Opinion
No. 108,917.
2013-07-19
In the Interest of D.R. (D.O.B.02–01–2008), D.R. Jr. (D.O.B.05–02–2003), K.R. (D.O.B.04–20–2009), and K.R. (D.O.B.11–15–2010).
Appeal from Johnson District Court; Kathleen Sloan, Judge. Marc H. Berry, of Olathe Legal Clinic, LLC, of Olathe, for appellant mother. J. Patrick Flanigan, of Law Office of J. Patrick Flanigan, of Overland Park, for appellant father.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
Marc H. Berry, of Olathe Legal Clinic, LLC, of Olathe, for appellant mother. J. Patrick Flanigan, of Law Office of J. Patrick Flanigan, of Overland Park, for appellant father.
Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.:
S.S. (Mother) and D.R. (Father) appeal the termination of their parental rights to four of their children-Dwayne (born 2003), Doniven (born 2008), Kelvon (born 2009), and Kareena (born 2010). Parental rights may be terminated only in circumstances set out by statute and only when clear and convincing evidence supports termination. Mother and Father contend on appeal that the evidence in this case wasn't sufficient for the district court to terminate their parental rights.
But termination is authorized when one of several statutory factors showing unfitness to parent—like physical or emotional abuse of a child, or the failure of reasonable efforts by child-service agencies to help the family stay together—is present, that condition of unfitness is unlikely to change in the foreseeable future, and the court determines that it's in the best interests of the children to terminate the parent's parental rights. See K.S.A.2012 Supp. 38–2269(a), (b), (f), and (g)(1).
Here, the district court took evidence over 6 days after the three oldest children had been in out-of-home placements for more than 2 years and the youngest child had been in an out-of-home placement her entire life (14 months, at the start of the district-court trial). The district court not only heard the evidence but also had a full transcript prepared and reviewed it. The district court also recognized the “very serious” task before it, having been asked “to find a parent unfit and unlikely to change in the foreseeable future.” The district court carefully reviewed the evidence and issued a 35–page written opinion; it concluded that six of the statutory factors showing unfitness were present, that these were unlikely to change in the foreseeable future, and that it was in the children's best interests to terminate Mother's and Father's parental rights.
We have carefully reviewed the appellate briefs, the trial transcript, and the district court's extensive opinion. We have concluded that the district court's ruling may be affirmed in a summary opinion under Supreme Court Rule 7.042(b)(4), (5), and (6) (2012 Kan. Ct. R. Annot. 63): The district court's factual findings are supported by clear and convincing evidence, its opinion adequately explains its ruling, and the district court has not abused its discretion. Because we too recognize that the termination of parental rights is a very serious matter, we will briefly address some of the key findings made by the district court and why those findings are supported by clear and convincing evidence.
Finding of Unfitness
As we have noted, the district court found that six statutory unfitness factors were present; finding any one of those factors may be sufficient to establish grounds for termination based on unfitness. See K.S.A.2012 Supp. 38–2269(f). We will focus on two of the factors—the failure to reintegrate the family despite reasonable efforts by public or private agencies, K.S.A.2012 Supp. 38–2269(b)(7), and the lack of effort by the parents to adjust their circumstances to meet the children's needs, K.S.A.2012 Supp. 38–2269(b)(8). Preliminarily, we note that to be clear and convincing, the evidence must be sufficient to make the truth of the facts “highly probable.” In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3, 187 P.3d 594 (2008). On appellate review, since the district court, which heard the evidence directly, found the facts in favor of the State, we must look at the evidence in the light most favorable to the State. We therefore must determine whether a rational fact-finder could have found sufficient facts highly probable so as to justify the termination of parental rights. See In re A.L.C., No. 107,388, 2012 WL 3172538, at *3 (Kan.App.2012) (unpublished opinion), rev. denied 295 Kan. –––– (Oct. 11, 2012).
First, the district court found that there had been a failure to reintegrate the family despite reasonable efforts from the various entities that were brought into this case by the Department of Social and Rehabilitation Services, which had custody of the children during the child-in-need-of-care proceeding. Mother and Father emphasize that they made sufficient progress that SRS and its contractors attempted a planned 29–day trial placement in which the three boys would stay with Mother and Father and the younger daughter would spend some nights there. But even with social workers, therapists, and others in the home to help out nearly every day during that time, the children were removed after about 2 weeks because of ongoing concerns about Mother's parenting skills. Those concerns were appropriate: Mother had great difficulty getting the children to behave. Dwayne showed angry outbursts, and the younger boys were beginning to mimic his behaviors. Mother's response fluctuated between threatening to call police and bribing Dwayne with treats or toys. In addition, Dwayne was allowed to play outside unsupervised even though he repeatedly strayed from the areas he was supposed to be in. Only a few days before the extended in-home visit, Mother had tied Dwayne to a chair when she could not control his behavior. Clear and convincing evidence supported the district court's conclusion that reintegration had failed despite reasonable efforts by the SRS and its contractors.
Second, the district court found that Mother and Father had failed to adjust their circumstances so that they could properly care for the children. Here, the parents did take some significant steps—they completed parenting classes, they found stable housing, and Father obtained steady employment. But other problems remained.
Mother had a long history of drug use and abuse, including several drug charges and convictions. Mother frequently appeared sleepy during therapy sessions, apparently because of the use—or abuse—of prescription drugs, and a May 2011 planned visitation was canceled because Mother was overusing her prescriptions and getting high while doing so. Mother continued to expose the children to cigarette smoke even though two of the children were allergic to it and the reintegration plan called for her not to smoke around them. Mother had consistent problems in supervising the children—even during therapy sessions, she allowed Dwayne to wander away without supervision. Once, while he was at her home, he wandered away to a gas station down the street and brought back a fence post. On other occasions, he ended up in a nearby vacant apartment and in the apartment complex's laundry room. Dwayne reported to adults that he had left the apartment while Mother slept. Although Mother took parenting classes, she never was able to incorporate suggested techniques for controlling Dwayne's temper tantrums. Instead, she once tied him to a chair and another time threatened to call police or to send him to the mental hospital like an older sibling (not involved in this appeal). Mother even faked making a telephone call to police asking them to take Dwayne away; the boy put on his coat and said good-bye to his brothers because he believed he would be taken away.
Father's parenting skills were significantly better than Mother's, and social workers suggested to him that if he changed his employment (which was nearly an hour away from the apartment) so that he could be the primary caretaker, he could keep the children. But Father made minimal attempts to change this situation over the extended time the case was pending. The district court found that he had continued to leave the children under the primary care of Mother, despite her inability to care for them appropriately, and that he had made no progress toward becoming the primary caregiver while the case had proceeded.
The district court recounted many other facts supporting its conclusion that Mother and Father had failed to adjust their circumstances so as to be able to care properly for the children. They were consistently late or failed to show up to meetings with resource parents or others facilitating visitations. They failed to return the children's possessions—provided by the resource parents—when the children returned to the resource parents' home. There was clear and convincing evidence to support the district court's conclusion that Mother and Father had failed to adjust their circumstances to meet the children's needs.
Finding That Condition Is Unlikely to Change in the Foreseeable Future
The same facts we have just discussed also support the district court's conclusion that these conditions were unlikely to change in the foreseeable future. Of course, we must look at the time frame defined by “foreseeable future” from the children's perspective, as a child's time perception differs from an adult's. See In re S.D., 41 Kan.App.2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009); In re D.T., 30 Kan.App.2d 1172, 1174–75, 56 P.3d 840 (2002).
Despite some improvements by the parents, the evidence supports the district court's finding that Mother was still unable to appropriately parent the children and Father was unwilling to accept more responsibility for their parenting. Mother was overwhelmed with attempting to parent Dwayne, Doniven, and Kelvon-and this was with Kareena present only periodically and with social workers, therapists, and others regularly present to help. Father obtained employment but was rarely available to help parent the children.
By the time trial to the district court began, the boys had been in out-of-home placements for more than 2 years; Kareena had been in out-of-home placements her entire life, 14 months; and Doniven and Kelvon had been in out-of-home placements for more than half of their lives. Given the time that had gone by and the substantial adjustments Mother and Father still needed to make for the children to be returned to them, clear and convincing evidence supported the district court's conclusion that the conditions leading to the court's unfitness finding were unlikely to change in the foreseeable future.
Finding That Termination of Parental Rights Is in the Children's Best Interests
Once the district court makes a finding of unfitness, it still must consider whether terminating the parent's rights is in the child's best interest. K.S.A.2012 Supp. 38–2269(g)(1). The district court is in the best position to make that determination, and we may not overturn that decision without finding an abuse of discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002); In re K.P., 44 Kan.App.2d 316, 318, 235 P.3d 1255,rev. denied 291 Kan. 911 (2010). The district court abuses its discretion if its decision is one that no reasonable person could accept or if its decision is based on a factual or legal error. See Critchfleld Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011).
We find no abuse of discretion here. The district court noted evidence that living conditions at Mother and Father's residence left all three of the boys feeling “insecure, scared, and upset” to the point that they had emotional outbursts and even developmental delays. And Kareena had never lived with her parents, who saw her only a few times while she was hospitalized for 3 months after her birth due to drug-withdrawal symptoms (based on Mother's drug use while carrying Kareena). Given the time and effort spent in trying to keep this family together, a reasonable person could agree with the district court's conclusion that it was in the children's best interests to move on and provide them stability with an adoption and a permanent home.
We recognize, as did the district court, that this is an important case. We also recognize, as did the district court, that these parents love their children and that these parents took some positive steps in an attempt to get their children back. But even after the efforts that were made, the problems that remained were serious ones, justifying the district court's unfitness findings and its termination-of-parental-rights order.
We therefore affirm the district court's judgment under Supreme Court Rule 7.042(b)(4), (5), and (6).