Opinion
No. 106,730.
2012-05-11
In the Interest of M.L., Born in 2010, Child under Eighteen (18) Years of Age.
Appeal from Sedgwick District Court; Harold E. Flaigle, Judge. Roger Batt, of Wichita, for appellant natural father. Larry S. Vernon, Kansas Department of Social and Rehabilitation Services, for appellee.
Appeal from Sedgwick District Court; Harold E. Flaigle, Judge.
Roger Batt, of Wichita, for appellant natural father. Larry S. Vernon, Kansas Department of Social and Rehabilitation Services, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
M.S. (Father), the natural father of M.L., appeals the termination of his parental rights. On appeal, Father maintains the evidence was insufficient to support the district court's decision. For the reasons stated below, we affirm.
Facts
In June 2010, the State filed a petition seeking to have M.L. declared a child in need of care (CINC). The petition was filed soon after M.L's birth. A.L. (Mother) and J.L. (Legal Father) have a substantial history of domestic violence, and three previous children were removed from their care. M.S. alleged he was the father of M.L. because he and Mother were together for a few months after Mother left her husband.
The district court ordered paternity testing. Although the record on appeal does not include the results of this testing, the parties did not dispute that M.S. is M.L.'s biological father. Father did not contest the facts alleged in the CINC petition, and the district court found M.L. to be a child in need of care as to Father. Although Mother did not stipulate that M.L. was in need of care, the district court determined M.L. was a child in need of care as to Mother after considering evidence and witnesses' testimony.
At a review hearing in January 2011, Mother indicated to the district court that she wanted to relinquish her parental rights to M.L. Father was following the district court's orders, and he sought reintegration without Mother. A reintegration plan was developed for Father, but he failed to comply with the plan almost immediately after it was implemented. In April 2011, the district court terminated Mother's parental rights. At the same time, the plan changed to adoption. In May 2011, a motion was filed seeking termination of Father's parental rights. The district court held an extensive hearing on the matter. After considering all the evidence and hearing from several witnesses, the court found by clear and convincing evidence that Father was unfit, his unfitness was unlikely to change in the foreseeable future, and it was in M.L.'s best interest for parental rights to be terminated.
Standard of Review
The termination of parental rights is controlled by K.S.A.2010 Supp. 38–2269(a), which requires the district court to find 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.” In addition to these two required findings, if the court then makes a finding of unfitness, “the court shall consider whether termination of parental rights as requested in the petition or motion is in the best interests of the child.” K.S.A.2010 Supp. 38–2269(g)(1).
When this court reviews a 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's rights should be terminated].” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In In re B.D.-Y., the court explained that “clear and convincing evidence” requires the factfinder to believe “that the truth of the facts asserted is highly probable.” 286 Kan. at 697.
The appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 705. In addition, the court construes the phrase “foreseeable future” in terms of “child time” as opposed to “adult time.” See In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
Analysis
Father argues on appeal that the district court's finding of unfitness was not supported by clear and convincing evidence. Father contends he made significant efforts to alter his circumstances as demonstrated by his consistent participation in treatment through the Veterans Administration (VA) and the fact his mental health issues had improved. Father contends there is no evidence his mental health adversely affects his ability to parent and that he has complied with all the district court's orders. According to Father, Jenny Amado, a permanency support worker for Youthville who supervised his visits with M.L., testified she had no safety concerns regarding his care of M.L.
In finding Father unfit, the district court relied on the following three factors under K.S.A.2010 Supp. 38–2269:(1) Father's mental illness of such duration and nature that he is unable to care for the ongoing physical, mental, and emotional needs of M.L. (K.S.A.2010 Supp. 38–2269[b][1] ); (2) The failure of appropriate agencies to rehabilitate the family despite reasonable efforts (K.S.A.2010 Supp. 38–2269[b][7] ); and (3) Father's lack of effort to adjust his circumstances, conduct, or condition to meet the needs of M.L. (K.S.A.2010 Supp. 38–2269[b][8] ). In addition, the district court determined that M.L's physical, mental, and emotional health would be best served by terminating parental rights. See K.S.A. 38–2269(g)(1).
Father has a diagnosis of and receives treatment for anxiety and panic disorders, possible post traumatic stress disorder, depression, and alcohol dependency. Dr. Susan Brewer, a psychiatrist at the VA, provides medication management for Father's mental condition. Dr. Brewer testified Father has made progress over the last year, and his alcoholism is in early remission. Dr. Brewer believes an anxiety disorder alone should not affect an individual's ability to parent. Despite this positive assessment, Dr. Brewer noted that, from what Youthville was reporting, Father did not appear to comprehend the importance of completing all of his visitations with M.L., and he may be over estimating his ability to parent, which was tied to the doctor's belief that Father had a difficult time understanding his limitations.
Melissa Gronau, a clinical social worker with the VA, met with Father for individual therapy. According to Gronau, VA regulations prohibit her-from giving an opinion on how Father's mental health affects his parenting. Regarding Father's mental health, Gronau testified his prognosis was fair, and it would take another 6 to 12 months to stabilize his mental health. She further testified that Father's anxiety disorder has been triggered by this case, and he reported experiencing a lot of anxiety symptoms when he was with M.L. Gronau noted that, on occasion, Father appeared to be out of touch with reality, mildly delusional, and mildly paranoid.
Amado testified Father did well early in the reintegration plan when M.L. was a baby. But then M.L. slept most of the time, and the visits consisted of holding M.L. and changing her diaper. As M.L. grew a little older, Amado testified Father needed a lot of coaching and prompting during his weekly visits.
Lisa Sanford, the family educator at Early Head Start, also found Father needed a lot of prompting and coaching. Sanford testified she had concerns about Father's parenting because he sometimes brought clothing and diapers for M.L. that did not fit or were not clean. She also was concerned about Father's mental health and level of reality in view of some of his “bizarre” comments.
There were concerns about Father's anxiety disorder interfering with his ability to parent M.L. In addition to having low muscle tone in her trunk, M.L. was in the 1 percentile for weight; she needed to gain weight. Erin Reffner, a Youthville case coordinator, testified Father had difficulty feeding M.L., and he would become frantic trying to find something M.L. would eat. When M.L. cried, it seemed to “ramp up” Father's anxiety, which resulted in him repeatedly picking M.L. up and setting her down. Reffner also believed Father exhibited some paranoia during a visit when he continually looked out his blinds as people walked past his home. Sanford believed that Father's anxiety caused him to have trouble parenting; he had difficulty being consistent with M.L. and understanding her needs.
Starting in January 2011, there was a noticeable change in Father's compliance with the reintegration plan. He began missing visits. When Youthville workers went to check on Father, they found cleanliness issues with his home, for example, cigarette butts, ashes, and food on the floor, and Father had hygiene issues. Father claimed his medications were making him oversleep. But Dr. Brewer testified Father's medication was not normally sedating, and she was unaware of any problems with his medication at the time. Father also indicated late hours working at a bar were to blame. But Father also referred to treatment issues occurring during this time period and admitted his mental health issues caused a decline in January through March 2011. Father further reported that one indicator of his anxiety was a decline in his hygiene.
Both Reffner and Amado believed Father was unable to provide for M.L.'s needs and ensure her safety. This was exemplified by what occurred during a 3–day trial of extended day-long visits in Father's home. Father was monitored during these visits, but he was expected to care for M.L. without assistance and prompting. The first day, Father fell asleep for 25 minutes, leaving M.L. unattended. M.L. crawled around on the floor while Amado followed. M.L. crawled into the kitchen where Amado observed the oven was very warm to the touch, and an open tool box containing sharp tools was on the floor. Before M.L. could touch anything, Amado directed her out of the kitchen. In the living room, M.L. picked up a twig and put it in her mouth. Crawling back to a bedroom, M.L. picked up a leaf and put it in her mouth. Amado believed these objects were choking hazards and removed them from M.L.'s mouth. In the bedroom, where Father was sound asleep, M.L. started loudly banging on the door. Father never woke up. Amado eventually woke Father up. During the 3–day visit, Father was unable to get M.L. to eat any significant amount of food or get her to take a nap for any appropriate amount of time.
Father contends he was not informed of the 3–day visit until shortly before they occurred, and it was unreasonable to expect him to assume exclusive care of his child when, for the previous year, he had at most 1 1/2 hours of parenting time per week and minimal training geared toward caring for M.L. But Amado testified Father insisted he could parent M.L., that an hour a day was not enough to show it, and he could take care of M.L. if they would allow her to come home. Amado believed Father had a year-long preparation for the 3–day visit; he should have been prepared. Amado noted Father completed a parenting class, and he was enrolled in ongoing parenting and socialization classes with M.L. at Early Head Start. Sanford, who had provided Father with coaching and education through Early Head Start, also expected Father to have demonstrated better parenting skills during these visits. Father admitted the 3–day visit with M.L. was more realistic than his past 1 1/2–hour visits. He also admitted that during those 3 days, he was not capable of parenting M.L.
The district court concluded that Father should not have needed additional training before showing he had the parenting skills necessary to care for M.L., and the 3–day visit demonstrated Father is unable to parent his child. The district court found it was unlikely Father would be able to parent in any reasonable time frame, if at all. The court was satisfied that by the standard of clear and convincing evidence, Father was unfit as a parent and likely to remain so for the foreseeable future. The court also found it was in the best interest of M.L. to terminate Father's parental rights.
Upon review of all the evidence, viewed in the light most favorable to the State, we are convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that Father's parental rights should be terminated.
Affirmed.