Opinion
No. 109,284.
2013-06-14
In the Interest of E.J.M. (d.o.b.06/30/2010), a Male Juvenile under 18 Years of Age.
Appeal from Franklin District Court; Eric W. Godderz, Judge. Mark Doty, of Gleason & Doty, Chartered, of Ottawa, for appellant natural father. James T. Ward, assistant county attorney, and Stephen A. Hunting, county attorney, for appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge.
Mark Doty, of Gleason & Doty, Chartered, of Ottawa, for appellant natural father. James T. Ward, assistant county attorney, and Stephen A. Hunting, county attorney, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
The natural father (Father) appeals from the trial court's judgment terminating his parental rights to his child, E.J.M. On appeal, Father contends that the trial court erred when it determined that he failed to rebut the presumption of unfitness. In addition, Father contends that the State failed to show by clear and convincing evidence that he was unfit to have custody of E.J.M. We disagree. Accordingly, we affirm.
E.J.M. was removed from his mother's care just days after his birth on June 30, 2010. E.J.M. tested positive for marijuana at birth and his mother admitted to using marijuana during most of her pregnancy. Mother was not forthcoming with medical personnel and social workers about her plans for E.J.M.'s home situation. These circumstances were especially troubling because the State had extensive involvement with Mother and her four older children, all of whom had been removed from her care. Moreover, her rights to those children had been terminated in May 2010, shortly before E.J.M .'s birth.
Initially, the identity of E.J.M.'s father was uncertain. Father was Mother's boyfriend when E.J.M. was born, and Mother told hospital personnel that she believed he was the baby's father. Yet, she admitted that C.J., the father of her four older children, also could be the father. Because of the uncertainty as to his paternity, Father refused to sign E.J.M.'s birth certificate.
The State filed a child in need of care (CINC) petition and an application for temporary custody within a few days after E.J.M.'s birth. Even though E.J.M.'s paternity had not yet been resolved, KVC Behavioral Health Care (KVC) attempted to reintegrate E.J.M. with Father and Mother. This attempt to reintegrate Father and Mother spanned a period of nearly 2 years. Because Mother has not appealed from the termination of her parental rights, this court will focus on Father's efforts to become the custodial parent of E.J.M.
Even before the CINC adjudication, KVC met with Father to set up a case plan. Under the plan, Father was to cooperate with paternity testing, submit to random urinanalysis (UA) testing, provide contact information, and sign releases allowing KVC to access Father's records. Under the initial case plan, Father was allowed visitation with E.J.M. twice a week at KVC offices. In addition, Father was directed to obtain and maintain safe and stable housing as well as legal and stable means of employment. Moreover, because his driver's license had been suspended, Father was directed to get his license reinstated or find other legal means of transportation. These requirements existed throughout the proceeding.
The trial court determined that E.J.M. was in need of care when Mother stipulated to the child's status at the CINC hearing. The court continued E.J.M.'s out-of-home placement. Father did not appear at that hearing.
Father's paternity was confirmed shortly before or after the CINC hearing. He met regularly with KVC personnel with respect to his case plan. Throughout the next 20–plus months, Father completed some of the tasks assigned to him. Father regularly submitted to UA testing and consistently tested negative. After some delay, Father completed a mental health intake, and it was determined long-term counseling was not required. Father also completed parenting classes. Father regularly visited E.J.M., although Father struggled periodically to make it to the visits on time.
Father, however, was involved in several criminal and traffic issues during this period. Father spent a week in jail in Topeka because of outstanding parking tickets. Father had not obtained a valid driver's license, although the case plan required him to obtain one. Shortly after the CINC hearing, criminal charges were filed against Father, apparently stemming from a dispute between Father and E.J.M.'s mother. The difficulties in Father and Mother's relationship required KVC to limit contact between the two and separate their visitation sessions with the child. The criminal case apparently was resolved, and Mother and Father reunited briefly for several months. Neither Father nor Mother arranged for couples counseling as required as part of the reintegration plan when they got back together.
Despite Father's efforts, however, KVC had serious concerns about reintegration of E.J.M. with either parent. Throughout the 2 years the case was pending, Father failed to obtain and maintain satisfactory housing. Initially, Father lived in Pomona with a friend. When the friend moved, Father remained in the rental home. When social workers conducted a walk-through of the house, they found belongings piled almost to the ceiling and covering most of the floor, as well as a stairway to the basement without a door. Father was directed to resolve the clutter and inform KVC when he was ready for another inspection; he never requested another inspection. When Father fell behind in his rent, he was ultimately evicted from the house.
In September 2011, Father and Mother moved into a home with a friend in Kansas City, Kansas. Father was asked to obtain a release from the friend to permit a criminal background check; after some delay, KVC received the release. The State learned that Father's roommate had multiple prior convictions for sale or distribution of illegal drugs. In addition, the roommate was required to register as a sex offender because of a prior conviction for indecent liberties and attempted indecent liberties with a child. Father continued to live with this convicted felon until shortly before the termination hearing.
Social workers advised Father throughout the case that he needed to obtain and maintain stable employment. Father, however, never reported regular employment, provided proof of steady income, or completed employment applications seeking work. These problems persisted even though social workers gave Father advertisements and internet job postings that fit his particular skill level. Father told KVC personnel that he helped friends with odd jobs or side jobs in exchange for rent and other expenses. This included lawn work, home repairs, and auto repair. Father also reported selling disc golf products and planned to sell other types of products. Before the May 2012 permanency hearing, Father reported that he had obtained work at a scrap metal shop, but he only provided a few point-of-sale receipts showing he had sold scrap metal to the facility.
In July 2012, nearly 2 years after E.J.M. had been removed from his parents' care, the State moved to terminate both parents' rights, citing their lack of significant progress in completing the reintegration plan.
A hearing on the State's motion to terminate was held on October 15, 2012. The State presented the testimony and reports of various KVC employees as outlined earlier. Father, however, testified that his circumstances had recently changed. He testified that he had recently moved to Archie, Missouri, and lived in a motor home outside the auto shop where he was working. Father stated that he had worked for this employer several years before. Father's work required him to remove scrap metal from used vehicles that his employer had purchased or had received in trade. As a result of this work, Father maintained that he owned a number of cars that he was salvaging for scrap or repairing. Father also reported that he was performing custom work for other car owners. Father stated that he received additional income—about $3,000 in 2011—by playing in disc golf tournaments; he also sold golf discs to collectors. Based upon his new employment, Father estimated his monthly income would be $1,000 to $2,000. Father also stated that he had given an estimate for a $5,000 tree job and that he expected to win the bid. Father further testified that he had trouble holding employment because his religion prohibited him working on the Sabbath and under his religion's calendar, the Sabbath changed each month according to the date of the new moon. Father, however, never provided documents confirming his employment or his earnings to KVC, nor was this documentation offered at trial.
Father also stated that his housing situation had changed. Father testified that he had a friend who had two Missouri residences where he could live. Father was currently living in a motor home to save money; however, he estimated he would have enough money in 30 to 60 days to move into one of the residences. The owner of these homes testified he would allow Father to live in one of the homes without rent as long as Father maintained the property. Although both houses were being placed on the market to sell, Father could live in one until it was sold. The owner admitted, however, that these homes were 40 to 90 miles from the shop where Father was working. Yet, at the start of the hearing, Father still had not obtained a valid driver's license.
At the conclusion of the hearing, the trial court terminated Father's parental rights. The court determined that a presumption existed that Father was unfit under K.S.A.2012 Supp. 38–2271(a)(6)(A)–(C) because E.J.M. had been in out-of-home placement for more than 2 years, Father had failed to carry out a reasonable reintegration plan, and there was a substantial probability Father would not be able to carry out the plan in the future. The court also questioned Father's credibility about a reported new residence and new income. The court further determined that Father had failed to present sufficient evidence to rebut the presumption that he is unfit and unlikely to become able to care for the child in the foreseeable future. The court also found Father unfit under K.S.A.2012 Supp. 38–2269. Finally, the court determined it was in E.J.M.'s best interest to terminate Father's rights. Was there clear and convincing evidence to support the trial court's determination that Father was unable to rebut the presumption of unfitness?
On appeal, Father asserts that there was insufficient evidence to find him unfit in light of his substantial completion of portions of the case plan. Father also maintains that he presented sufficient evidence to rebut any presumption of unfitness. He further argues that in light of changes made by him before the termination hearing, the trial court erred in finding he could not change his conduct or conditions within the foreseeable future.
Under the Revised Kansas Code for Care of Children, parental rights may be terminated when a child has been adjudicated to be a child in need of care and the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition that renders the parent unable to care properly for the child and the conduct or condition is unlikely to change in the foreseeable future. K.S.A.2012 Supp. 38–2269(a). The court may look to a variety of factors listed in K.S.A.2012 Supp. 38–2269(b) and (c), and, under K.S.A.2012 Supp. 38–2269(f), finding any one of the factors may be sufficient to establish grounds for termination based on unfitness. The court also must find that termination is in the child's best interest. K.S.A.2012 Supp. 38–2269(g)(1).
In order for evidence to be clear and convincing, the evidence must be sufficient to establish “that the truth of the facts asserted is highly probable.” In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3, 187 P.3d 594 (2008). When reviewing termination of parental rights, an appellate court must determine “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 the determination to be highly probable” ( i.e., established by clear and convincing evidence that the parent's rights should be terminated). In re B.D.-Y., 286 Kan. 686, Syl. ¶ 4. We look at the evidence in the light most favorable to the State because the trial court found in its favor, and the factual findings must be made by the trial court, which hears the evidence directly, not the appellate court. See In re A.L.C., No. 107,388, 2012 WL 3172538, at *3 (Kan.App.2012) (unpublished opinion), rev. denied 295 Kan. –––– (October 11, 2012).
A parent who has been found by the court under K.S.A.2012 Supp. 38–2271(a) to be presumed unfit may rebut this presumption by proving by a preponderance of the evidence 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. K.S.A.2012 Supp. 38–2271(b).
In this case, E.J.M. was placed in the State's custody on July 6, 2010. E.J.M. has remained there for over 2 years. During that time, five case plan meetings were held from July 19, 2010, to April 6, 2012. The first case plan was filed with the court on August 24, 2010, and the most recent case plan was filed with the court on May 25, 2012. At each permanency hearing the trial court adopted case plan tasks requiring Father to obtain and maintain legal means of transportation, to obtain and maintain stable housing, and to obtain and maintain legal means of employment. Father never successfully completed these minimum case plan tasks.
Father, although employed intermittently, never obtained stable and legal employment as required by the court-adopted case plan. Moreover, Father never obtained stable and safe housing for E.J.M. as required by the court-adopted case plan. Throughout the time E.J .M. was placed out of the home, Father continued to reside with a convicted felon, specifically, a man who had been convicted of attempted indecent liberties with a child and cultivating or distributing hallucinogenic drugs. KVC on numerous occasions spoke with Father about the dangers of having E.J.M. in the same home as a convicted and registered sex offender. Also, Father never obtained a driver's license or other means of legal transportation during the 2 years E.J.M. was placed out of the home.
At the termination hearing on October 15, 2012, the trial court found that E.J.M. had been in an out-of-home placement for a total period of 2 years or longer; Father had failed to carry out a reasonable court-approved plan, directed toward the reintegration of E.M.J. into the home of Father; and a substantial probability existed that Father will not carry out such plan in the near future. The court also found that the State had presented facts with probative value to apply the presumption under K.S.A.2012 Supp. 38–2271(a)(6)(A)–(C) and ruled that Father was unfit by reason of conduct or condition that rendered him unable to fully care for E.J.M.
The trial court considered the evidence presented by Father to rebut the presumption of unfitness and determined that Father did not show by a preponderance of the evidence his fitness to care for E.J.M. or that he would be fit to care for E.J.M. in the foreseeable future. The court found that in the 2 years since E.J.M.'s paternity had been established, Father had shown a lack of effort to adjust his circumstances, conduct, or condition to meet E.J.M.'s needs. The court found that much of Father's testimony regarding his plans to change his circumstances was unconvincing and so did not overcome his consistent lack of progress in fully completing his assigned case plan tasks. After making these findings, the court determined, after considering the physical, mental, and emotional health of E.J.M., that termination of Father's parental rights was in the best interests of E.J.M.
The trial court properly found that the State presented facts that proved by clear and convicing evidence that the presumption under K.S.A.2012 Supp. 38–2271(a)(6)(A)–(C) should be applied to Father. Moreover, the court properly determined that Father failed to rebut the presumption of unfitness through a preponderance of the evidence. When we consider the fact of the lack of change in conduct of Father and his lack of effort to follow the reintegration plan to regain custody of E.J.M., we determine that the trial court's unfitness finding is supported by clear and convincing evidence. Best interest of the child
Following a finding of parental unfitness, the trial court must next determine if termination of parental rights is in the best interest of the child. K.S.A.2012 Supp. 38–2269(g)(1). The trial court is in the best position to decide if termination is in the best interest of the child. An appellate court cannot 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. –––– (2010).
The standard of review for abuse of discretion is whether a reasonable person could have agreed with the trial court. If so, then there is no abuse of discretion. In addition, the trial court abuses its discretion if its ruling is based on a factual error or a legal error. See Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011).
A reasonable person could agree with the trial court in finding E .J.M. was best served by the termination of his relationship with Father.
Affirmed.