Opinion
No. 106,898.
2012-07-13
In the Interest of E.H.
Appeal from Wyandotte District Court; Daniel Cahill, Judge. Angela J. Lawson, of Kansas City, for appellants natural mother and natural father. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.
Angela J. Lawson, of Kansas City, for appellants natural mother and natural father. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The natural parents (Mother and Father) of E.H. appeal the termination of their parental rights. The record on appeal shows that the district court's decision was supported by clear and convincing evidence, and it is affirmed.
In September 2010, the State filed a petition seeking to have E.H. declared to be a child in need of care (CINC). The petition was filed 2 days after E.H.'s birth because Mother tested positive for cocaine and amphetamine. The petition noted that Mother's parental rights to four other children had been terminated in 2008. Mother denied using cocaine. When the petition was filed, Father was homeless, although he indicated that he planned to move back in with Mother.
The district court found that circumstances warranted the immediate removal of E.H. from the parents' custody. In October 2010, the State filed a motion in which it sought the termination of both parents' parental rights. In the motion, the State indicated that it expected the parents to stipulate that E.H. was a CINC.
The parents did stipulate to the CINC petition in January 2011. At that time, the district court entered orders, which were designed to aid reintegration efforts. These orders included maintaining stable housing and income, contacting the court services officer (CSO) once each month, submitting timely and negative urine tests (UAs), and having Father take care of an outstanding arrest warrant. The orders were extended in February 2011, when the district court found that reintegration remained a viable alternative.
The parents failed to comply with the plan for reintegration, and in May 2011 the State filed a second motion to terminate parental rights. In the motion, the State alleged that Mother and Father's housing was unstable because they could not afford the rent. The State also detailed the parents' histories of submitting positive UAs for methamphe-tamine, including ones as recent as April 2011.
The district court held a termination hearing in August 2011, after which the district court determined by clear and convincing evidence that both parents were unfit and that their unfitness was unlikely to change in the foreseeable future. The court also determined that it would be in E.H.'s best interests to terminate both parents' parental rights. They appeal.
On appeal, the parents claim that there was testimony at the termination hearing to show they both had bonded with E.H. and were making progress towards reintegration. The parents contend that the evidence as a whole showed that they were working on their tasks and that the district court's decision was erroneous.
The district court is required to make three findings before terminating parental rights. The court must find by clear and convincing evidence that the parent is unfit, the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future, and that termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1).
When this court reviews a district court's termination of parental rights, we consider “whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that [the parent's rights should be terminated].” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In B.D.-Y., the court explained that “clear and convincing evidence” requires the factfinder to believe “that the truth of the facts asserted is highly probable.” 286 Kan. at 697.
The agreed upon factual statement shows that the district court heard testimony from a toxicologist, who verified that both parents submitted UAs which were positive for methamphetamine on April 27, 2011.
Mother's assessment at the Regional Alcohol and Drug Assessment Center (RADAC) resulted in a recommendation that she complete six drug treatment sessions. Mother completed those sessions in October 2010. Despite completing that treatment, she had a positive UA in April 2011. Father's evaluation was based on his own self-reporting; no further treatment was recommended. Because of the positive UAs, both parents were asked to perform a second RADAC assessment. They missed two appointments before finally completing the second assessment in May 2011. However, at that assessment, they denied any drug use. The evaluator recommended further drug treatment because of the parents' behaviors. Both parents did submit negative UAs in July 2011.
The district court apparently heard extensive testimony from the CSO, Cristen Ryman. Ryman testified that the parents had maintained housing during the pendency of the case. However, the rent where the parents were living apparently exceeded their budget. Mother was trying to find subsidized housing. Mother mentioned concerns about not paying her rent when she attended a mental health appointment in June 2011. The parents' case manager testified they were also in violation of their lease because they had a pet that had not been approved by their landlord. Father disputed that claim.
Mother's only income is $674 per month in disability benefits. Father was unemployed during the entire reintegration period, save for a brief period when he loaded phone books onto a truck. There were concerns about how they would meet their expenses in the following month because they relied on financial assistance from the paternal grandmother, and apparently she was unable to help any longer.
The parents did complete 12 hours of parenting classes. However, despite that class completion, there were still lingering concerns that Mother would be unable to independently parent E.H. Mother has been diagnosed as having borderline intellectual functioning. It was recommended that Mother obtain services designed to help adults with developmental disabilities. It is unclear whether Mother even sought out those services. Ryman testified that Mother has poor coping mechanisms. She was also described as very dependent.
The parents' visits with E.H. were supervised until January 2011, when there was an attempt to hold extended visits in the parents' home. Staff at KVC Health Systems, Inc., which provides contract services for the state of Kansas, were concerned at the start of the visits because the parents were still in their pajamas, and they mainly stayed in bed and did not want E.H. to play. Dianna Stenzel, a former case manager, testified that there were often concerns with the parents' behavior during visits. Mother also apparently had a habit of leaving messages late at night in which she sounded very anxious or hysterical.
The parents did complete psychosocial assessments. Those assessments showed that both parents had long histories of drug abuse. However, Mother also told her evaluator that she had not used drugs since 2008. That statement was plainly not credible, as Mother tested positive for cocaine at E.H.'s birth. The psychosocial evaluation resulted in recommendations that the parents obtain stable housing and income, receive drug treatment, and attend all of E.H.'s medical appointments.
E.H. apparently had medical issues related to gastrointestinal problems. The parents were given a safety plan, which included a list of acceptable things to feed her; E.H.'s physician had not yet approved the introduction of solid food, and E.H.'s primary nutrition was a special soy formula. Despite that fact, the parents at different times fed E.H. applesauce and gave her grape juice. In February 2011, Mother gave E.H. Tylenol without checking to see if it was time for E.H. to receive another dose. The parents apparently attended some of E.H.'s medical appointments, although they were described as disengaged and distracted during the appointments. They failed to attend E.H.'s 6–month checkup.
In April 2011, the parents were arguing at the start of a 3–hour, unsupervised visit. While the case manager was driving back to her office, Mother called and asked her to come pick up E.H. Father told Stenzel that Mother called to have the child taken away in order to “get back” at Father. Stenzel believed it was inappropriate to involve her and E.H. in their argument. Mother disputed that assertion and claimed it was a misunderstanding. The child was picked up at the home, and visits were returned to supervised status. Because of the parents' positive UAs, there was never any more progress made toward unsupervised visits.
Both parents testified at the termination hearing that they were clean and sober. However, they both had tested positive for methamphetamine just 4 months prior to that hearing. Moreover, Mother had a history of claiming to be drug-free, even when the UAs showed that she was using.
The journal entry of termination shows that the district court cited the statutory factors of K.S.A.2011 Supp. 38–2269(b), which related to the parents' inability or unwillingness to adjust their circumstances in order to parent E.H. At the time of the termination hearing, the parents had unstable housing and were behind in their rent. They had very limited income and were apparently dependent on help from E.H.'s grandparent; that assistance was not expected to continue. Although the parents completed a parenting class, there were lingering concerns about their ability to actually parent E.H. Almost all of the parents' visits with E.H. were supervised because of their inability to keep her safe. The parents were unable to effectively address E.H.'s health issues, and they did not participate in her doctor's appointments. Both parents had only been sober for a few months and did not appear to be honest about their drug use.
Based on this evidence, it does not appear that the district court erred by concluding that there was clear and convincing evidence which supported the termination of the parents' parental rights. Given all of the evidence presented at trial, it appears that the district court was justified in finding that E.H.'s best interests were served by having the parents' parental rights terminated.
Affirmed.