Opinion
111,731.
11-21-2014
In the Interests of A.F., A.G., and L.G., Children Under the Age of 18 Years.
Amy R. Mitchell, of Olathe, for appellant natural mother. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kathryn Barker, guardian ad litem, for appellee.
Amy R. Mitchell, of Olathe, for appellant natural mother.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kathryn Barker, guardian ad litem, for appellee.
Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.
MEMORANDUM OPINION
POWELL, J.
K.G. (Mother) appeals termination of her parental rights to her three minor children, A.G., A.F., and L.G. The natural father of L.G ., S.T., also appeals the termination of his parental rights, which we address in a separate opinion issued today. See In re L.K.G. (No. 111,710, this day decided). B.F., the natural father of A.G. and A.F, does not appeal. Mother claims there is insufficient evidence to support the district court's findings of unfitness and the district court abused its discretion when it found that the termination of her parental rights was in the children's best interests. We disagree and affirm.
Factual and Procedural History
History of Children in Custody
In 2004, Mother and B.F. were the natural parents of three other minor children who are not parties to this appeal. Those children were adjudicated children in need of care, and Mother relinquished her rights to all three children in 2005. B.F. relinquished his rights to two of the children, and the court terminated his rights to the third child in January 2006. All three children were subsequently adopted.
Following the relinquishment of their parental rights, Mother and B.F. continued to have children together; A.G. was born in March 2007. In September 2008, Mother and S.T. became involved in a brief romantic relationship, which resulted in the birth of L.G. in July 2009. Sometime after, Mother and B.F. got back together and A.F. was born in August 2011.
In December 2009, B.F.'s mother passed away, and B.F. and Mother drove to Arkansas to deliver some of his mother's belongings to his sister. While in Arkansas, B.F. was pulled over; he got out of the vehicle and ran from the police, apparently because he knew he had a warrant issued for a parole violation. B.F. was arrested and sent back to prison; Mother was arrested for public intoxication. A.G. and L.G. were in the vehicle at the time of the stop and were taken into state custody in Arkansas. A.G. tested positive for THC; B.F. was possibly smoking marijuana in the car while driving. Mother, B.F., and S.T. were all given the opportunity to reintegrate with the children. While Mother moved to Arkansas and successfully completed the reintegration plan, B.F. was unable to reintegrate with A.G. due to his incarceration. S.T. also failed to reintegrate as he, too, was incarcerated at the end of the case plan in that matter.
Current Case Involving A.G. and A.F.
In October 2012, DCF social work specialist Betsy Wilson investigated allegations that A.G. and A.F. were without proper parental control. Wilson first contacted B.F. at the Olathe Detention Center because B.F. had been arrested and incarcerated due to involvement in an illegal drug transaction. A.F. was with him at the time of the transaction. Mother was also incarcerated at this time for an older case. Due to the incarceration of both parents, there was no known caregiver for A.G. and A.F. A.F. was in police custody, and A.G. was with his paternal grandfather when the children were placed in DCF care. Wilson referred A.G. and A.F. for the filing of a child in need of care petition. A temporary custody hearing was held on October 16, 2012; both children were placed into DCF custody and referred to the out-of-home foster care contractor, KVC Behavioral Healthcare (KVC).
Case plan tasks were created to assist Mother and B.F. in addressing the needs of the children and the concerns in the petition. Case manager Megan Moser testified that the case plan tasks were created to reintegrate the children back into the home. On December 19, 2012, the district court found both A.G. and A.F. to be children in need of care and ordered 4–month reintegration plans for Mother and B.F.
Current Case Involving L. G.
At the time the case plans were ordered for A.G. and A.F., L.G. was not in State custody, nor was the State even aware of his existence. At one of the appointments involving A.G.'s and A.F.'s case, Mother brought L.G. along. The case manager testified she asked, “ ‘This is their cousin; right?’ [Mother] said, ‘Yes.’ “ The case manger had concerns that L.G. may not be a cousin and began to investigate. The case manager subsequently learned L.G. was Mother's child; the State also had not been aware of the 2010 Arkansas removal incident.
In March 2013, L.G. was placed in DCF custody due to a physical altercation between Mother and S.T. Deputy Brian Davis testified he was dispatched on a child abduction case, and Mother reported that she and S.T. got into an argument; S.T. became aggressive, grabbed Mother by her throat, and choked her. There were lacerations on Mother's face below her eye where S.T, bit her. Mother reported, “[S.T.] bit her so hard it felt like it hit the bone.” L.G. was present when this altercation occurred. S.T. had taken L.G. and was subsequently arrested. A child in need of care petition for L.G. was filed, and DCF obtained an ex parte order for protective custody. DCF had information L.G. was living with a relative. However, when the case worker went to the home of the relative, she was unable to locate L.G. The police were contacted, and, after a difficult search, L.G. was finally located and taken into custody. DCF recommended out-of-home placement for L.G.
The cases involving the three children were combined, and when L.G. was brought into custody, Mother's case plan tasks were amended.
Mother's Reintegration Plan
As part of the reintegration plan, Mother was required to obtain and maintain stable housing, to notify the case manager of any changes of residence within 72 hours, and to provide proof of a reliable transportation plan. However, Mother continued to have negative encounters with law enforcement; Moser believed Mother had been in jail about three times since she began working on this case. When Mother was released from jail in December 2012, she stayed at Dove House, a shelter for battered women. Following her stay at Dove House, Mother did not have a stable residence, and she failed to notify the case manger of changes to her residence. Regarding the transportation plan, Mother did provide signatures of people who agreed to transport her. In the beginning, Mother was apparently able to obtain transportation, but, as time passed, there was inconsistency as Mother was arriving to appointments late. Mother failed to show consistency with her scheduled visits, showing up to visits 15 to 50 minutes late, or completely missing visits. Moser never felt comfortable extending Mother's visitation.
Mother was also asked to provide random urinalysis (UA) samples. There was some questionable timing surrounding Mother's submittal of UAs. On some occasions, Moser would ask Mother to submit a UA that day, and Mother would refuse. At other times, Mother said she could not submit a UA or she failed to come in until the following day. Moser arranged for KVC to pay for a hair follicle test, but Mother never completed this request. When Moser discussed police reports that indicated Mother's drug and alcohol usage, Mother would deny using and supply a different reason as to why the reports indicated otherwise. During Mother's incarceration, she attended AA and NA meetings. Moser testified, “[I]t was interesting to me that she refused to submit the hair follicle test and said she hasn't had an issue with drugs, yet she went to AA meetings in jail.”
Mother did provide proof of her completion of a level 1 mental health evaluation, but she never provided proof of following the recommendations. She failed to see an individual therapist on a consistent basis in order to address mental health concerns. Mother provided proof she attended a minimum of three domestic violence classes, but there were still concerns regarding Mother's understanding of the significance of this task. Moser testified,
“[T]he impression I got when I spoke with her is that she denied the significance of domestic violence. That concerns me how to—in order for someone to change, I believe you have to realize where you are, and so I could say there is concerns [sic ] of her seeing the significance of domestic violence and what that looks like in the future.”
There were also concerns regarding the stability of Mother's income and her ability to meet the family budget. Her employment appeared to be sporadic at best. At one point, she worked approximately 6 days a month for her uncle's tree service; Mother was briefly employed by Sonic, worked at Casey's about a month prior to trial, and worked a temporary position with American Eagle about a week prior to trial.
On April 29, 2013, the district court refused to formally extend the reintegration plans.
Condition of the Children
A.G. was 4 years old and A.F. was 1 year old when they were placed into DCF custody. DCF had concerns regarding their condition as the children were dirty, although the grandfather said they had been playing in the mud. A.F. had a double ear infection, which required tubes, and it was determined that A.F. was lactose intolerant. The majority of A.G.'s teeth were decayed. According to A.G.'s foster father, “[A.G.] had two caps, one extraction, and then cavities had to be filled in all teeth minus the four front bottom teeth.” A.G. also had some difficulties breathing due to asthma, which the foster parents attempted to resolve with breathing treatments. A.G. had some behavioral problems, and his speech appeared to be delayed. A.G. had a “pretty bad habit of hitting himself.” This habit subsided after routines set in; A.G.'s speech turned around after his preschool worked with him. When L.G. went into care, he had delayed speech and he appeared to be more aggressive than most 3–year–old children. Both issues improved when L.G. moved in with his foster parents.
DCF also investigated an allegation involving the physical abuse of A.G. during a time A.G. was living with his natural parents. A special investigator with DCF met with A.G. and A.F. at the children's daycare. A.G. said he was wearing clothes when his dad spanked him on his backside. A.G. also said Mother slapped him. When asked about cigarettes, A.G. knew what they were because he said his dad smoked them and he was allowed to smoke them too. The special investigator testified,
“I asked him how does that happen or how is he allowed to. He then held up his hand as if to hold an imaginary cigarette and hold it to his mouth and acted like he would inhale. I asked him if any smoke went into his mouth, and he said yes. I asked him why would this—why was he allowed to do this. He told me that he was told he was a big boy and that he could do that.”
A.G. also reported that he had been locked in his bedroom and had been unable to get himself out. A.G. said he had been flicked in the head, but it was not clear that this was a form of punishment; it may have been a game. During the interview, A.F. was more interested in playing with toys than answering any questions; accordingly, the special investigator chose not to conduct an interview with him but observed him instead. The special investigator testified that through his observations, A.F. appeared to be a “healthy, normal, little young man” and noted both children were developmentally on track.
There were issues involving permanency and stability for the children. At the age of 5, A.G. had spent over 2 years of his life in State care. Moreover, there was uncertainty as to where A.G. lived during the rest of the time. A.F., at the age of 2, had spent approximately 13 months in custody. L.G., at the age of 4, had either been in custody or had not resided with his parents for 3 years or more.
After hearing testimony and reviewing notes, transcripts, and cases where the court took judicial notice, the district court found by clear and convincing evidence that Mother was unfit to properly care for A.G., A.F., and L.G. The district court also found that the conditions of Mother's unfitness were unlikely to change in the immediate or foreseeable future and concluded it was in the best interests of all three children to terminate Mother's parental rights.
Mother timely appeals.
Did the District Court Err by Finding Mother Was Unfit and by Terminating her Parental Rights?
Mother argues on appeal the district court's finding of unfitness was not supported by clear and convincing evidence and that the court erred by terminating her parental rights.
If a child is adjudicated a child in need of care, 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). K.S.A.2013 Supp. 38–2201 et seq. , the Revised Kansas Code for Care of Children, lists a number of nonexclusive factors the district court must consider in determining a parent's unfitness. See K.S.A.2013 Supp. 38–2269(b) and (c). Any one of the factors may, but does not necessarily, establish grounds for terminating a parent's rights. See K.S.A.2013 Supp. 38–2269(f). The district court is not limited only to the statutory factors in making a determination of unfitness. See K.S.A.2013 Supp. 38–2269(b).
When reviewing a district court's findings on this point, our standard of review is clear: The district court's findings must be supported by clear and convincing evidence. K.S.A.2013 Supp. 38–2269(a). We determine whether such evidence could have convinced a rational factfinder such facts were highly probable by clear and convincing evidence when viewed in the light most favorable to the State. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In making this determination, we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
In the present case, the district court found Mother unfit based on the following statutory factors:
• KVC made reasonable and appropriate efforts that failed to assist Mother in reintegrating with her children, satisfying K.S.A.2013 Supp. 38–2269(b)(7). These efforts included transportation of the children to visits; meeting the children's needs, such as painful dental procedures; offering to pay for Mother's hair follicle test; and providing general case management on a regular basis.
• There was a lack of effort on Mother's part to adjust her circumstances, conduct, and conditions in order to meet the needs of her children, satisfying K.S.A.2013 Supp. 38–2269(b)(8).
• Mother failed to maintain regular contact and communication with the children and KVC at various points in time, satisfying K.S.A.2013 Supp. 38–2269(c)(2).
• Mother failed to complete the tasks necessary to reintegrate with her children, satisfying K.S.A.2013 Supp. 38–2269(c)(3).
First, we must determine whether the district court's findings of unfitness were supported by clear and convincing evidence. Mother argues the evidence presented was not sufficient to convince a rational factfinder that she was unfit, meaning her parental rights should not be terminated. She contends that throughout the case she demonstrated significant progress in the tasks given to her and was becoming more stable and responsible.
As previously analyzed, the district court heard evidence regarding Mother's history with DCF, which involved her relinquishment of parental rights of three other children and her history involving A.G. and L.G. in the Arkansas matter. Mother failed to show up to meetings on time, and she missed several visits with her children. The children were exposed to physical abuse and domestic violence. Mother failed to obtain stable housing. She only provided a lease to the court a few days before the district court made its decision. Her employment history was not consistent, and she was unable to support her family. Mother was incarcerated while trying to reintegrate with her children, and she refused to complete a hair follicle test.
Based on the aforementioned facts, we conclude there was clear and convincing evidence to support the district court's determination that Mother was unfit by reason of conduct or condition which rendered her unfit to care properly for her children.
Our next step is to determine whether clear and convincing evidence supported the district court's determination that Mother's behavior was unlikely to change in the foreseeable future. See K.S.A.2013 Supp. 38–2269(a). 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 780, 790, 204 P.3d 1182 (2009). We have considered periods of time as short as 7 months to be the foreseeable future from a child's perspective. 41 Kan.App.2d at 790. A court may predict a parent's future unfitness based on his or her past history. In re Price, 1 Kan.App.2d 477, 483, 644 P.2d 467 (1982).
Mother argues she demonstrated her ability to change when she successfully completed the reintegration plan in Arkansas and the district court ignored the progress she made in this case. She contends there was not clear and convincing evidence to support the court's conclusion that she was unfit and was not likely to change in the foreseeable future.
The district court heard testimony regarding the significant amount of time all three children had spent in state custody. Mother had considerable involvement with DCF. She was issued a formal reintegration plan, but she failed to complete several necessary tasks. The district court may predict Mother's future unfitness based on her history. There was clear and convincing evidence to support the district court's determination that Mother's behavior was unlikely to change in the foreseeable future. Our last consideration is whether the district court correctly determined that terminating Mother's parental rights was in the children's best interests. K.S.A.2013 Supp. 38–2269(g)(l) provides that even after a finding of unfitness, the district court must determine whether the termination of parental rights is in the best interests 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 this determination without finding an abuse of discretion. In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied 291 Kan. 911 (2010). An abuse of discretion occurs when no reasonable person would agree with the district court, or when the court bases its decision on an error of fact or an error of law. See Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). In determining whether the district court has made a factual error, we review any additional factual findings made in the best-interests determination to see that substantial evidence supports them (recognizing that the preponderance-of-the-evidence standard applies in the district court). In re R.S., 50 Kan App.2d ––––, ––––, ––– P.3d –––– (2014) (No. 111,027 filed October 24, 2014).
On appeal, Mother incorrectly contends the district court gave no consideration to the physical, mental, or emotional needs of the children. The district court addressed the children's needs were not being met including some rather difficult and probably painful dental procedures to A.G. whose teeth were in complete disrepair. Additionally, the district court found the children deserved permanency, which could not be provided by Mother. Mother fails to support her argument that the court abused its discretion by failing to consider an alternative to termination because there was no credible evidence to support the termination of Mother's parental rights. Therefore, the district court could fairly conclude it was in the children's best interests to terminate Mother's parental rights.
Ultimately, the evidence provided at the termination hearing demonstrated that Mother could not adequately provide for the needs of her children in the future. As such, the district court's decision to find Mother unfit was supported by clear and convincing evidence, and the court did not abuse its discretion by terminating her parental rights.
Affirmed.