek the presumption.
Here, the State presented clear and convincing evidence that both children had been in out-of-home placement for more than 1 year and that Mother substantially neglected or willfully refused to carry out a reasonable plan, approved by the court, for reintegration of the children into her home. With respect to D.E., there was clear and convincing evidence that she had been in out-of-home placement for more than 2 years, While Mother may have made some strides toward better parenting and sobriety, her backsliding justified the district court applying these presumptions. At that point, Mother failed to rebut these presumptions by showing by a preponderance of the evidence that she was a fit parent or would become fit to care for her children in the foreseeable future.
Americans with Disabilities Act
Mother asserts that the social workers did not provide her with services to adequately accommodate her disabilities despite their awareness of her health issues, contrary to the requirements of the Americans with Disabilities Act (ADA). During the course of the trial Mother was found eligible for social security disability benefits due to her multiple sclerosis, diabetes, depression, anxiety, and obesity. In advance of the trial she contended that the State could not use her disability as a basis to terminate her parental rights because to do so would violate the ADA.
While it is true that the ADA requires public agencies such as DCF to make reasonable accommodations for disabled persons so that all may receive the benefits of the public programs and services, we find no support in the record for Mother's contention that DCF and the various agencies involved in the reintegration plan did not make reasonable accommodations for her.
Mother testified that her medical conditions do not affect her day-to-day living and did not keep her from accomplishing her case plan tasks. Various case workers testified about accommodations made due to Mother's health concerns, including (1) bringing the children to visit Mother when she was hospitalized; (2) creating activities Mother could do with the children that did not require her to get down on the floor; (3) having home visits when Mother was having trouble walking; and (4) providing Mother with information and assistance in obtaining social security disability income and transportation assistance.
By all indications, whenever Mother's health problems interfered with case plan activities, caseworkers accommodated those problems and did not count those problems against her when evaluating her progress.
Continuation of Hearing for a Bonding Assessment
Mother argues that the district court abused its discretion when it declined to continue the termination proceedings in order to conduct a bonding assessment to determine the impact that termination would have on D.E. Mother argues that without the evaluation, the district court did not have sufficient facts with which to adequately consider the nature and strength of the relationship between Mother and D.E when it determined that termination was in the best interests of D.E. In the absence of this evaluation, Mother asserts that the record does not support that termination was in the best interests of D.E.
Two days prior to the termination hearing, Mother moved the district court to continue the case, in part for an assessment of the bond between Mother and D.E. D.E.'s guardian ad litem contended that a bonding assessment would be of little benefit because the parties were well aware that D.E. had a bond with her parents and the district court was already adequately positioned to make a determination if it was in D.E's best interests to terminate that bond. The State also opposed the bonding assessment request. The district court denied the request for a continuance, noting that a bonding assessment, requested at the eleventh hour, was not necessary in order for the court to make its decision.
Mother concedes that there is no statutory requirement for a bonding assessment to determine how the termination of parental rights will impact the children. Thus, the district court's decision on this motion was discretionary and will not be disturbed by this court absent some abuse of that discretion. In re A.A., 38 Kan.App.2d at 1105.
There is no question that the termination of a parent-child relationship will have an impact on the child when mother and child have bonded. No assessment is needed to determine that. The district court was charged with considering whether termination was in D.E.'s best interests by giving primary consideration to D.E.'s physical, mental, and emotional health. See K.S.A.2013 Supp. 38–2269(g)(1). The parent-child bond is but one part of that consideration, albeit an important one. When the bond between Mother and D.E. was undisputed, a bonding assessment was unnecessary. The district court did not abuse its discretion by refusing to continue the termination hearing, thereby unnecessarily prolonging the proceedings when all parties acknowledged the loving bond between Mother and D.E.
Best Interests of the Children
Mother argues that the district court used the parental unfitness findings to support its finding that termination was in the best interests of the children rather than using child-focused factors such as emotional harm to the children if rights are terminated. She asserts that the court had to first find her unfit and then decide if termination was in the best interests of the children. She asserts that the district court erroneously combined these two findings.
If the district court makes a finding that a parent is unfit, it must then consider whether the termination of parental rights is in the best interests of the child, giving primary consideration to the physical, mental, and emotional health of the child. K.S.A.2013 Supp. 38–2269(g)(1). We review the district court's decision regarding the best interests of the child using the abuse of discretion standard. See In re K.R., 43 Kan.App.2d at 903.
We find no abuse of discretion here. Contrary to Mother's assertion, the district court did not combine its findings. The district court's written findings specifically set out the statutory bases for its conclusion that Mother was unfit. It then set out the reasons that the termination of Mother's parental rights was in the best interests of each child. We need not recount those facts yet again. It suffices to say that we find no error in the district court's rulings.
Affirmed.