Opinion
No. 113,596.
12-18-2015
In the Interest of D.B. (dob xx/xx/12) and D.B. (dob xx/xx/12).
Dennis J. Stanchik, of Olathe, for appellant. Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Dennis J. Stanchik, of Olathe, for appellant.
Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
MEMORANDUM OPINION
PER CURIAM.
D.B. is the natural mother of twin girls, D'M.B. and D'N.B., appeals from the district court order terminating her parental rights. Mother contends the State failed to present clear and convincing evidence that she was an unfit parent or that her unfitness would unlikely change in the foreseeable future. Mother specifically attacks each and every ground upon which the court relied in terminating her rights. We affirm.
Mother gave birth to D'M.B. and D'N.B. in late August, 2012, nearly 3 months premature. By mid-November 2012, the State had filed petitions seeking to declare each child to be a child in need of care (CINC) under K.S.A.2014 Supp. 38–2234. The petitions alleged the children were living with Mother and maternal grandmother in an apartment in Shawnee, Johnson County, Kansas. As a minor, Mother had been placed in the custody of the Department of Social and Rehabilitation Services, now the Department of Children and Families (DCF), in 2006. She had been removed from the home because of her mother's (Grandmother's) drug use. Ultimately, Mother was reintegrated with Grandmother in 2007.
In November 2012, DCF received a report indicating the children were the subject of possible neglect. Mother was receiving little or no assistance with the infants from Grandmother. The children had been released from the hospital on October 29, 2012, and were required to take medications and multi-vitamins but Mother had not obtained all the medications because of a lack of transportation. It was reported that Mother had no baby supplies and the children were sleeping in the same bed as Mother. DCF was especially concerned because Mother was overweight, thereby increasing the risk a child might be injured while sleeping with her. Several days later, the children were placed in a long plastic storage box lined with a blanket to sleep. Although the children had their first check-up with their pediatrician, Mother had not scheduled a follow-up appointment. At the time, Mother was not working but was receiving social security income. She had to rely on her Mother or other family or friends for transportation.
Prior to the children's initial release from the hospital, hospital personnel reported they were concerned about Mother's ability to care for the children as she had little support at home and seemed to be easily overwhelmed. Mother even told a nurse she did not know if she could take care of the children. In addition, Mother showed immature behavior, wanting to sleep more than feed the children. Accordingly, the hospital arranged from home health services when the children were finally discharged.
After the children went home, a home health care agency was providing services every other day. When DCF visited the home on November 5, 2012, they saw only a few items of clothing for the children and only one can of formula. Mother knew the children had various appointments at Children's Mercy Hospital South, but did not have the dates or times written down. Mother declined family preservation services from DCCCA (formally known as the Douglas County Citizens Committee on Alcoholism) at that time.
At a visit 2 days later, DCF found the children sleeping together in a bassinet. Mother had attended a social service appointment the day before and received Women, Infant and Children (WIC) support sufficient to buy ten cans of formula. Despite the midmorning meeting, Mother appear extremely exhausted and had difficulty following the conversation. She reported she had been up with one of the children. While Mother's home had more supplies, there were other concerns. DCF workers thought the children's clothing and diapers were too large and that Mother did not appear to know how to properly hold an infant because she did not fully support the child's head. Mother seemed somewhat rough when dressing one of the children and used a Q-tip to clean out the child's nose, causing it to bleed. DCF workers again encouraged Mother to make use of family preservation services. After being strongly recommended a third time by DCF, Mother agreed to accept family preservation services from DCCCA.
DCF interviewed one of the home health care workers helping Mother with the children. The worker reported it appeared Mother had some cognitive impairment and Grandmother provided Mother no assistance, acting as if the children were not even there. At one of the doctor's appointments, Mother fell asleep in the waiting room and a child had to be removed from her arms before she fell. In addition, Grandmother would constantly turn down the heat, making the apartment too cold for the children.
On November 9, 2013, DCF was advised that the pediatrician wanted the children admitted to the hospital for failure to thrive. D'M.B. had only gained 1/2 ounce per day and D'N.B. had not gained any weight since her release from the hospital. Mother was upset the children could not come home because there was a baby shower scheduled for the following Saturday. After being admitted to the hospital, the children gained weight appropriately. Still, hospital personnel were concerned whether Mother could care for the children on her own. For example, Mother took the bottle away from the children even though they had not consumed the recommended volume of formula. In addition, Mother had trouble doing the basic arithmetic needed to properly fix the formula. Although Mother was at the hospital every day, she did not remember to give the children medication until prompted by nursing staff. Mother reported that she was planning on moving in with her sister and a friend in Wyandotte County. Hospital personnel reported that the aunt to the children would need to be a significant caretaker. However the aunt worked during the day and attended school at night.
DCF and DCCCA personnel meet with Mother and her friend at the hospital on November 13, 2012. They discussed Mother's plans to move in with her sister and her sister's work and school schedule. Throughout the meeting, Mother regularly interrupted the social service workers by commenting about her food cravings, checking her Facebook page, and discussing other matters not related to the services or her children. Mother stated she felt “forced” to accept DCCCA services and stated she did not believe she was a “bad mom.” During the discussions, she referred to one of the children as being a “brat” and used a vulgar name toward one of the children.
At the termination hearing, Jessica Sieker testified about DCF's initial involvement with the family shortly after the children's birth, as well as the time when Mother had been found a CINC when she was a minor. Sieker's testimony mirrored the allegations in the original CINC petition, including the initial lack of supplies, apparent cognitive issues, and the concerns of the home health care workers. During her first interactions with Mother, Sieker believed Mother did not grasp the seriousness of the children's needs and DCF's concerns. She also believed that Mother was overwhelmed in handling the children for the short time they had been out of the hospital. Mother seemed immature in other ways.
The State filed CINC petitions alleging Mother was unable to meet the day-to-day needs of the premature children and it was contrary to the children's interests in remain in the home at that time. A temporary custody hearing was held on November 15, 2012; Mother attended the hearing and was represented by counsel. The district court placed the children, who were still hospitalized, into the temporary custody of DCF.
After some difficulty, the State ultimately served the putative father of the children, M.S., with notice of the proceeding. At an adjudication hearing in January 2013, Mother filed a no contest statement in response to the CINC petitions. After paternity was confirmed, Father also filed a no contest statement in response to the CINC petitions. The children were ultimately adjudicated as CINC at a hearing in March 2013. The district court ordered that Kaw Valley Center (KVC) prepare a 6–month reintegration plan with each parent while the children remained in DCF custody.
In March 2013, a 6–month reintegration plan between KVC and Mother was filed with the court. Mother was ordered to maintain stable housing with working utilities and obtain employment or complete a GED program. Mother was ordered to use her KVC-scheduled visitation time and spend equal amounts of time with each child. Mother's visitation was to be supervised until the KVC case manager found it unnecessary. Mother was to take parenting classes and seek help from KVC if she felt overwhelmed with parenting. She was required to complete a Level II Psychological evaluation and follow any recommendations. Mother was ordered to provide verification of the completion of her tasks. Subsequently, Mother was ordered to pay $100 per month in child support. The reintegration plans were extended an additional 90 days following a September 2013 review hearing.
Elizabeth Mohney, Mother's first KVC caseworker, testified at the termination hearing she had worked with Mother when DCF first became involved with the family. The initial goal of the case plan was to establish paternity and to reintegrate the children with one of the parents. Mohney worked with Mother between November 2012 and April of 2013. She provided Mother with a copy of the original reintegration plan effective from March to September 2013, and reviewed it with her. During Mother's visits, Mohney was concerned with Mother's lack of knowledge of basic safety issues. Mohney had to repeatedly caution Mother on how to properly hold the children and on safety issues. During her time working with Mother, Mohney did not see Mother's skills extend beyond the very basic level. However, Mother did appropriately administer breathing treatments to the children. Mother never brought bottles, diapers, or other supplies to visits. Those were provided by the foster family. Mother's language toward the children was not always appropriate, she would say they were fat or had an evil face. Mohney noted that Mother was occasionally overwhelmed with the children during the 1–hour visitations. However, Mohney did see a bond developing between Mother and the children.
Mohney was concerned about Mother's living with Grandmother and it was recommended that Mother work toward obtaining independent housing; Mother had acted by registering for Section 8 housing. During this time, Mother had scheduled supervised visits with the children twice a week for an hour. She was transported to these visits by friends and family members. When Grandmother transported Mother to visitations, Grandmother did not interact with the children and usually fell asleep during the visits. Mother moved into subsidized housing in Kansas City, Kansas, in July 2013.
Mother's reintegration plan also contained educational or vocational goals. She had been directed to complete a GED or arrange for vocational training. Mother signed up for a diploma completion program but switched to a GED program, thus not making progress toward the educational requirement. Mother also was to take an age-appropriate parenting class. She had completed a parenting class but Mohney had referred her to an age-appropriate parenting class. Likewise, Mother was scheduled to complete a psychological examination before Mohney was transferred off the case. Mohney worked with Mother for 4 to 5 months on the reintegration plan.
Donald Jones, a clinical psychologist, testified he had performed a psychological evaluation of Mother. He also had observed Mother and the children together. Jones' evaluation was completed based upon examinations in April and June 2013. Mother was 21 years of age at the time of the assessment and showed some signs of long-term depression and having suffered some trauma in her life, including being removed from her home due to Grandmother's drug use. Mother tested as having average to below average intelligence. The test results also indicated Mother had some cognitive limits as to manipulating words or numbers to solve complicated problems. Jones noted that Mother was overweight and fatigued easily. She also faced psychosocial stressors of having her children in foster case. Jones was concerned about Mother living with Grandmother as they were not emotionally close, even though Grandmother's apartment was considered a safe environment. Also, Mother still exhibited some adolescent attitudes that raised concerns for a person who must care for young children.
Jones noted Mother was very nurturing to her children and interacted with them appropriately. She exhibited stress because of having no prior experience with children. Jones recommended Mother undergo psychotherapy to address her depression and that she work with Parents as Teachers regularly to learn day-to-day parenting skills. Jones believed she could learn parenting skills with on-going outside support. Mother would need continuing help if she moved out on her own and regained custody.
Ashley Franden, a KVC case manager, was assigned to the family from September 2013 to April 2014. Although Mother's case plan was originally set to be completed within 6 months, it was extended 90 days, through December 2013. A new permanency plan was adopted in October 2013. During Fraden's involvement, KVC purchased cribs and mattresses for the children. However, Mother did not pick up the items for several months, even after several reminders by Franden. By this time, Mother had obtained Section 8 housing. Franden did a walk-through noting the apartment was not completely baby-proofed and there was little food in the apartment. During a walk-through the next month, the home had improved. In January 2014, Franden was required to intervene with Mother's landlord to prevent Mother from being evicted because of neighbors' complaints of noise, foot traffic, and other problems.
In January 2014, the State filed a motion to terminate Mother's parental rights and to appoint a permanent custodian for D'N.B. and D'M.B. In the petition, cited the numerous problems Mother had in failing to complete many of her tasks despite KVC's efforts to assist her. The State alleged Mother appeared to lack the ability to understanding the importance of her assigned tasks. Finally, the State asserted that the children had been in DCF custody for over a year and that neither parent had demonstrated the ability to safely care for the children in a stable environment.
Although a motion to terminate had been filed, KVC continued to work with Mother. During Fraden's supervision, from January to April 2014, Mother did not complete many of her tasks. Mother was not employed during that period. Franden confirmed that Mother established a connection with a vocational rehabilitation center in January 2014 and was starting that process. This program helped her get to job interviews, but she had not been hired. During visitations, Mother did not use physical discipline, but Franden had to caution Mother about her tone of voice and choice of words in her interactions. During part of this period, visitation was changed to supervised visitation in Mother's home. Mother initially failed to provide the correct size of diapers that concern was corrected. (R. II, 120.) Mother did ultimately complete a psychological evaluation that recommendations for psychotherapy and cognitive therapy. (R. II, 122.) Mother did start such therapy, although she missed the first 3 to 4 months of appointments—September to November 2013—before she began to regularly attend. (R. II, 123.)
Franden further testified that Mother continued to have problems completing some of the reintegration requirements during the time of her oversight. Mother remained inconsistent by vacillating between a degree completion program and a GED program, and thus failed to obtain her high school diploma or a GED. (R. II, 123–26.) Franden reminded Mother several times that she needed to provide proof she was working toward completing her tasks. (R. II, 126.) Although Mother reported completing infant care parenting classes, she did not provide proof to KVC. (R. II, 120, 127.) Nor did Mother pay any child support in 2014. (R. II, 127.)
Mother had problems attending visitations and appointments because of transportation issues, especially during the 90–day extension period. (R. II, 130.) Mother often relied on family or friends to take her to visits or appointments, and KVC provided Mother bus passes from September of 2013 to June of 2014. KVC also provided Mother with gas cards as well. (R. II, 127–30, 243.) Mother never asked for assistance in determining bus schedules. (R. II, 227.) In addition, the bus system did not have a stop adjacent to the KVC offices and a walk was required from the nearest stop. (R. II, 242, 284–85.) Franden encouraged Mother to obtain a driver's license, but Mother had failed the driving test twice. (R. II, 129, 215.) There was testimony that Mother knew how to drive and had driven before; however, she had not been properly licensed to do so. (R. II, 245.)
Mother often cancelled visitations with the children because of transportation issues. (R. II, 139–42.) During some of the visitations no problems were noted about Mother's actions. (R. II, 131, 137, 144, 149–50.) However, during one visit, Mother picked the children up by the arm or shoulder and Mother failed to change the children's diapers. On other occasions, Mother had to be prompted repeatedly to check the children's diapers and instructed her that wet diapers needed to be changed, even if the child did not want to cooperate with the change. (R. II, 132–33, 135, 144, 146.) Mother need to be reminded how much water should be mixed with the formula and to interact with the children on the floor at their level. (R, II, 138, 145–46.) When the children switched to solid food, she would but too little food on the spoon, so the children would get impatient. Although Mother was shown an appropriate amount of food to feed the children, she did not change her actions because she was afraid the children would choke. (R. II, 146–47.) Parents as Teachers attended visitations monthly to help Mother understand where the children should be at developmentally. (R. II, 133–34, 136.)
Because visitations with Mother improved in late December and throughout January, KVC began in-home visitations between Mother and the children. The children were curious about the new environment. These visitations were 2 hours long, once a week. Mother enjoyed time with them, but she would check her phone more frequently and tended to watch them more rather than interact with them. (R. II, 193.) Although Mother had been advised in advance to have diapers, wipes, and snacks on hand, she did not have those available. (R. II, 194.) During an earlier walk through of the apartment, Franden noted the place as relatively empty. Mother had outlet coverings on the electrical outlets; but there were no locks on the cabinets. Still, Mother had placed all chemical items in higher cabinets. The only additional safeguards recommended by Franden were baby gates around the stairs. (R. II, 251–52.)
On the second in-home visit, Mother's sister provided diapers, but they were too small for the children. (R. II, 196.) During the third in-home visit, Franden again observed Mother observe and interact with the children; however, when D'M.B. put the plug from a lamp in her mouth, it was Franden who had to correct the child's behavior and instruct Mother of the danger. (R. II, 198.) Mother would verbally tell the children to stay away from the window blinds, but never got up to physically move them elsewhere. Several subsequent home visits took place without any issues. (R. II, 199.) In early March, an in-home visit with Mother, Franden had to instruct Mother to either turn off the television during the visitation or turn the channel to a children-friendly show. They took the children outside to play; however, Franden noticed broken glass scattered on both the sidewalk and in the grass. Mother had to be instructed to clean up the glass. (R. II, 200–01.) Other home visitations in March went well. (R. II, 201–02.) The children were hospitalized in late March for several days due to a virus causing respiratory problems. Mother visited the children while they were in the hospital. (R. II, 203, 232.)
In April 2013, the case plan shifted to adoption. According to KVC policy, Mother's visitations were moved back to KVC offices. (R. II, 204.) Mother missed at least one visitation due to transportation problems after this change. (R. II, 204–05.)
The district court held a termination hearing on August 14, 2014, and September 19, 2014 (R. II, generally; III, generally.) During the trial, social workers from DCF and KVC Behavioral Healthcare who worked with Mother and the children testified, as did a clinical psychologist who evaluated Mother. Their testimony is detailed above. (R. II, 78, 52–53, 100–01, 152–54.)
In addition to the evidence discussed previously, Franden summarized the reasons supporting termination during her testimony, despite her acknowledgment that the children had bonded with Mother and Mother clearly loved by children. (R. II, 255.) Franden testified that Mother did not adequately complete her reintegration plan during the 9 months it existed. Mother did not obtain her high school diploma or obtain a GED. She did not possess adequate financial resources to support a family budget. She did not obtain means for her own transportation or complete a formal transportation plan. She failed to provide proof she completed age-appropriate parenting classes and did not fully participate in individual psychotherapy due to missing a number of sessions. (R. II, 209.) In addition, Mother failed to complete a budget after Franden gave her the forms to do so several times. Mother missed approximately 12 visits with the children due to transportation problems. (R. II, 210–11.) Mother also did not seem to understand the seriousness of the proceeding, her obligations, and the special health issues of the children. (R. II, 212–16, 232–36, 272.) Mother's sister also advised Franden that they were expecting too much of Mother; the sister stated Mother functioned at the level or a 15 or 16–year–old person. (R. II, 219.)
Finally, Franden testified that it was her opinion, based on Mother's circumstances and efforts, as well as her dealing with other support providers and the children, that it was in the best interests of the children to terminate Mother's parental rights. Franden did not see evidence that Mother's circumstances were likely to change in the foreseeable future. (R. II, 211–12.)
During the September portion of the termination hearing, Mother testified on her own behalf. Mother testified that she was 20 when the children were born and was 22 at the time of the trial. (R. III, 30.) Mother testified that as required by the reintegration plan, she was receiving individual therapy and had seen a therapist every month for about 1 year. (R. III, 32–33.) Mom testified that she learned to deal with the situation of her children being in State custody and how to use breathing techniques when she is feeling overwhelmed and stressed. She learned that some things happen that may not be her fault, and she had to deal with those issues and approach others about them without being angry. (R. III, 36.) She learned that in dealing with issues, she should talk to her therapist or a family member about the problem. She believes she has better coping skills to deal with stress as compared to when the case started. (R. III, 37.) Mother testified that she gets upset because people believe she is unfit and that she cannot properly raise her children. She was upset because she keeps trying but believes she does not get credit for trying to do better. (R. III, 38.) Mother testified that she had attended two or three parenting classes including a baby parenting class where she learned how to properly hold, bathe, feed and talk with her children. (R. III, 38–39.) She also took a class in April 2014 about disciplining children recommended by her therapist and presented a certificate of completion. (R. III, 41–42.) Mother testified that the children were bonded with each other and with her. (R. III, 43.)
Mother testified that when the case first started, she was living with Grandmother in an apartment in Shawnee. At the time, Grandmother was a reliable source of transportation for Mother. (R. III, 44–45.) However, case workers told Mother to find her own independent living. Mother, with the assistance of her sister, found a place for herself and the children in Wyandotte County. She moved into the apartment in July 2013 and she still lived there at the time of the trial. She renewed the lease, which she thought extended her contract for a year. (R. III, 45–48.) She was receiving SSI benefits of $181 per month and social security death benefits from her father's account of $435 a month. When she had custody of the children, she received an additional benefit for each child because they were born prematurely. (R. III, 48–49.) She would be entitled to receive benefits for the children until they were 5 years old if they were reintegrated with her. (R. III, 49–50.)
Because of concerns about her not being employed, Mother began working with a job coach 4 or 5 months before the trial. Just before this second hearing, Mother had been offered a part-time job at $10.50 an hour. The job was in North Kansas City and she has bus passes to get there. Mother testified she also had access to a vehicle she recently bought, but she does not have a driver's license. The car, moreover, was not yet insured and was not yet been titled and registered in her name. (R. III, 50–54, 76–77.) Mother testified she found a day care place for the children when she went to work, but she did not ask how much the daycare would cost. (R. III, 96–97.)
Mother testified that she had attended a GED program up until the beginning of 2014; she stopped because it was stressful. Mother ultimately opted to look for employment instead. Mother admitted switching back and forth between the degree completion program and the GED program and finishing neither. (R. III, 56–57, 72–73.) Mother complained that after the motion to terminate was filed the KVC workers did not care anymore or inquire whether she was taking steps to change; however, Mother did not know when the motion to terminate was filed. On cross-examination, she testified that things changed 2 or 3 months before the trial. (R. III, 62, 68–69.)
Mother acknowledged receiving the 6–month reintegration plan shortly after her children were removed from her custody. (R. III, 79–80.) Mother agreed that she did not have her reintegration tasks completed by September 11, 2013, as originally required. (R. III, 83.) She believed her transportation issues were resolved due to her possession of an unregistered and uninsured vehicle. (R. III, 84 .) Mother admitted she missed “quite a few” of her therapy appointments, but that she had been attending them consistently in recent months. (R. III, 87.) Her infant parenting class was taken in April of 2014, long after the initial reintegration plan was established. (R. III, 88.) Mother agreed she missed some visitations, even though she was given a bus pass; however, she did not understand the The JO bus system could get her to Johnson County; she never looked up the various bus schedules for the Metro or the JO to learn how to connect to bus routes that could get her close to KVC's offices. (R. III, 101.)
At the conclusion of the trial, the court took the matter under advisement. (R. III, 126–27.) On March 12, 2015, the district court issued its ruling. The court summarized the series of events leading up to and following the CINC adjudication. (R. Ia, 144–46; V, 1–4.) The court cited the social workers' testimony that Mother frequently needed redirection from them in the proper way to hold the babies, for feeding them enough, and checking their diapers. The court cited Mother's inappropriate references about the children. (R. Ia, 147, 149.) The court found that although Mother obtained independent housing, the case manager had to intervene with the landlord to prevent Mother from getting evicted. (R. Ia, 148.) The court emphasized Mother's failure to take age-appropriate parenting classes or provide proof such classes were completed. (R. Ia, 149.)
The court found Mother failed to significantly comply with the reintegration plan. As examples, the court cited Mother's missed appointments for individual psychotherapy; her failure to complete her GED because she changed between two different programs; Mother's failure to provide proof that she completed tasks; Mother's failure to attend numerous visitations and other appointments because of transportation problems, even though KVC provided her with bus passes. (R. Ia, 149.) Based upon the record, the court found Mother was unfit due to her lack of progress toward reintegration. She never moved beyond monitored or supervised visitation. The court found KVC expended numerous resources to rehabilitation, which failed. (R. Ia, 151; V, 14.) The court further found that Mother's unfitness was unlikely to change in the immediate or foreseeable future. The court again emphasized that none of the professionals in the case were not comfortable in allowing Mother unsupervised visits and spent considerable time reminding Mother of basic caregiving skills and her obligations. Based on professional opinions, the court found that Mother could not assimilate information at a level appropriate for the safety and care of her custody. The children had been in DCF custody for nearly 2 years and Mother was still not close to being ready to parent them. The court found the children needed permanency and that it was in their best interests of the children for Mother's rights to be terminated. (R. Ia, 151–52; V, 14.) Accordingly, the court ordered that Mother's rights to D'N.B. and D'M.B. be terminated and granted DCF the authority to consent to the adoption of the children. (R. Ia, 152; V, 15.)
Father's rights to the children also were terminated in the March 2015 order and he filed a timely (but unverified) notice of appeal. (R. Ia, 149–50, 154.) No appeal was ever docketed on Father's behalf.
The court appointed Mother new counsel, who filed a timely verified notice of appeal and docketed the appeal in this court. (R. Ia, 157, 163–64.) The two cases involving the children were consolidated for purposes of appeal. (R. Ia, 166.)
ANALYSIS:
I. DID THE STATE PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDINGS THAT MOTHER WAS UNFIT AND THAT HER CIRCUMSTANCES WOULD BE UNLIKELY TO CHANGE IN THE FORESEEABLE FUTURE?
On appeal, Mother contends that State failed to prove any of the statutory factors cited in the court's opinion by clear and convincing evidence. (Appellant's Issues 1–5.) She makes a multifaceted attack on each of the statutory factors.
The Kansas Legislature has specified that the State must prove “by clear and convincing evidence” that a parent is unfit and that her unfitness was unlikely to change in the foreseeable future. K.S .A.2014 Supp. 38–2269(a). When evaluating whether the State has carried its burden of proof, the appellate court's standard of review requires more than the typical “substantial competent evidence.” Instead,
“[W]hen an appellate court reviews a trial court's determination that a child is in need of care, 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.” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
See also In re K.W., 45 Kan.App.2d 353, 354, 246 P.3d 1021 (2011) (applying standard of review). In making this determination, the appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 705.
The termination of parental rights statute lists nonexclusive factors the court must consider in making a determination of unfitness. K.S.A.2014 Supp. 38–2269(b). The court must also consider a separate list of nonexclusive factors when a children—such as in this case—are not in the physical custody of the parent. K.S.A.2014 Supp. 38–2269(c). Any one of the factors in K.S.A.2014 Supp. 38–2269(b) or (c) may, but does not necessarily, establish grounds for termination of parental rights. K.S.A.2014 Supp. 38–2269(f). Upon making a finding of unfitness of the parent, “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.2014 Supp. 38–2269(g)(1). In making such a determination, the court shall give primary consideration to the physical, mental, and emotional needs of the child. K.S.A.2014 Supp. 38–2269(g)(1).
In her brief, Mother first challenges the definition of “reasonable efforts” as contained in K.S.A.2015 Supp. 38–2269(b)(7). She contends this requires interpretation of the statute and thus is subject to unlimited review. (Appellant's Brief, 15.) See Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015) (interpretation of a statute is a question of law over which appellate courts have unlimited review). Mother contends that the Revised CINC Act's policies of preserving family relationships requires DCF and its contractors to provide more services to preserve the family and that these policies should guide what constitutes reasonable efforts by social service agencies. (Appellant's Brief, 15–17.)
Mother argues, for the first time on appeal, that multiple elements of the reintegration plan developed by KVC and approved by the court, in fact, undermined any chance that Mother could be reintegrated with her children. (Appellant's Brief, 17.) However, nowhere in the record did Mother or her trial attorney question or challenge the provisions of the reintegration plan. Instead, Mother's position throughout the proceeding appeared to be that she substantially complied with the plan and had made great strides toward completing it. Generally, new issues will not be considered for the first time on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011).
On appeal, Mother argues that the plan's requirement that she establish a residence independent from Grandmother was unreasonable because of the safety of Grandmother's home and the economic burden of living independently would impose on Mother who was only 20 years old and with premature children. However, there was evidence that Grandmother provided little to no emotional support to Mother and that the Grandmother's prior drug use resulted in Mother being out of the home for a year as a young teenager. In addition, Grandmother provided no assistance with the children and developed no relationship with the children, even during visitations she attended with Mother. Moreover, despite the fragility of the infants, Grandmother kept reducing the temperature in the apartment so it was too cool for the children. Mother was successful in finding subsidized housing where the rent was only $65 per month and she was able to maintain her utilities with her income.
Next, Mother argues that KVC's independent housing requirement imposed the extra burden of transportation issues that caused Mother to miss a number of visitations. (Appellant's Brief, 19.) Mother asks this court to take judicial notice of information not provided to the district court, namely that locations of bus stops and the distance between the nearest bus stop and KVC's offices. (Appellant's Brief, 20–21.) As stated, this evidence was not presented to the district court. Moreover, Mother's testimony does not support the claim that the distance between the bus stop and the KVC offices had anything to do with her missed visits. Instead, Mother testified that she did not understand that the bus passes would be able to get her to Johnson County from her residence in Kansas City, Kansas. She did not understand the routes and made no effort to figure out the routes of the buses to Johnson County. Thus, Mother's request that this court take judicial notice of the bus routes should be rejected.
Finally, Mother challenges the reintegration plan's requirement that she obtain a high school diploma or GED as not being rationally related to her specific needs to raise and support her children. (Appellant's Brief, 28.) In light of Mother's failure to complete a budget, however, it was unclear whether she would be able to support herself and the children based on her SSI benefits and her father's death benefits. The financial issues remained, even in subsidized housing and even if extra benefits for the children were made available. This is especially true since the father's death benefits were reducing and the children's benefits would expire in several more years.
Even if the GED requirement was “unnecessary,” Mother was given the option of obtaining employment. After vacillating between GED/degree completion programs for over 9 months, Mother finally started to see a job coach after the only 4 to 5 months before the trial, and several months after the motion to terminate was filed. Mother did not obtain employment until the September 2014, nearly 2 years after the CINC proceeding started. This delay either speaks to the importance of the GED for purposes of obtaining employment or, alternatively, Mother's serious lack of effort. Moreover, Mother's failure to determine the cost of daycare she was planning to use while she was working established an inability to plan for the future.
Mother also contests the court's finding that she failed to adjust her circumstances or conditions to meet the needs of her children as set forth in K.S.A.2014 Supp. 382269(b)(8). (Appellant's Brief, 30–41.) While Mother spends some time belittling the testimony of the initial caseworker, it should be noted that caseworker Seiker testified to a number of concerns that were included in the CINC petition. Significantly, Mother filed a no contest statement in response to the CINC petition. (R. Ia, 61.) Thus, Mother's arguments that none of the evidence relating to Mother's actions prior to the filing of the CINC petition could form a basis for the finding of unfitness is untenable. (Appellant's Brief, 32.) Mother did not appeal from the CINC finding and that information is certainly relevant to determining Mother's fitness and whether she adjusted her circumstances to meet the needs of her children.
Mother goes further to discount caseworkers' testimony because the children's physical development had rendered the workers' observations moot. However, there was consistency between the caseworkers' testimony throughout the 2 years of the case: at whatever stage of development the children were at, Mother needed to be prompted repeatedly to take appropriate action for the children's care, whether it was checking their diaper, making sure they were in safe surroundings, redirecting them from unsafe behaviors, and ensuring they had adequate supplies and food. While the caseworkers noted some improvements, those improvements never reached the levels where Mother was allowed unsupervised visitation.
The court also found that Mother failed to maintain regular visitation with the children during their out-of-home placement as provided under K.S.A.2014 Supp. 38–2269(c)(2). Mother reiterates her argument that transportation issues that caused Mother to miss visitations were created by the reintegration plan's various requirements and her unsubstantiated assertions that the bus pass and gas cards were inadequate. (Appellant's Brief, 44–45.) However, the record is clear that Mother had no reliable means of transportation and was dependent totally on others to get her to visitations. Moreover, the missed visits strained Mother's ability early on to bond with the children because of the inconsistency with the visits. While the visitations became more consistent, especially when the children were brought to Mother's home, it was still Mother's responsibility to make use of the bus passes and gas cards provided to her to meet the visitation schedule.
Finally, Mother challenges both the court's determination that she failed to comply with a reasonable reintegration plan and failed to provide financial support for the children while they were in out-of-home placement. (Appellant's Brief, 47–56.) While Mother complains it was KVC's fault that she did not complete the reintegration plan, she never challenged the plan's requirements while before the district court. It was not until the September 2014 termination hearing that Mother provided proof that she had completed age-appropriate parenting classes or that she had obtain a part-time job. This was 22 months after the CINC case was initiated and 18 months after the first case plan was put in place. Mother's ability to care for the children without supervision was never achieved. While the original psychological evaluator opined that that Mother was capable of learning parenting skills, that opinion was made in June 2013; despite nearly 6 months of individual therapy, 9 months of visitations and KVC support, Mother still had not shown adequate parenting skills to warrant unsupervised visitation. Despite several months of therapy, Mother still reflected immature judgment regarding a number of issues which negatively reflected on her ability to manage her own life, not to mention the lives of young children.
Mother also challenges the child support order issued in a separate proceeding as being unreasonable due to her limited income. In the initial CINC proceeding, Mother was ordered to pay $100 per month in child support. (R. Ia, 98–100.) Mother argues extensively about a modified child support order entered by default ordering Mother to pay $293 per month in child support based on an assumption Mother could work 40 hours per week at a minimum wage job. (Appellant's Brief, 53.) Again, this issue was not raised in the district court. It is clear, however, the Mother made no payments, even minimum partial payments of support. This lack of at least minimal payments, during a time Mother contended she could financially support the children if they were in the home appears inconsistent.
Even if Mother lacked the ability to pay support, all the other bases the court relied upon in terminating Mother's rights were supported by clear and convincing evidence. Although Mother clearly loved her children and made efforts to comply with the reintegration plan, her progress during the 2 years the case was pending was minimal, especially in the areas of showing she possessed the ability and judgment adequate to care for the children.
The children had been in DCF custody for all but a month of their lives. They were bonded to both Mother and their foster parents. The record reflected that Mother's cognitive ability to adjust her circumstances was limited and that she did not comprehend the importance of the tasks she was assigned to complete. In light of her limited accomplishments during the 2 years the case was pending, there was clear and convincing evidence that Mother's condition and circumstances would not change in the foreseeable future. Most importantly, the district court and this court must consider the “ ‘foreseeable future ... from the child's perspective, not the parent['s], as time perception of a child differs from that of an adult.’ [Citation omitted.]” In re R.S., 50 Kan.App.2d 1105, 1117 336 P.3d 903 (2014). [Mandate issued.]
II. DID THE STATE PROVE BY CLEAR AND CONVICING EVIDENCE THAT TERMINATION OF MOTHER'S RIGHTS WERE IN THE BEST INTERESTS OF THE CHILDREN?
In her final issue, Mother contends the district court abused its discretion in finding that the termination of her parental rights was in the best interests of the children. Mother argues that the best interests determination is essential to the entry of an order terminating parental rights. K.S.A.2014 Supp. 38–2269(g)(1). (Appellant's Brief, 57–60.)
This court has recognized that the district court is in the best position to decide what is in the best interests of the children before it in a CINC case. As a result, the district court's decision on matters of the best interests determination will not be reversed on appeal in the absence of an abuse of judicial discretion. In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255 (2010). A district court abuses its discretion only when it bases its decision on an error of fact or law or when its decision is so unreasonable that no one would agree with it. In re M.H., 50 Kan.App.2d 1162, 1175, 337 P.3d 711 (2014).
Mother argues that her bond with the children and the strength of their relationship mitigated against a best interests finding. (Appellant's Brief, 58.) However, the record reflect that the children also bonded with their foster parents, that the children were somewhat medically fragile due to their premature births, and that consistency and permanency were important. Although Mother was close to family members other than Grandmother who provided her some assistance, there simply was not a basis to conclude the district court abused its discretion in finding that continuing the uncertainty of the children's future with Mother after 2 years of effort was in the children's best interest.
RECOMMENDATION:
Affirm.