Opinion
No. 108,473.
2013-03-1
In the Interest of A.C., A Child Under Eighteen (18) Years of Age.
Appeal from Cowley District Court; Nicholas M. St. Peter, Judge. Chad D. Giles, S.C., of Soule & Giles, LLP, of Arkansas City, for appellant mother. Kellie E. Hogan, of Kansas Legal Services, for appellee.
Appeal from Cowley District Court; Nicholas M. St. Peter, Judge.
Chad D. Giles, S.C., of Soule & Giles, LLP, of Arkansas City, for appellant mother. Kellie E. Hogan, of Kansas Legal Services, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, J.J.
MEMORANDUM OPINION
PER CURIAM.
G.T.V. (Mother) appeals the termination of her parental rights to her daughter, A.C. Parental rights may be terminated only in circumstances set out by statute and only when clear and convincing evidence supports termination. Mother claims on appeal that the evidence in this case wasn't sufficient for the district court to terminate her parental rights and that termination wasn't in A.C.'s best interest because other alternatives weren't pursued.
But termination is authorized when a parent's conduct 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.2011 Supp. 38–2269(a). At the time of the termination hearing, A.C. had been in an out-of-home placement for more than a year and Mother had failed to meet any of several significant steps set out in a plan to reintegrate her with A.C. The district court did not err in finding, based on the evidence, that Mother was unable to care for her daughter. Nor did the district court err by failing to consider the alternative of a temporary or permanent guardianship—as Mother asserts on appeal—because she did not suggest that alternative to the district court and that court properly considered the alternatives that were presented to it.
Factual and Procedural Background
In February 2011, the State filed a petition to have A.C, born in 2006, declared a child in need of care. At the time, A.C. was living with her maternal grandparents. She had been living there since September 2008 while Mother was incarcerated for a felony drug crime in Ohio. Mother explained the conviction to have been for “permitting drug use.”
Following her release in December 2009, Mother moved back to Kansas and lived on her father's property for a time before moving to Wichita in order to be closer to where she worked. While Mother was working toward getting her own place to live, A.C. continued living with her grandparents, and Mother took care of A.C. on the weekends. Mother admitted that she knew the grandparents' home was sometimes dirty, but she felt that A.C. was safe, cared for, and loved.
The State's child-in-need-of-care petition was based on reports that the grandparents' home was unclean, that A.C. and another school-aged child were consistently falling asleep during the day, and that A.C. was tired, hungry, thirsty, and dirty at school. These reports led to home visits by the Kansas Department of Social and Rehabilitation Services (SRS). After the third visit, the family was told to clean the home but the children were not removed. A follow-up visit a week later revealed the home to be unsanitary, and A.C. and the other children were removed.
At the temporary-custody hearing following A.C.'s removal, the district court found that immediate placement with SRS was in A.C.'s best interest due to health and safety hazards at the home. A month later, Mother stipulated to the facts in the petition, and the district court formally adjudicated that A.C. was a child in need of care. The court also concluded that it was in A.C.'s best interest to place her in SRS custody.
More than a year later, on April 4, 2012, the State filed a motion for review and termination asking the court to find Mother an unfit parent and to terminate her rights with regard to A.C. A termination hearing was held on June 5, 2012. The factual summary that follows generally tracks the testimony presented there.
In February 2011, social worker Nora Pate with TFI Family Services, Inc., was assigned to A.C.'s case. TFI is contractor that provides case-management services to the State for children in the foster system, like A.C, as well as reintegration services. Pate assisted in the development of a reintegration plan that was intended to reunite A.C. with her Mother. The tasks laid out in the plan were for Mother to maintain her own home, find employment, submit to random urinalyses (UA's), and obtain a GED. The overall goal of the plan was to ensure that Mother could provide stability for A.C.
Mother's visitation moved quickly from supervised meetings to weekend visits from Friday to Sunday. Initially, Pate was confident that once Mother obtained employment, A.C. would be able to go home with her. But this changed when Mother tested positive for methamphetamine in July 2011. At that point, Mother was referred for a drug-and-alcohol evaluation. In August 2011, Mother again tested positive for methamphetamine.
Mother completed the drug-and-alcohol evaluation in September 2011, and she was to follow any resulting recommendations as part of her reintegration plan. The evaluation recommended that Mother receive outpatient treatment, to consist of attending one-on-one meetings with a drug-and-alcohol counselor as well as group sessions. Mother testified that she was discharged from those services prior to completion for failure to attend her sessions. In January 2012, she was asked to submit another UA, but she failed to do so, citing issues with transportation to the TFI office. Mother did complete a hair-follicle test in April 2012, and that test came back negative for drug use.
Following the first failed UA, Mother's visitations with A.C. moved back to the TFI office, approximately 45 minutes away from Wichita. From the time the visits moved, Pate testified that Mother missed at least 11 scheduled visits: August 22, 2011; September 19, 2011; October 17, 24, and 28, 2011; November 28, 2011; December 5, 2011; January 3, 23, and 30, 2012; and February 13, 2012. Pate admitted that many of these missed visits were attributed to transportation issues. Mother was told she could receive gas vouchers if that was an issue, and she did receive vouchers four times between February and May of 2011. But Mother indicated that she stopped requesting the vouchers because she felt TFI employees looked down on her, so she didn't want to ask questions of them.
At the onset of the case, as Pate testified, Mother did not have her own place and was instead living with friends while she worked to obtain a home. Mother testified that she eventually moved into an apartment of her own, which she maintained for a time, but she moved because she did not feel it was a safe place for A.C. to live due to multiple break-ins. Mother then moved to a new apartment in November 2011. She maintained that address until early spring when she moved in with her boyfriend, who was the landlord. At the time of the hearing, Mother reported that she and her boyfriend had been together since February 2012 (5 months). Mother's boyfriend, who also testified, reported they had been together for about 6 months. But Pate reported that she had spoken with Mother 2 weeks before the hearing, and at that time Mother told her they were not yet in a relationship. Mother's boyfriend was asked to complete a background check since Mother was living with him, and Pate reported that nothing of concern came up.
Mother had various jobs and means of income throughout the history of the case. At the beginning of the case, Mother was unemployed and reported to Pate that her only source of income was money she received from her mother. She then worked briefly at a Sonic before getting fired. Mother told Pate she had been fired for horsing around, but Pate testified that someone with Sonic told her that Mother had been fired for sexual harassment. Mother next worked at Copenhagen LLC, but testified she quit after her employer started asking for sexual favors. Pate testified that the employer reported that Mother stopped showing up after the first week. Mother also worked as an exotic dancer at various clubs. Mother admitted that she could not obtain a license required for exotic dancers because of her felony record. Pate expressed concerns about Mother's work as an exotic dancer because Mother's income was based solely on tips and—since she had no license—she could lose her job at any time. At the time of the hearing, Mother was still working as an exotic dancer, though she said she also was attempting to find work through a temp agency.
At the end of the termination hearing, Mother's attorney asked that the judge wait an additional 3 to 6 months before ruling on the matter in order to give Mother more time to complete the reintegration plan. Pate testified that she did not believe giving Mother more time was in A.C.'s best interest. A.C.'s guardian ad litem testified that he believed no more than 2 months additional time to complete the plan to be in A.C.'s best interest. The court took the case under advisement.
About 2 weeks later, the district court announced its finding of Mother's unfitness. The court found by clear and convincing evidence that the State had shown Mother to be an unfit parent by reason of conduct or condition that rendered her unable to care properly for A.C. and that was unlikely to change in the foreseeable future. Specifically, the court found Mother to be unfit because she consistently did not make herself available to meet A.C.'s physical and emotional needs; she failed to adjust her circumstances, conduct, or conditions to meet A.C.'s needs; she failed to carry out the court-approved reintegration plan; and she failed to pay a reasonable amount of money towards substitute physical care and maintenance. The court then found that it would not be in A.C.'s best interest to give Mother additional time to complete the reintegration plan. The court based this conclusion on the length of time A.C. had been out of her Mother's custody, the lack of progress Mother had made up to that point, and the amount of time it likely would have taken for Mother to demonstrate stability to the court. The court found that it would be in A.C.'s best interest to terminate Mother's parental rights, and it did so. Mother has appealed that decision to this court.
Analysis
The District Court's Unfitness Finding Was Supported by Clear and Convincing Evidence.
Under the Revised Kansas Code for Care of Children, parental rights may be terminated when a child has been adjudicated to be a child in need of care and the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition that renders the parent unable to care properly for the child and the conduct or condition is unlikely to change in the foreseeable future. K.S.A.2011 Supp. 38–2269(a). The court may look to a variety of factors listed in K.S.A.2011 Supp. 38–2269(b) and (c), and, pursuant to K.S.A.2011 Supp. 38–2269(f), finding any one of the factors may be sufficient to establish grounds for termination based on unfitness. (The court also must find that termination is in the child's best interest, which we will review later in this opinion.)
In order for evidence to be clear and convincing, the evidence must be sufficient to establish “that the truth of the facts asserted is highly probable.” In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3, 187 P.3d 594 (2008). When reviewing termination of parental rights, the appellate court must determine “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 the determination to be highly probable,” ( i.e., established by clear and convincing evidence that the parent's rights should be terminated). B.D.-Y., 286 Kan. 686, Syl. ¶ 4. We look at the evidence in the light most favorable to the State because the district court found in its favor, and the factual findings must be made by the district court, which hears the evidence directly, not the appellate court. See In re A.L.C., No. 107,388, 2012 WL 3172538, at *3 (Kan.App.2012) (unpublished opinion), rev. denied 295 Kan. –––– (October 11, 2012).
Mother does not challenge the initial finding that A.C. was a child in need of care; Mother challenges the finding of parental unfitness that was based on physical, mental, or emotional neglect (K.S.A.2011 Supp. 38–2269[b][4] ); the failure of reasonable efforts made to rehabilitate Mother (K.S.A.2011 Supp. 38–2269[b][7] ); the lack of effort of Mother to adjust her circumstances, conduct, or conditions to meet A.C.'s needs (K.S.A.2011 Supp. 38–2269[b][8] ); and the failure to carry out a reasonable reintegration plan approved by the court (K.S.A.2011 Supp. 38–2269[c][3] ). She claims that the State failed to present clear and convincing evidence to support these findings.
The State contends that the court was right to terminate Mother's rights, relying on K.S.A.2011 Supp. 38–2269(b). The State argues that there was no real change in Mother's circumstances from the time A.C. was placed in state custody to the time of the termination hearing. In addition, the State contends that Mother's stability is dependent on her boyfriend and that without him she does not have steady income or housing.
Looking at the evidence in the light most favorable to the State, as we are required to do, the district court's finding of unfitness was supported by clear and convincing evidence. The district court found that between October 2011 and April 2012, Mother missed 13 visits with A.C. Although Mother was sometimes unable to afford gas, she knew there were gas vouchers available to her in order for her to attend her scheduled visits, but she failed to ask for those vouchers when needed. After failing two UA's, Mother was ordered to complete a drug-and-alcohol evaluation and follow any recommendations that were made. Mother completed the evaluation, but she was discharged from the treatment program for failure to participate. Throughout the course of the case, Mother was unable to verify that she had either stable employment or a stable home. While Mother testified at the hearing that she had been in a relationship with her new boyfriend for 5 months, Pate reported that Mother said 2 weeks before the hearing that she was not yet in a relationship with him. As for income, Mother testified that she was earning some income from exotic dancing, but Pate noted that this income could go away at any time because Mother couldn't get the required license. In addition, Mother testified that she had moved from club to club and that she was making only $7 to $15 per night at the club she had recently switched to. (She said she had made better money at some other clubs, but left one “because I was dating the cook there, and when we separated, it just, it wasn't really working out, working there.”)
These facts proved by the State all support the trial court's finding that Mother was unfit because of conduct or condition that rendered her unable to care properly for A.C. See K.S.A.2011 Supp. 38–2269. In addition, the case began when A.C. was removed from her grandparents' home in February 2011, and the termination hearing was held in June 2012. In the almost year and a half that A.C. had been in an out-of-home placement, Mother was unable to complete several key steps in the approved reintegration plan ( i.e., maintaining a stable home, having stable employment, and staying drug-free), proving that the conduct or condition was unlikely to change in the foreseeable future. See K.S.A.2011 Supp. 38–2269(a).
We recognize that Mother had some facts on her side. She had made some efforts to follow the reintegration plan, and her love for her child was not questioned. But in determining whether her “conduct or condition is likely to change in the foreseeable future,” courts are to consider “foreseeable future ... from the child's perspective, not the parent['s], as time perception of a child differs from that of an adult.” In re S.D., 41 Kan.App.2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009); accord In re D.T., 30 Kan.App.2d 1172, 1174–75, 56 P.3d 840 (2002). In addition, as we have already emphasized, we must view the facts presented in the light most favorable to the State. Under these standards, the trial court's unfitness finding is supported by clear and convincing evidence. The District Court Did Not Abuse Its Discretion in Finding That Termination of Parental Rights Was in the Child's Best Interest.
Following a finding of parental unfitness, the trial court must next determine whether termination of parental rights is in the best interest of the child. K.S.A.2011 Supp. 38–2269(g)(1). The trial court is in the best position to decide whether termination is in the best interest of the child, and Mother concedes that an appellate court cannot overturn that decision without finding 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, 318, 235 P.3d 1255,rev. denied 291 Kan. 911 (2010).
The typical standard of review for abuse of discretion is whether a reasonable person could have agreed with the district court. If so, then there is no abuse of discretion. In addition, the district court abuses its discretion if its ruling is based on a factual error or a legal error. See Critchfield Physical Therapy v. Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011).
Mother contends that the trial court abused its discretion because it terminated parental rights before looking into any other options, such as temporary or permanent guardianship. In support of her argument, Mother cites to In re Atwood, 2 Kan.App.2d 680, 681, 587 P.2d 1 (1978), where our court said that in order to find that the child's best interest would be served by termination of parental rights, the court must find that “under no reasonable circumstances can the welfare of the child be served by a continuation of the parent-child relationship.” Based on Atwood, Mother asserts that the court must first explore and eliminate alternative remedies before severing her parental rights.
The State argues that the court did not abuse its discretion, stating that “no evidence offered at trial ... would lead a court to believe that it would be in A.C.'s best interest to wait any longer for her Mother to be able to provide [her] most basic needs.” The State looks to the fact that Pate testified it would not be in A.C.'s best interest to allow Mother more time to complete the reintegration plan, as well as the fact that Mother had not had custody of A.C. since September 2008.
The amount of consideration the district court must give to alternatives that would preserve the parent-child relationship has been clarified by our Supreme Court since the Atwood decision that Mother relies on. In In re Brooks, 228 Kan. 541, 551, 618 P.2d 814 (1980), the Kansas Supreme Court stated that “[t]o require a court specifically to explore, consider and reject each such [alternative remedy] prior to termination is unrealistic and could be disastrous.” The court instead imposed a modified test in which a court is required to consider alternatives to termination only if an interested party raised such an alternative at trial. 228 Kan. at 551.
In this case, the only alternative that was mentioned at the termination hearing was the possibility of giving Mother more time to complete the reintegration plan. But the district court, in announcing its decision, noted that the guardian ad litem only recommended some 2 extra months in which to follow through with the reintegration plan. The court also noted that because of A.C.'s age and the amount of time she had already been out of the home, it was in her best interest to sever parental rights so that A.C. could gain permanency elsewhere.
A reasonable person could agree with the district court in finding that A.C. was best served by the termination of her relationship with Mother. The court considered an alternative that was presented, but it determined the alternative not to be in A.C.'s best interest. Because the court was only required to consider any alternative remedy presented and did in fact do so, it did not make a mistake of law. Nor has any mistake of fact been shown. Therefore, the trial court did not abuse its discretion in determining that it was in A.C.'s best interest to sever Mother's parental rights.
The district court's judgment is affirmed.