Opinion
No. 112,198.
2015-04-29
In the Interest of C.G. and A.G., Minor Children Under the Age of Eighteen.
Appeal from Crawford District Court; Lori A. Bolton Fleming, Judge.Maradeth Frederick, of The Frederick Law Office, LLC, of Frontenac, for appellants natural parents.Michael Gayoso, Jr., county attorney, for appellee.
Appeal from Crawford District Court; Lori A. Bolton Fleming, Judge.
Maradeth Frederick, of The Frederick Law Office, LLC, of Frontenac, for appellants natural parents. Michael Gayoso, Jr., county attorney, for appellee.
Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.
MEMORANDUM OPINION
POWELL, J.
N.G. (Father) and S.G. (Mother), the natural parents of C.G. and A.G., appeal the termination of their parental rights in this consolidated case. The parents challenge the evidence supporting the district court's findings they are unfit parents and that termination is in their children's best interests. We affirm.
Factual and Procedural History
On January 4, 2012, the State filed a petition pursuant to K.S.A.2013 Supp. 38–2234, alleging C.G. (born in 2011) and A.G. (born in 2009) were children in need of care. At a temporary custody hearing held the next day, the court ordered the children removed from the home because of the conditions there. The children were adjudicated children in need of care on May 8, 2012, because the home's conditions were unsanitary and unsafe and because the parents had been noncompliant with the services offered. The court ordered the children to remain in out-of-home placement.
The State filed its first motion for termination of parental rights in December 2012, followed by an amended motion in August 2013. After some delays, the severance hearing was ultimately held in May 2014.
Mother has five older children from other relationships, but family members took custody of these children while they were still young, and Mother has raised none of them. Mother and Father executed consents to permanent custody for both children in the present case, but Mother's father and stepmother, the intended custodians, declined. Father testified they had executed the consents because “it would be best interest [ sic ]” of the children, but Father could not remember why they thought so. Mother testified, “[W]e had gotten tired of dealing with the State [of Kansas], I figured it would be best to get them with family rather than continue dealing with the State.”
Father suffers from psychosis, takes medication to control aural and visual hallucinations, and has unspecified delusions. Father has applied for disability payments on the basis that he cannot work around others, but he has been denied twice. Father nets about $127 per week driving a taxi and testified he can find no other employment. Mother suffers from depression and has essentially no income. She testified, “I've had plenty of work history. It is just none of it has been consistent.”
At the time of the termination trial, the parents' rights to their first child had been terminated in Missouri. The Missouri court found the parents had been served, but both failed to appear. The Missouri court also found the parents had moved 12 times after the birth of their oldest child in 2008. The evidence in the present case overlapped somewhat with the Missouri case, but it showed the parents moved about 8 times between February 2010 and the termination-of-parental-rights trial on May 21, 2014. The children were removed from the home in January 2012, and the parents were evicted in November 2012. In December 2012, the parents leased a one-bedroom apartment despite the district court's grant of authority to social workers to return the children to the home if appropriate. The parents kept the apartment during the entire course of the reintegration efforts and were still paying rent on it at the time of the May 2014 trial.
The parents were not living in the apartment at the time of trial, however. About a month earlier they had moved into a house leased by a friend, but the friend died just before trial, and the parents had no commitment from the landlord as to whether they could remain. A social worker had earlier advised the parents to obtain subsidized housing, and the parents had told the social worker that they were on a waiting list. However, the social worker testified the parents should have been accepted by the time of the termination trial, and Father admitted in testimony that he had removed their names from the list when they obtained the one-bedroom apartment.
Other adults intermittently stayed with the parents in the apartment despite its size. One of these, Jonathan Sherman, who was Father's friend and a registered sex offender, listed the apartment as his residence. After an unsupervised visitation in January 2013, A.G. had bruising on his buttocks, close to his scrotum. Social workers supervised visitations for a while but, not knowing Sherman's status, returned to unsupervised visitations. After an unsupervised visitation in November 2013, C.G. was bleeding from his anus. Social workers then discovered Sherman's status, and the police investigated. A social worker was unable to substantiate that the bleeding was due to sexual abuse, however.
The parents testified that the November 2013 investigation was their first knowledge of Sherman's status as a sex offender. The parents nevertheless maintained contact with Sherman, for example, by accepting his help in readying a house into which they were considering moving. When Sherman personally moved into the house, the parents either did not move in or did not stay long, but they still allowed social workers to bring the children to the house for supervised visitation several times thereafter.
At the time of the termination trial, the children had been in the State's custody for 28 months. Laura Ferlo, a licensed professional counselor who had worked with the parents, recommended against termination of parental rights. Ferlo believed that although social workers had earlier found dangerously filthy living conditions in the various places the parents had lived, since that time the parents had done a good job of maintaining cleanliness. She also believed the parents had made progress in their parenting skills “over the course of these months.”
The district court did not accept Ferlo's recommendation. In a careful and thorough opinion, the district court found two statutory presumptions of unfitness applied and the parents had not rebutted these statutory presumptions. The court also found, independent of the statutory presumptions, the parents were unfit. Finally, the district court found termination of parental rights was in the best interests of the children. The parents timely appeal.
Did the Parents Rebut the Presumptions of Unfitness?
The district court may apply the unfitness presumption only if the State proves the facts supporting it by clear and convincing evidence. K.S.A.2013 Supp. 38–2271(a). Accordingly, appellate review requires evidence that could convince a rational factfinder that the facts were highly probable. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). As the parents do not dispute the district court's application of the statutory presumptions of unfitness, we need not consider this point.
The district court held under K.S.A. 60–414(a) that two statutory presumptions applied: K.S.A.2013 Supp. 38–2271(a)(1), a “parent has previously been found to be an unfit parent,” and K.S.A.2013 Supp. 38–2271(a)(5), “the child has been in an out-of-home placement ... for a cumulative total period of one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan ... directed toward reintegration.” The parents bore
“[t]he burden of proof ... to rebut the presumption of unfitness by a preponderance of the evidence. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall terminate parental rights in proceedings pursuant to K.S.A.2013 Supp. 38–2266 et seq. , and amendments thereto.” K.S.A.2013 Supp. 38–2271(b).
In other words, the parents were required to either present evidence directly negating the presumption or evidence otherwise showing their fitness as parents. In re X.D., No. 111,294, Slip Op. at 6 (Kan.App.2014). Given that they did not object to the district court's application of the presumptions, the parents were required to present evidence of their fitness. Their burden was lower than the clear and convincing standard borne by the State in establishing a presumption in the first instance or parental unfitness generally. See K.S.A.2013 Supp. 38–2269(a); K.S.A.2013 Supp. 38–2271(a); K.S.A. 60–401(d) (distinguishing clear and convincing standard from preponderance of the evidence); Kelly v. VinZant, 287 Kan. 509, 522, 197 P.3d 803 (2008) (same); see also In re Adoption of B.B.M., 290 Kan. 236, 243, 224 P.3d 1168 (2010) (citing K.S.A.2009 Supp. 38–2271[a] and [b] to show “the legislature knows how to delineate a different allocation of the burden of proof in a similar situation if it desires to do so”).
Whether a party has rebutted a presumption is a question of fact. See In re Estate of Newland, 240 Kan. 249, Syl. ¶ 9, 730 P.2d 351 (1986); State v.1978 Chevrolet Automobile, 17 Kan.App.2d 144, Syl. ¶ 2, 835 P.2d 1376 (1992). “When a trial court considers a question of fact which must be proved by a preponderance of the evidence, this court's review is limited to determining whether substantial competent evidence supports the trial court's finding.” State v. Bailey, 292 Kan. 449, 453, 255 P.3d 19 (2011).
The parents argue “[i]t is clear from the evidence that [they] are doing well,” but the question was whether they were presently fit and able to care for the children or would be able to do so within the foreseeable future. The parents point to Ferlo's opinion, but she admitted she saw the parents with their children only an hour a week and did not know how well they would do as full-time parents. The parents claim the district court erred in attributing this opinion to Ferlo, but, in fact, she did testify as the district court found. Ferlo further testified she thought the parents still needed support and did not recommend immediate reintegration because “they don't have a home that is adequate for those children to go to.”
The parents also claim Kelly Rojo Alfaro, the case manager at the time of trial, testified the family had progressed and improved, but they do not cite to the record for this assertion. Our review of the record shows Alfaro testified that in the 11 months before trial the parents had not consistently provided rent receipts, were at one point 3 months behind on their rent, had their utilities turned off twice, and cockroaches were increasing in the apartment despite two exterminations. Moreover, Alfaro opined that continuing with family therapy was still definitely needed, and she identified “learning parenting skills” as a continuing goal. She said the children were not yet reintegrated because of concerns with the unstable housing, the utilities, and parenting.
The parents further argue the State offered no professional testimony that the parents' unfitness was unlikely to change. But the parents do not challenge the application of the presumptions to them, so the State's proof of unfitness is not at issue here. Furthermore, the case cited by the parents, In re K.R., 43 Kan.App.2d 891, 903, 233 P.3d 746 (2010), does not suggest “professional testimony” on the point is required.
The evidence identified by the parents on appeal did not rebut the presumption. The district court found Father remained chronically underemployed and Mother had never raised any of her eight children. These facts, which among many others were uncontroverted, showed a low level of functioning by the parents. Thus there was ample evidence their problems would not be remedied within the foreseeable future, especially considering “that the time perception of a child differs from that of an adult.” K.S.A.2013 Supp. 38–2201(b)(4); see In re M.B., 39 Kan.App.2d 31, 45, 176 P.3d 977 (2008) (considering the “ ‘foreseeable future’ “ from a child's perspective). Substantial competent evidence supported the district court's finding that the parents had not rebutted the statutory presumptions.
Did the State Prove the Parents Were Unfit Apart From the Presumptions?
The parents contend the district court's finding of unfitness apart from the presumptions was unsupported by the most current evidence regarding the family.
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). The Revised Kansas Code for Care of Children, K.S.A.2013 Supp. 38–2201 et seq ., 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. 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, i.e., by clear and convincing evidence, when viewed in the light most favorable to the State. In re B.D.-Y., 286 Kan. at 705. 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 the parents were unfit under K.S.A.2013 Supp. 38–2269(b)(7), “failure of reasonable efforts ... to rehabilitate the family”; K.S.A.2013 Supp. 38–2269(b)(8), “lack of effort ... to adjust the parent's circumstances, conduct or conditions to meet the needs of the child”; K.S.A.2013 Supp. 38–2269(b)(9), the “child has been in extended out of home placement”; and K.S.A.2013 Supp. 38–2269(c)(3), “failure to carry out a reasonable plan ... toward the integration of the child into a parental home.”
The parents identify several facts which, in their opinion, show they are not unfit. First, they point out that by the time of trial they had completed their case plan tasks and assert “[r]easonable efforts had not failed if the parents had done all that was required .” But the question was not whether the parents had completed their tasks, but whether they were fit parents. Alfaro, who testified to the parents' completion of the tasks, qualified her testimony by adding that the parents still were unable to maintain utility service, still had not provided stable housing, still needed family therapy, and still needed to learn parenting skills.
Next, the parents, noting they had unsupervised visitation for several weeks before the termination trial, assert if the provisions cited by the district court to support termination had applied, it would be unusual for them to receive unsupervised visits with their children. However, there was no testimony on that point and, thus, no factual basis for concluding that a brief allowance of unsupervised visitation showed fitness. Moreover, the visits were only 3 hours per week, 1 hour of which was in Ferlo's presence. At the time of trial in May 2014, the parents had not had overnight visitation for nearly a year and a half, and the foster father testified that the children returned from visitation “extremely defiant” and “generally really hyped up.”
The parents also complain the district court seemed to discount or ignore their own testimony regarding Sherman, the registered sex offender. However, this argument requires us to reweigh the evidence or make credibility determinations, which we cannot do. The district court had reason to discount the parents' testimony that they avoided Sherman. For example, Father testified Sherman was never around the children, but a social worker testified that police confirmed Sherman had left the parents' home at 9 a.m. on the day the allegations of sexual abuse of C.G. were made in November 2013. Morover, Father also testified they kept the children from Sherman once they knew his status, but the parents continued their association with him.
Finally, with respect to the house in which they were living during the trial, the parents assert “[t]here is a home for the children to go to contrary to the findings of the [district] court.” But Father testified he had not paid rent on that house in May 2014, the month the trial was held. The following exchange then occurred at trial:
“Q. Okay. Is the plan that you are supposed to ... pay the landlord for staying there in May ... ?
“A. He's going to talk to the owner of the property about that.
“Q. Who is the owner of the property?
“A. I'm not for sure.
“Q. So who is the person you are dealing with?
“A. Steve, he's the apartment [sic] manager.
“Q. Do you know what Steve's last name is?
“A. No.”
In other words, the parents did not know whether they could remain in the house. Testimony indicated the landlord would not even consider the question until the family of the parents' dead friend had removed his belongings from the house.
After our review of the record, we conclude the evidence considered in the light most favorable to the State was sufficient for a rational factfinder to find it highly probable the parents were unfit.
Did the District Court Abuse Its Discretion in Finding Termination Was in the Best Interests of the Children?
The parents contend there was no evidence that termination would be in the best interests of the children. They also claim the district court's decision to terminate was unreasonable, concluding the district court abused its discretion in finding that termination was in the best interests of the children.
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, 336 P.3d 903, 910 (2014) (No. 111,027 filed October 24, 2014).
“If the court 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. In making the determination, the court shall give primary consideration to the physical, mental and emotional health of the child. If the physical, mental or emotional needs of the child would best be served by termination of parental rights, the court shall so order.” K.S.A.2013 Supp. 38–2269(g)(l).
The guardian ad litem (GAL) in the present case argued termination was not in the best interests of the children, and the parents claim the present case is similar to In re K.R., 43 Kan.App.2d 891, 894, 233 P.3d 746 (2010), where the GAL also opposed termination. The panel in K.R. gave some deference to the GAL's position under the facts there, reversing a district court's decision to terminate parental rights. 43 Kan.App.2d at 904–05.
Several factors distinguish the present case from K.R. The facts supporting termination are stronger here than in K.R. The children here were young and not yet in school at the time of the termination trial, while the children in K.R. were 8, 13, and 16 years of age. Unlike the present case, several witnesses in K.R. had apparently assumed a “fixed deadline of 1 year for reintegration.” 43 Kan.App.2d at 905. And, unlike the present case, there is no mention in K.R. of prior terminations or failures to raise other children. The mother in K.R. had bipolar disorder and had difficulty maintaining employment, similar to the parents here, but in K.R., “[t]here [were] no allegations of abuse, ... no allegation of filthy living conditions, no allegations of a dangerous relationship ..., and no allegations of lack of interest in the children.” 43 Kan.App.2d at 904–05. Finally, while the children in the present case had little contact with their parents for over 2 years of their young lives, the panel in K.R. found: “The relationship between mother and children [did] not appear to have deteriorated in any way.” 43 Kan.App.2d at 894.
The district court's discussion shows its appreciation of the particular facts at issue in the present case:
“The children were born in 2009 and 2011, and are now approximately three and five years old. It is not in the best interests of the children to indefinitely visit the parents but not be reintegrated. The parents have had 28 months to complete a reasonable case plan, establish appropriate housing, become appropriate[ly] employed, and develop appropriate parenting skills, and they have simply failed to do so. These cases are to be considered in ‘child time.’ The children have been placed with the same foster family for over two years, and have bonded with this family. Any contact with their natural parents over this time has been minor compared to the amount of care these children have needed-and received-over the same time period from their foster parents.... No witness has identified any reasonable date in the foreseeable future that the children can be appropriate [sic] returned to their parents. How long are these children to wait? The Court finds that 28 months is long enough, especially considering the escalating behavior of the children after parental visits, and the fact they will soon begin school.”
The GAL in the present case, however, only objected to termination because things were on the “upswing.” He thought, in fact, that “if we were going to proceed to a termination of parental rights, it should have been eight or ten months ago instead of now.” Thus the GAL in the present case did not argue for immediate reintegration, unlike the GAL in K.R. Considering also the longer period at issue here than in K.R., a. reasonable person could agree with the district court's rhetorical question: “How long are these children to wait?” Without a clear answer to that question, and considering the parents' difficulties in accommodating themselves to the needs of their children, a reasonable person could conclude more waiting was not in the children's best interests.
The district court in the present case made detailed findings and explained its rationale thoroughly. The panel in K.R. indicated that its deference to the GAL's opinion was based in part, perhaps in large part, on the district court's failure to make adequate findings. See 43 Kan.App.2d at 904–05. Since that was not the case here, the deference to the GAL shown in K.R. provides less guidance here than it otherwise might.
Finally, the parents assert the evidence from “the professionals” was positive for the parents. The district court addressed this as well:
“The parents' own witness ... Ferlo, testified she does not know if the parents will ever be able to parent these children on their own, and she continues to recommend against returning the children to the parental home. It is important to again note that both parents expressed to [another social worker] they did not wish to be full time parents to their children—they simply wanted continued contact. The Court acknowledges the parents have waxed and waned in this case, and there is some evidence they are doing somewhat better now than they have in times past, but that does not change the fact that these children have waited long enough for permancy—28 months in an out of home placement with no foreseeable date to return home.”
Contrary to the parents' contention, there was evidence that termination was in the children's best interests. Although a reasonable person could perhaps disagree with the district court's conclusion, we cannot conclude that no reasonable person could agree with the district court's decision. See State v. Lowrance, 298 Kan. 274, 295, 312 P.3d 328 (2013). The district court did not abuse its discretion in terminating parental rights.
Affirmed.