Opinion
Nos. 109,107 109,108.
2013-06-21
In the Interest of A.H. and A.H.
Appeal from Geary District Court; Maritza Segarra, Judge. John Purvis, of Purvis Law Office, LLC, of Abilene, for appellant natural mother. Michelle Brown, assistant county attorney, for appellee.
Appeal from Geary District Court; Maritza Segarra, Judge.
John Purvis, of Purvis Law Office, LLC, of Abilene, for appellant natural mother. Michelle Brown, assistant county attorney, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
C.H. (Mother), natural mother of Ad.H. (born in 2009) and An.H. (born in 2011), appeals from the termination of her parental rights as to both children. After a thorough review of the record, we affirm.
Facts
The family first came to the attention of the State on September 17, 2011. On that date, a Grandview Plaza police officer was called to the family's apartment along with an ambulance due to an injury sustained by 2–year–old Ad.H. Mother told the officer that Ad.H. had injured her leg the evening before while they were playing together. Mother admitted that she occasionally spanked the girl and had spanked her the evening before, but Mother believed the injury was caused by playing. The child was crying and appeared to be in considerable pain. However, EMS found no obvious bone break. EMS recommended Mother seek treatment due to the obvious amount of pain the child was experiencing. Mother and her husband informed EMS and the officer that they would transport Ad.H. to the doctor and signed a written release declining transportation by the ambulance.
More than 24 hours later, a second officer conducted a follow-up investigation and found that Mother had not taken Ad.H. to the doctor or hospital as promised. The child still appeared to be suffering intense pain, and her leg was bruised and extremely swollen from her hip to her knee. Mother told the officer that the ambulance had refused to transport Ad.H. to the hospital the day before. At the officer's insistence, Mother and her husband attempted to find someone to transport them to the hospital; when they were unsuccessful, the officer called an ambulance. Ad.H. was transported by ambulance to Mercy Hospital in Manhattan.
Once there, doctors determined that Ad.H. had sustained a compound spiral fracture to her left femur that extended most of the length of the bone. When questioned by the doctor, Mother reported that she had spanked Ad.H. with her hand and a belt, after which the child could not walk. The doctor stated that such a fracture usually occurs from a twisting motion and was not consistent with Mother's explanation of a spanking, even if Mother had hit the child's leg. The doctor admitted it was possible the injury could have occurred if the child had turned and fallen while Mother was spanking her, but Mother did not report this occurring. Ad.H. was required to undergo orthopedic surgery to repair the damage.
Based upon the nature of the injuries and the circumstances under which the injuries were alleged to have occurred, hospital personnel reported the family to law enforcement. When Mother was interviewed by police again, she admitted she had spanked Ad.H. with an open hand on her buttocks. When the officer expressed disbelief, Mother stated that she may have used more force than she had initially demonstrated. Finally, Mother admitted she also used a belt when spanking the child. Mother was arrested by police, and Ad.H. was placed in juvenile intake. Mother subsequently was charged with aggravated abuse of a child and aggravated child endangerment. The court formally granted the Kansas Department of Social and Rehabilitation Services (SRS) custody of the children the next day.
On September 22, 2011, the State filed a petition alleging Ad.H. and her younger sibling An.H. were children in need of care (CINC). Mother thereafter stipulated to the allegations in the CINC petition, and the court found the children were in need of care. The children were ordered to out-of-home placement. A case planning meeting was held on October 5, 2011, with the goal of reintegration with Mother. Mother failed to appear at the first planning meeting and appeared by telephone at the rescheduled meeting. As the case progressed, Mother participated in some of the case planning meetings but not all of them.
As a result of the CINC adjudication, the court issued various orders to Mother. She was ordered to cooperate with TFI Family Services (TFI), the service contractor for SRS. She was also ordered to work with Family Advocacy Services, update all her personal information with TFI, and to participate in monitored visitation. Mother also was ordered not to use physical discipline with the children.
In conjunction with these orders, Mother underwent parenting psychological evaluation at Pawnee Mental Health Services from December 2011 through January 2012. Mother told the psychologist that she had disciplined her 2–year–old daughter by spanking her, during which the child twisted and broke her leg. The psychologist interpreted Mother's statements to be an effort to shift blame for the injury onto the child. The psychologist stated Mother was not aware of the typical behavior of a 2–year–old child and that Mother exhibited some depressive symptoms. Based upon the evaluation, the psychologist prepared a written report for TFI recommending Mother (1) participate in individual therapy, (2) obtain a psychiatric evaluation to determine if medication was warranted, (3) participate in the Geary County Infant/Toddler program, (4) participate in the Parent as Teacher program to build a support network, (5) obtain a driver's license and reliable transportation, (6) participate in parenting classes, and (7) develop a safety plan. The psychologist did not discuss the recommendations personally with Mother. These recommendations, however, were added to TFI's case plan.
During the time period in which reintegration with Mother was the stated goal, the court entered an order increasing the frequency of visitation and changing the visits from monitored to unsupervised and then to overnight visits. When TFI workers picked up the children from these visits, they discovered the children had not been fed during the 4–hour midday visit. Mother did not seem to have food available in the home and rejected offers to transport her to the grocery store. Mother also did not appear to be changing An.H.'s diaper even though a diaper bag was taken to the visits. Because of concerns arising from unsupervised visits, the court thereafter ordered the visits revert to being monitored. During these visits, Mother would leave the room with An.H. unsupervised on a couch, ignore the children, leave them to interact only with each other, and talk on the phone even though instructed to hang up. After April 2012, Mother only attended 40 percent of the visits offered by TFI.
TFI and other providers had difficulty staying in contact with Mother, who changed her phone number several times. Due to communication problems, Mother did not begin working with Family Advocacy Services and New Parent Support until February 28, 2012. The last time she met with them was April 30. Mother failed to participate in individual therapy, claiming transportation problems. Although Mother reported that she started therapy in April 2012, she failed to provide the necessary release required to confirm her assertion. Mother did not obtain a driver's license because she found the lines too long at the motor vehicle office.
Mother's criminal case remained pending during most of the reintegration efforts. Pursuant to the terms of a plea agreement between Mother and the district attorney, she eventually pled no contest to charges of abuse of a child and aggravated child endangerment. The sentence imposed as a result of the plea prohibited Mother from having any contact with Ad.H., and barred unsupervised contact with An.H. for 36 months. Mother was arrested on new criminal charges in 2012 when she violated a protective order by appearing at the children's daycare center without permission.
In April 2012, TFI's permanency recommendation moved from reintegration to adoption or permanent guardianship. At the next review hearing in July 2012, Mother failed to personally appear. At this point, the State filed a motion to terminate Mother's rights.
The court held a termination hearing on November 1, 2012. Although Mother assured her attorney she would attend the hearing, she failed to appear. During the hearing, the case manager testified that Mother completed a parenting class with a TFI worker and a parenting class provided on the Fort Riley military base. Mother also participated with the Family Advocacy group and Parents as Teachers organization. On the other hand, the evidence set forth above demonstrating Mother's lack of effort to comply with other requirements of the integration plan also was presented.
At the conclusion of the evidence, the district court found clear and convincing evidence that Mother was unfit, that the conduct or condition which rendered her unfit was unlikely to change in the foreseeable future, and that termination of her parental rights was in the best interests of the children. The court's journal entry was filed December 10, 2012. Mother timely appealed from that order.
Analysis
On appeal, Mother argues that there was not clear and convincing evidence to support the termination of her parental rights. Mother cites to her youth and her own childhood in the foster care system. She argues the district court put too much weight on her criminal conviction when she pled no contest. Finally, she references the efforts she made to change her circumstances and asserts she should not be penalized because she “gave up” in April 2012 when caseworkers changed the permanency plan goals to adoption and permanent guardianship.
Before terminating a parent's parental rights, the district court is required to make three findings. First, the court must find by clear and convincing evidence that the parent is unfit. Second, the court must find that the parent's conduct or condition which renders him or her unfit is unlikely to change in the foreseeable future. Finally, the court must determine that termination of parental rights is in the best interests of the child. K.S.A.2012 Supp. 38–2269(a), (g)(1).
When this court reviews a district court's termination of parental rights, we consider whether, after review of all the evidence, viewed in the light most favorable to the State, we are convinced that a rational fact finder could have found it highly probable, i.e., by clear and convincing evidence, that the parent's rights should be terminated. In re K.W., 45 Kan.App.2d 353, 354, 246 P.3d 1021 (2011) (citing In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 [2008] ).
In its ruling, the district court found a number of the factors set forth in K.S.A.2012 Supp. 38–2269 formed the basis of its decision. The court cited K.S.A.2012 Supp. 38–2269(b)(2) and (b)(4), noting that Mother had physically abused Ad.H., causing the spiral fracture of her leg. The same conduct was a factor for An.H. under K.S.A.2012 Supp. 38–2269(b)(6) (unexplained injury of another child while in the parent's care). The court cited Mother's conviction of a felony as a factor under K.S.A.2012 Supp. 38–2269(b)(5), focusing primarily on the conditions of probation prohibiting or limiting Mother's contact with the children for 36 months. The court found Mother failed to make sufficient progress in carrying out the terms of the reintegration plan and that SRS and TFI had made reasonable efforts to reintegrate the family. K.S.A.2012 Supp. 38–2269(b)(7), (b)(8). The court also relied on K.S.A.2012 Supp. 38–2271(a)(5), finding that the children had been in an out-of-home placement for more than 1 year and Mother had substantially neglected to carry out a reasonable reintegration plan.
Based upon the facts set forth above, the evidence presented by the State met the clear and convincing evidence standard. The record reflects that Mother seriously injured a 2–year–old child while disciplining her in a manner that caused a spiral fracture to the child's leg and that Mother's explanations for the injury did not fit the nature of the injury sustained. Although Mother took parenting classes and initially participated in visitations, she engaged in inappropriate conduct during unsupervised visits, which caused the district court to order that visitations be supervised. Mother made little or no effort to seek out individual therapy to resolve the parenting concerns expressed or to obtain a driver's license in order to assist with resolving the frequent transportation issues. Finally, Mother's choice to give up on the process after the case plan was modified reflects a lack of commitment to her children.
Based on a thorough review of the record, we find clear and convincing evidence to support the district court's decision that Mother was unfit, that the conduct or condition which rendered her unfit was unlikely to change in the foreseeable future, and that termination of parental rights was in the best interests of the children.
Affirmed.