Opinion
No. 108,540.
2013-07-12
In the Interest of Y.E.Z. (YOB: 2010), a Child under Eighteen (18) Years of Age.
Appeal from Cowley District Court; James T. Pringle, Judge. Lynnette A. Herrman, of Beall & Mitchell, L.L.C., of Wichita, for appellant natural parents. Kellie E. Hogan, of Kansas Legal Services, for appellee.
Appeal from Cowley District Court; James T. Pringle, Judge.
Lynnette A. Herrman, of Beall & Mitchell, L.L.C., of Wichita, for appellant natural parents. Kellie E. Hogan, of Kansas Legal Services, for appellee.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mother and father appeal from the trial court's judgment terminating their parental rights as to Y.E.Z., their minor daughter. On appeal, mother and father argue that the trial court incorrectly ruled that clear and convincing evidence supported the statutory requirements for terminating their parental rights. We disagree. Accordingly, we affirm.
On April 14, 2011, the State of Kansas filed a petition alleging that Y.E.Z. was a child in need of care (CINC). Specifically, the State's petition alleged that “[i]t is contrary to the child's welfare to remain in the home [because Y.E.Z.] has ongoing medical problems and the mother is unable to provide the necessary care for the minor child's health.” That same day, the trial court issued an ex parte order of protective custody. Under the order, the trial court found that remaining in the home or returning home would be contrary to the welfare of the child and that immediate placement was in the best interests of the child.
The order also noted that Y.E.Z. currently was hospitalized at Children's Mercy Hospital (Children's Mercy) in Kansas City, Missouri, where she was receiving treatment for her ongoing health problems. Apparently, Y.E.Z.'s medical issues required constant care and frequent appointments with a variety of doctors, specialists, and therapists. The following examples illustrate the severity of Y .E.Z.'s medical condition: she has a feeding tube and obtains most of her nutrition that way; she is prone to contract illnesses—such as colds, flu, and pneumonia—much easier than the average child because of the paralysis of her diaphragm; she requires the use of a suction machine when she aspirates vomit, chokes when attempting to drink, or to remove phlegm during periods of illness; she has to use a brace and splint; and she requires daily physical therapy.
On June 15, 2011, mother and father signed no-contest statements, i.e., statements that they did not “admit or deny the claims in the petition but [did not] contest the claims in the petition.” After mother and father signed the no-contest statements, the trial court issued a “combined journal entry and orders of adjudication and disposition.” The trial court concluded in its journal entry that “the evidence is clear and convincing that the child is without the care or control necessary for the child's physical, mental or emotional health.” The trial court also concluded that “[r]easonable efforts have been made and have failed to maintain the family and prevent the removal of the child from the child's home as follows: child has major medical problems which the mother due to cognitive issues is not able to properly address at the home.”
After several additional hearings, the State filed a motion for review and termination. The State's motion argued that the trial court should terminate the parental rights of mother and father because they were unfit to have custody of Y.E.Z. The trial court held an evidentiary hearing for the termination of parental rights motion on April 11, 2012. After the trial court heard the witnesses and reviewed the record, it stated the following:
“[T]he Court does find that by clear and convincing evidence that the parents are unfit by reason of conduct or condition which renders the parents unable to care properly for the child, and the condition and the conduct or condition is unlikely to change in the foreseeable future.
“The Court has considered all the factors contained in K.S.A. 38–2269, which is a non-exhaustive list of things the court may consider in deciding whether the evidence is proven by clear and convincing evidence that the parents are unfit; the Court further finds that termination of parental rights as requested in the petition is in the best interest of the child.”
The trial court's reasoning was explained in great detail in its memorandum decision, which was filed on July 10, 2012. Based on the trial court's decision, a finding of unfitness and order terminating the parents' parental rights was filed on July 24, 2012.
Is there clear and convincing evidence to support the trial court's termination of mother and father's parental rights?
Before a trial court can terminates a parent's parental rights, it must make three findings: (1) that there is clear and convincing evidence that the parent is unfit; (2) that the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future; and (3) that termination of parental rights is in the best interests of the child. K.S.A.2012 Supp. 38–2269(a), (g)(1). The statutory phrase “foreseeable future” must be measured in terms of “child time” instead of “adult time.” For instance, 1 year reflects a much longer portion of a minor's life than an adult's life. Consequently, efforts at rehabilitation or reintegration must proceed promptly to a successful conclusion. Cf. In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
When an appellate court reviews a trial court's termination of parental rights, it considers “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). Our Supreme Court has 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 cannot weigh conflicting evidence, pass on the credibility of witnesses, or otherwise redetermine questions of fact. 286 Kan. at 705. Said differently, any disputes in the evidence must be resolved to the State's benefit and against mother and father.
When the trial court makes a determination of unfitness, K.S.A.2012 Supp. 38–2269(b) and (c) provide it with several factors to consider. The list is not exclusive, meaning that the trial court is not limited to the factors listed in the statute. Moreover, the existence of any one of the listed factors may establish grounds for termination. K.S.A.2012 Supp. 38–2269(f). Here, the trial court found mother and father unfit under five of these statutory factors: Emotional illness, mental illness, mental deficiency or physical disability of the parent, of such duration or nature as to render the parent unable to care for the ongoing physical, mental, and emotional needs of the child (K.S.A.2012 Supp. 38–2269[b][1] ); physical, mental or emotional abuse or neglect or sexual abuse of a child (K.S.A.2012 Supp. 38–2269[b][4] ); failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family (K.S.A.2012 Supp. 38–2269[b][7] ); failure to maintain regular visitation, contact, or communication with the child or with the custodian of the child (K.S.A.2012 Supp. 38–2269[c][2] ); and failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home (K.S.A.2012 Supp. 38–2269[c] [3] ).
Measured against the applicable standard of review, the evidence supports the trial court's decision to terminate mother's and father's parental rights. The trial court found that mother's mental deficiency rendered her unable to care for the ongoing physical, mental, and emotional needs of Y.E.Z. As part of the reintegration plan, mother underwent a psychological exam at the Wichita State University Psychology Clinic. Dr. Helen Reiner evaluated mother and summarized mother's mental evaluation as follows:
“ ‘Mother is a 22 year old female, who meets criteria for mild mental retardation (317.0) as her scores on the WAIS—, as well as her previous attendance of special education classes, throughout her education, indicates that [mother] is functioning with mild mental retardation. Examination of [mother's] subtest scores and reports of her behavior indicate that [mother] is functioning at a lower level and is likely to have difficulty with a wide range of skills necessary for taking care of a child with significant medical complications. [Mother] is likely to have some difficulty caring for herself and may need assistance with managing money, medication, and feeding schedules. Though [mother] is likely to be able to care for herself with minor supervision it seems unlikely that she will be able to understand continually changing detailed directions regarding her daughter[’]s care needs. Additionally, [mother] continues to be unmotivated and resistant to the supervision of others in her daughter[']s care.' “
The nature of Y.E.Z.'s medical needs require constant monitoring and are constantly changing. Because of mother's mental deficiencies, she is unable to give Y.E.Z. the proper care that she needs. Consequently, the trial court properly concluded that mother's mental deficiencies rendered her unable to care for the ongoing physical, mental, and emotional needs of Y.E.Z.
Mother does not dispute that she has a mental deficiency that would make it difficult, if not impossible, to care for Y.E.Z. on her own. Instead, mother's primary appellate argument seems to be that the trial court could not use her mental deficiency as a factor for terminating her parental rights. To support her argument, mother cites to K.S.A.2012 Supp. 38–2201(c)(l) and (2). That statute reads 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 a determination that a child is a child in need of care, for the removal of custody of a child from the parent, or 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.”
Mother's argument is misplaced for two reasons. First, K.S.A.2012 Supp. 38–2201(c)(1) states that disability of a parent cannot constitute a basis for a CINC determination only when there is no causal relation between the disability and harm to the child. Here, there is a causal relationship between mother's mental deficiencies and the harm to Y.E.Z. Because of mother's mental deficiencies, she is unable to give Y.E.Z. the proper care that she needs. Y.E.Z.'s medical condition requires constant monitoring and care. Due to Y.E . Z.'s medical condition she cannot be fed orally but instead receives food through a feeding tube five times a day. Y.E.Z.'s feeding routine requires mathematical calculations concerning the amount of food and the frequency of feedings. Mother's mental deficiencies have prevented her from properly feeding Y.E.Z., which has been detrimental to Y.E.Z.'s health.
Second, mother's reliance on K.S.A.2012 Supp. 38–2201(c)(2) is misplaced because the record does not support her assertion. Mother argues that “the State failed to present any evidence to indicate that there were any efforts, let alone reasonable efforts, to comply with K.S.A. 38–2201(c)(2) and provide adaptive equipment or support services to the parents who by the State's contention suffer from disabilities of such a nature as to allow the court to terminate their parental rights solely based upon those disabilities.” The evidence indicates that “[o]ver the six or seven months from April 2011 until the permanency hearing, the foster parents, the home health nurse, and family preservation employees all worked with [mother] and to a lesser extent, [father] to teach them how to feed and properly take care of [Y.E.Z.'s] basic physical needs.”
Neither mother nor father, however, could learn how to care for Y .E.Z. It is readily apparent that the only accommodation that could help mother in properly taking care of Y.E.Z. would be to have support staff at her residence 24 hours a day, 7 days a week. Then, the support staff still would have to walk mother step-by-step through the child care process as it did during the reintegration period. Moreover, mother's mental deficiency argument totally ignores the other factors that the trial court considered when it terminated her parental rights. These factors will be addressed individually below. A. Physical, Mental, and Emotional Abuse or Neglect
The trial court found that there was evidence that Y.E.Z. had been admitted to Children's Mercy on several occasions for failure to thrive. The trial court further found that each time Y.E.Z. was in the hospital or in the custody of her foster parents, she was able to thrive, i.e., gain weight. In other words, there was evidence that when Y.E.Z. was with her mother, she did not thrive, but when she was at Children's Mercy or with her foster parents, she did thrive. According to doctors at Children's Mercy, there was no medical reason why Y.E.Z. was not thriving when with mother, and the only logical explanation was that mother was neglecting to feed her. This evidence supports the trial court's decision to terminate mother's parental rights. B. Failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family
The trial court's finding concerning the failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family also supports its decision to terminate mother's and father's parental rights. Over a period of 6 or 7 months, the foster parents, the home health nurse, and family preservation employees all worked with mother and father to teach them how to feed and properly care for Y.E.Z.'s physical needs. Unfortunately, neither mother nor father could do so. Moreover, neither parent's performance improved after a year. In fact, the evidence shows that they were unable to demonstrate that they had an understanding of what Y.E.Z.'s physical and medical needs were. They also failed to complete infant CPR and first aid training. The evidence supporting termination under this factor was clear and convincing.
Mother argues that more could have been done to assist her in completing her reintegration plan. But the test is not whether the social service agencies could theoretically have done more to aid mother in completing the reintegration tasks. Our court has noted the following: “[a]n agency is not required to exhaust any and all resources to rehabilitate a parent.” Proof of “a herculean effort to lead the parent through the responsibilities of the reintegration plan” is not required for a court to determine a parent unfit under K.S.A.2012 Supp. 38–2269(b)(7). In re J.R., No. 104,975, 2011 WL 2175953, at *5 (Kan.App.2011) (unpublished opinion). Because there was clear and convincing evidence that reasonable efforts failed to rehabilitate mother and father, the trial court did not err in terminating their parental rights. C. Failure to maintain regular visitation, contact, or communication with the child or with the custodian of the child
There also was evidence to terminate father's rights under the failure to maintain regular visitation, contact, or communication with the child or with the custodian of the child factor. For example, the evidence shows that father did not get involved much in Y.E.Z.'s life until she was about 18 months old, and then he only attended visits—including training sessions at the foster parent's home—sporadically. Moreover, father does not live with mother, and he views his role in the family as a breadwinner and not as a caregiver. Father does not have a driver's license and does not speak or read English. When social worker Nora Pate was questioned concerning the parents' progress towards reintegration, she stated the following about father:
“ ‘For [father] he also has a better understanding of her medical concerns. I don't believe he understands her feeding schedule or medication schedule. And at the last visit that he was able to attend during a week day, I spoke with him and a translator at that visitation, and his expectation is still that he will be the one that works, and [mother] will be the caregiver, the primary caregiver in the home. If he is not there, it will be left up to her.’ “
Father's failure to maintain regular visitation, contact, or communication with the child or with the custodian of the child further supports the trial court's decision.
D. Failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home
Under the last factor relied on by the trial court, mother and father received over a year of assistance and training from several individuals so that they could learn how to take care of Y.E.Z. Neither parent, however, was able—or willing—to perform the necessary functions to take care of Y.E.Z. Thus, neither parent was successful in completing the reintegration tasks. Once again, this evidence supports the trial court's decision. Under all of the factors described earlier, the trial court concluded that “it is further clear and convincing that the conduct of the parents is unlikely to change in the foreseeable future.” Based on these findings, the trial court then concluded that the termination of mother's and father's parental rights was in the best interests of Y .E.Z.
We determine that the trial court's unfitness findings are supported by clear and convincing evidence. Moreover, we determine that a reasonable person could agree with the trial court in finding Y.E.Z. was best served by the termination of her relationship with mother and father.
Affirmed.