Opinion
No. 107,968.
2013-03-8
In the Interest of D.C.G.
Appeal from Leavenworth District Court; Michael Gibbens, Judge. Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant. James P. Colgan, of Colgan Law Firm, LLC, of Kansas City, for appellee.
Appeal from Leavenworth District Court; Michael Gibbens, Judge.
Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant. James P. Colgan, of Colgan Law Firm, LLC, of Kansas City, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mother of D.C.G., a 9–year–old child at the time of the proceedings below, appeals the district court's finding of her unfitness as a parent and its appointment of paternal grandmother as the permanent custodian.
In late 2009, paternal grandmother filed a child in need of care (CINC) petition regarding D.C.G. The district court appointed a guardian ad litem (GAL) and attorneys for mother and father. Maternal grandmother also filed an appearance in the case. The court awarded temporary custody of D.C.G. to an aunt because both mother and father were incarcerated.
The district court subsequently deemed D.C.G. to be a child in need of care, granted visitation to mother and both grandmothers, and ordered a home study for paternal grandmother, a New Mexico resident, through the Interstate Compact on the Placement of Children (ICPC).
In late February 2010, the district court continued aunt's custody of D.C.G. and approved a reintegration plan for mother. For D.CG. to be reintegrated, mother had to (1) obtain stable employment within 30 days or provide proof of application; (2) complete a parenting class within 30 days; (3) arrange to complete a parenting assessment within 30 days and develop a payment plan; (4) schedule biweekly parenting time; (5) develop a budget; (6) obtain safe and stable housing within 30 days of paying for parenting assessment; and (7) remain current on rent and utility payments. Two months later, the court terminated maternal grandmother's visitation rights due to her failure to exercise them.
Both grandmothers filed competing motions for permanent custody in May 2010. Paternal grandmother's motion included a detailed family contact plan. These filings prompted the district court to appoint a special advocate (CASA) for D.CG.
In late August 2010, after three evidentiary hearings, the district court made the following factual findings: (1) mother had completed a parenting assessment and developed a budget; (2) mother had “not exercised much of the visitation she ha[d] been allotted with [D.CG.];” (3) mother had obtained employment in St. Joseph, Missouri, after losing her first job; (4) a social worker testified that Mother had “made minimal progress towards reintegration;” (5) the parenting assessment found that mother had the basic ability to parent, she was overwhelmed and could not adequately parent all six of her children at once, her children should be reintegrated one at a time, an adult relative should live with her to help her parent, and a social service agency should supervise and provide services to her; (6) the licensed psychologist who performed the parenting assessment concluded that mother “was not unfit to parent [D.CG.];” and (7) paternal grandmother had been approved through ICPC to have D.C.G. live with her in New Mexico.
The district court reached three relevant conclusions based on its findings: Mother had made “some progress” on her reintegration plan, but had not had “a sufficient amount of time” to accomplish her goals; she had not exercised enough visitation with D.C.G., likely due to her financial situation, but there was no room for excuses now that she was employed; and she had failed to pay for D.C .G.'s care and maintenance, but had lacked the financial resources to do so given her unemployment and other children. The court refused to declare mother unfit, left D.C.G. in aunt's custody, and allowed mother to pursue reintegration.
In the latter half of 2010, the district court ordered mother to pay $200 per month in child support and obtain a Missouri home study through ICPC. Father filed a petition consenting to the appointment of paternal grandmother as D.C.G.'s permanent custodian.
On March 21, 2011, after two more evidentiary hearings, the district court made the following factual findings: (1) mother's progress towards completion of her reintegration plan had “stagnated;” (2) paternal grandmother's ICPC home study had been properly updated; (3) mother's ICPC application had been denied because she had failed to make the necessary appointment; and (4) mother had been evicted from her residence in St. Joseph and although she had an appointment to apply for public housing, the waiting list was over 1 year long.
The district court reached two relevant conclusions based on its findings: Mother had “failed to carry out a reasonable plan approved by the court to integrate [D.C.G.] into the parental home” and had “failed to pay a reasonable portion of the cost of substitute physical care and maintenance for the child.” This time, the court declared Mother to be unfit and found that the appointment of paternal grandmother as the permanent custodian was in the best interests of D.C.G.
A few months later, paternal grandmother filed a proposed visitation plan, which provided for regular phone and/or Skype contact between D.C.G. and his siblings, mother, father, and maternal grandmother; annual summer and holiday visits; and the opportunity for electronic communication with D.C.G.
Mother timely appeals.
Mother first argues the district court should not have declared her an unfit parent because her “dire financial straits” had prevented her from paying for D.C.G.'s care and she had been “making progress and moving forward” with her reintegration plan.
To review a finding of parental unfitness, an appellate court must determine whether, after viewing all of the evidence in the light most favorable to the State, a rational factfinder could have found the determination to be highly probable, that is, by clear and convincing evidence. See In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008); In re K.P., 44 Kan.App.2d 316, 318, 235 P.3d 1255 (2010).
“When the child has been adjudicated to be a child in need of care, the court may ... appoint a permanent custodian 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.2009 Supp. 38–2269(a).
“[W]hen a child is not in the physical custody of a parent, the court shall consider, but is not limited to ... failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home ... [and] failure to pay a reasonable portion of the cost of substitute physical care and maintenance based on ability to pay.” K.S.A.2009 Supp. 38–2269(c)(3), (4).
Here, the district court found mother unfit based on her failure to carry out her reintegration plan and her failure to pay a reasonable portion of the cost of D.C.G.'s care. A review of the evidence revealed a host of incidents that influenced the court's decision. Among these were (1) mother had been evicted from her home; (2) mother had missed her last appointment with the St. Joseph Housing Authority and the waiting list for assistance was over 1 year long; (3) mother had an unverified gross monthly income of $1,257; (4) mother owed $1,200 in past-due rent and $1,900 for driving while suspended; (5) aunt had not received any financial support from mother for D.C.G.; (6) mother provided an inaccurate budget to GAL at a previous hearing; (7) mother's oldest child was living with her; (8) mother refused to provide personal information necessary to process the child support order and failed to complete her ICPC home study; (9) mother had not contacted aunt regarding D.C .G.'s health appointments, schooling, or athletics; and (10) mother contacted paternal grandmother only once during D.C.G.'s 8–week New Mexico visit.
The record adequately supports the district court's decision regarding unfitness. The court found that two statutory factors of parental unfitness had been met, and the evidence clearly supports these conclusions. Mother failed to carry out her reintegration plan by failing to secure stable housing, submitting an inaccurate budget, and housing her oldest child before D.C.G.'s reintegration. She also failed to pay any portion of the cost of D.C.G.'s care. We must presume the court found that Mother had the ability to pay a reasonable amount towards D.C.G.'s care. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) (appellate court must presume district court found ail facts necessary to support its judgment). Furthermore, Mother failed to comply with court orders to pay child support and obtain a home study. Viewing the evidence in the light most favorable to the State, we are convinced that a rational factfinder could have found it highly probable by clear and convincing evidence that mother was legally unfit to be a parent.
Therefore, the district court did not err by declaring mother to be an unfit parent.
Mother also argues that the district court should have appointed maternal grandmother to be D.C.G.'s permanent custodian instead of paternal grandmother.
The district court is in the best position to make findings regarding the best interests of the child, and its judgment will not be disturbed in the absence of an abuse of judicial discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the court. In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002); In re K.P., 44 Kan.App.2d at 318.
“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.” K.S.A.2009 Supp. 38–2269(g)(1). “If the court does not terminate parental rights, the court may authorize appointment of a permanent custodian .” K.S.A.2009 Supp. 38–2269(g)(3). “In making an order appointing a permanent custodian the court shall give preference, to the extent that the court finds it in the child's best interests, to first appointing a permanent custodian who is a relative of the child.” K.S.A.2009 Supp. 38–2272(j).
Here, the district court appointed paternal grandmother to be D.C .G.'s permanent custodian based on the ICPC report from New Mexico. A review of the evidence revealed many events that affected the court's decision. Among these were (1) maternal grandmother's prior custody of D.C.G. was terminated because she failed to provide a Georgia court with updated paperwork; (2) maternal grandmother's visitation rights were terminated briefly in mid–2010 due to her failure to exercise them; (3) paternal grandmother had provided aunt with continuous financial support for D.C.G. totaling approximately $6,500; (4) paternal grandmother had ICPC approval; (5) paternal grandmother had held the same management-level job for 15 years; (6) maternal grandmother had held her current hourly-wage job for less than 1 year; (7) paternal grandmother had exercised regular visitation with D.C.G. in Kansas and had taken him to New Mexico for 8 weeks during the summer; (8) maternal grandmother contacted paternal grandmother only once during D.C.G.'s 8–week New Mexico visit; and (9) D.C.G. had said he did not want to attend visitation with maternal grandmother and he was returned twice without having eaten supper.
The record adequately supports the district court's decision regarding the permanent custodianship. Paternal grandmother contributed $6,500 towards D.C.G.'s care, had a stable job, completed a home study, and exercised regular visitation with D.C.G. Moreover, paternal grandmother planned to allow D.C.G. to have regular contact with his siblings and parents. We cannot conclude that no reasonable person would agree with the court's findings as to the best interests of D.C.G.
Therefore, the district court did not err by appointing paternal grandmother as permanent custodian.
Affirmed.