Opinion
No. 112,187.
2015-01-16
In the Interest of E.V., O.V.A., and C.V.A., Children Under Eighteen (18) Years of Age.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.Patricia Aylward–Kalb, of Kansas City, for appellant natural father and appellant natural mother.Ashley Hutton, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.
Patricia Aylward–Kalb, of Kansas City, for appellant natural father and appellant natural mother. Ashley Hutton, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
K.B. (Mother) and J.V.A. (Father) appeal from the district court's decision to terminate parental rights to their children, E.V ., O.V.A., and C.V.A. For the reasons stated below, we affirm.
Facts
On March 5, 2013, Mother called paramedics to her home based on the unusual behavior of her 17–month–old son, O.V.A. The medics transported O.V.A. by ambulance to the hospital, where it was discovered that O.V.A. had ingested methamphetamine, amphetamine, oxycontin, and opiates into his system. The hospital later screened E.V., who was almost 3 years old, as a precaution, but he tested negative for any drugs.
On March 6, 2013, the State filed child in need of care (CINC) petitions alleging O.V.A. and E.V. were children in need of care as defined in the Revised Kansas Code for Care of Children, K.S.A.2013 Supp. 38–2201 et seq. More specifically, the petitions alleged concerns regarding lack of supervision, drug use within the home, and failure to make use of family preservation services offered. In conjunction with the petitions, the State filed applications for ex parte orders of protective custody asking that O.V.A. and E.V. be removed from their home. The district court granted the applications and ordered that both children be placed in the protective custody of the Kansas Department for Children and Families (DCF). On March 11, 2013, the court continued temporary custody with DCF until the adjudication hearing.
At the adjudication hearing on April 3, 2013, Mother and Father stipulated to the facts as alleged in the CINC petitions. Thereafter, the district court issued the following orders: (1) that the children remain in DCF's custody, (2) that visitation be supervised, (3) that parents obtain family assessments and follow the recommendations, (4) that parents sign necessary releases, (5) that parents maintain stable income and housing, (6) that parents must contact the court services officer once a month and prior to address or phone number changes, (7) that parents participate in age-appropriate parenting classes, (8) that parents submit to timely, random urinalysis (UA) testing, and (9) that Mother participate in a mental health assessment and follow the recommendations.
On May 2, 2013, the district court held a disposition hearing. Finding the option of reintegration to be viable, the court ordered a case plan targeting reintegration be developed as the goal for permanency. The court ordered the parents to continue to work toward achieving the goals set forth in the previous order. At a review hearing on August 1, 2013, the court ordered Mother and Father to obtain a parenting assessment, to follow any resulting recommendations, and, again, to comply with all prior orders.
A permanency hearing was held on January 13, 2014, to assess what progress had been made toward accomplishing the case permanency goal of reintegration. At the conclusion of the hearing, the court found reintegration was no longer a viable option. The court ordered the agency to change the permanency goal to guardianship or adoption and begin the process necessary to pursue termination of parental rights. The court scheduled a termination hearing for May 20, 2014.
On April 8, 2014, Mother gave birth to C.V.A. Father is C.V.A.'s biological father. On April 11, 2014, the State filed a petition alleging C.V.A. was a child in need of care and an application seeking an ex parte order of protective custody requesting C.V.A. be removed from the parents' home and placed in DCF custody. In support of the requested relief, the petition alleged C.V.A. tested positive for amphetamines at birth and documented the court's recent finding that reintegration for E.V. and O.V.A. was not a viable option. The district court granted the State's application and placed C.V.A. in the protective custody of DCF. The next week, the State filed motions to terminate Mother and Father's parental rights to E.V., O.V.A., and C.V.A.
The termination hearing was held as scheduled on May 20, 2014. DCF social work specialist Jamie Oborg, whose job duties included investigating reports of child abuse and neglect, was the first witness to testify. Oborg became involved in the case after receiving a report that C.V.A. had tested positive for amphetamines upon birth. Mother denied using any type of illegal substance during pregnancy; in fact, Mother told Oborg that she was unaware she was even pregnant until 30 weeks along. When Mother did become aware she was pregnant, she did not tell DCF because she did not want her pregnancy to complicate the case involving O.V.A. and E.V. During the investigation, Mother revealed that she did not have many of the baby supplies she needed for C.V.A. and had not yet baby-proofed her home. Mother also told Oborg she had an outstanding warrant for her arrest.
Court services officer Ramona MacDougall testified next. MacDougall reported that neither parent had complied with the orders issued by the court. Specifically, MacDougall reported that Mother and Father failed to provide a lease to their residence and at least one letter MacDougall sent to their address had been returned. MacDougall also testified about the parents' lack of a stable employment history. Mother had never been employed while the case was pending, and Father was only sporadically employed, providing verification of employment only once for a brief time in August 2013. MacDougall reported concerns about both parents' drug abuse and Mother's inability to successfully manage her mental health issues with prescribed medicines. Despite a recommendation from medical providers to take medication for purposes of managing her bipolar disorder, Mother failed to do so. Mother reported to MacDougall that she did not like being on medication and would not take it. MacDougall also testified that Mother tested positive for methamphetamines and amphetamines on April 3, 2013; that Mother failed to submit a UA specimen on May 2, 2013; and that Mother failed to call or show up for UA appointments on May 23, 2013, and June 17, 2013. Although Mother had five negative UA results from August to November 2013, she missed five UA appointments from December 2013 to May 2014. MacDougall testified that Father initially submitted four negative UA results but those were followed by four missed appointments.
The next witness to testify was Alyssa Hillman, a parent educator and former KVC case manager for Mother and Father. While she was case manager, the family moved from supervised visits at the KVC office to supervised visits in the home. In her capacity as an educator, Hillman reported that Mother and Father actively resisted utilizing the parenting skills she taught. According to Hillman, Father mastered only one of the skills she attempted to teach him and Mother failed to master any of them.
Hillman testified about Mother's inappropriate language during visits. Mother stated to Hillman, in front of the children, that “ ‘[a]ll you guys are doing is fucking up families.’ “ Mother and Father argued in front of the children frequently. Mother often referred to Father in a derogatory manner, and the children would, in turn, refer to Father that way. Mother also called the children inappropriate names during visits. Hillman also testified that the parents exercised poor parenting judgment and consistently failed to provide adequate supervision during home visits. At one point, an unknown man was present during the visit and when asked who he was, Mother and Father failed to identify him. Mother would often leave the front door open, which required Hillman to intervene in order to prevent the children from wandering away. In another instance, Mother gave E.V. and O.V.A. hammers to play with during the ride back to their placement. Although instructed that these were not appropriate toys for the children, Mother ignored the redirection and again offered the hammers to the children.
Hillman reported the condition of the home deteriorated as time went on. There were times when Hillman had to instruct Mother to clean up dog feces before Hillman could even allow visits to begin. In fact, Hillman often had to instruct both parents to clean up dog urine or feces during visits. This issue became more prevalent as Mother and Father added more dogs to the family home, including two large dogs that would jump on the children during visits. Hillman reported she would often have to disengage the dogs from the children during visits. When Hillman expressed concern about the dogs and the unsanitary condition of the home related to them, Mother accused Hillman of just not liking dogs.
KVC case manager Evalyn Fisher testified next. During the time she worked with Mother and Father, Fisher testified they struggled to monitor the children appropriately and often left the children alone with the worker. At one visit, Fisher observed shreds of a balloon on the floor and had to prompt the parents to sweep because the balloons were a choking hazard for O.V.A. and E.V. During another visit O.V.A. needed a diaper change but Mother did not have a clean diaper for him. Mother left the home in an attempt to find a diaper but failed to locate one. Fisher testified she prompted Mother and Father to change O.V.A.'s diaper during another visit, but Mother responded that she would let placement handle it when they came to pick O.V.A. up.
Fisher also observed inappropriate behavior during visits. In one instance, E.V. and O.V.A. asked Mother for permission to feed their fish. Mother told the toddlers that Father killed their fish, which prompted an argument between Mother and Father in front of the children about who was responsible for the death of the fish and why. And in another instance, one of the family's larger dogs jumped on O.V.A. When he cried, Mother responded by calling him a “big baby.” O.V.A. continued to cry and whimper until Father eventually took the dog outside.
Mother and Father received in-home services from a parenting instructor through a program called Parents as Teachers. In one case, Fisher also observed Mother inform the parenting instructor that a project assigned was “ ‘dumb, and the kids don't want to do that. I don't know why I have to do that.’ “ When Fisher later told Mother that she needed to cooperate with the parenting instructor, Mother responded: “ ‘I don't get why I have to do that stuff. I raised them until this point, and I don't think that I need to do it.’ “ During the first visit with C.V.A., Fisher had to remind Mother several times to support C.VA.'s head and when the parenting instructor provided her information on newborns, Mother responded: “ ‘I don't need that. I raised these boys just fine. I don't understand really why you're giving me this information.’ “
Mother and Father both testified briefly to the fact that they were sufficiently able to take care of their children. Mother also confirmed that she did not reveal her pregnancy with C.V.A. to the State because she was worried it would complicate things with E.V. and O.V.A.
Based on the evidence presented at the May 20, 2014, termination hearing, the court adjudicated C.V.A. as a child in need of care and terminated Mother's and Father's parental rights to E.V., O.V.A., and C.V.A.
Analysis
1. Termination
In order for the district court to terminate parental rights, the State must have proved by clear and convincing evidence that (1) the parent is unfit and (2) the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future. K.S.A.2013 Supp. 38–2269(a). Although only by a preponderance of the evidence, the State also must have proved that termination is in the best interests of the child. K.S.A.2013 Supp. 38–2269(g)(1); see In re R.S., 50 Kan.App.2d ––––, 336 P.3d 903, 910 (2014).
Notably, our standard of review on appeal necessarily depends on the State's burden of proof at the termination proceedings. If the issue on appeal relates to the district court's decision regarding current and future unfitness, the appellate court reviews all the evidence, in the light most favorable to the State, to determine whether it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that a parent is unfit and the conduct or condition rendering the parent unfit is unlikely to change in the foreseeable future. In re B.D.-Y., 286 Kan. 686, 691, 705, 187 P.3d 594 (2008). If, however, the issue presented on appeal relates to a decision regarding the best interests of the child, the decision is reviewed for abuse of discretion. In re R.S., 336 P.3d at 910. a. Unfitness
K.S.A.2013 Supp. 38–2269(b) and (c) provide a nonexclusive list of factors a district court should consider when determining whether a parent is unfit. Importantly, Kansas law provides that the existence of any one of the factors listed in K.S.A.2013 Supp. 38–2269(b) and (c) may, but does not necessarily, establish grounds for termination of parental rights. K.S.A.2013 Supp. 38–2269(f). Here, the district court specifically relied on the following statutory factors in finding Mother and Father unfit:
• K.S.A.2013 Supp. 38–2269(b)(1) (emotional illness, mental illness, mental deficiency, or physical disability of parent, of such duration or nature as to render parent unable to care for ongoing physical, mental, and emotional needs of child).
• K.S.A.2013 Supp. 38–2269(b)(7) (failure of reasonable efforts made by appropriate public or private agencies to rehabilitate family).
• K.S.A.2013 Supp. 38–2269(b)(8) (lack of effort on the part of parent to adjust parent's circumstances, conduct, or conditions to meet needs of child).
• K.S.A.2013 Supp. 38–2269(c)(3) (failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home).
We note, as a preliminary matter, that Mother and Father only challenge two of the four findings made by the district court to support its finding of unfitness: the finding under K.S.A.2013 Supp. 38–2269(b)(7) that reasonable efforts by appropriate agencies failed to rehabilitate the family and the finding under K.S.A.2013 Supp. 38–2269(c)(3) that they failed to carry out a reasonable reintegration plan. Thus, even if Mother and Father prevailed on the arguments they presented, the decision of the district court nevertheless may be affirmed based on the factors that the parents did not challenge.
In sole support of the argument they did make, Mother and Father rely on testimony presented by Fisher at the termination hearing during which she confirmed telling Mother and Father in March 2014 that they were doing well and that visits may move from supervised to unsupervised. Mother and Father assert this testimony is strong evidence that establishes they were successfully carrying out a reasonable plan approved by the court directed toward the reintegration in the month before the motion for termination was filed. But Mother and Father cite only a portion of Fisher's testimony. Fisher went on to clarify that the positive feedback she provided to Mother and Father pertained only to improvements they made in the physical state of their house. In addition to this praise, she also discussed with Mother and Father her concerns about the court orders that they were not following and their failure to implement basic parenting skills.
Keeping in mind that E.V. and O.V.A. had been in DCF custody for 14 months by the time the termination hearing was held, and viewing all of the evidence presented at the hearing in a light most favorable to the State, we find clear and convincing evidence supports the court's findings under K.S.A.2013 Supp. 38–2269(b)(7) and (c)(3) that Mother and Father were unfit to parent any of the three children in DCF custody and that the conditions rendering them unfit were unlikely to change in the foreseeable future. b. Best interests
After finding that Mother and Father were unfit, the district court specifically noted that it was giving primary consideration to the physical, mental, and emotional needs of the children and found that termination of parental rights was in the children's best interests. Mother and Father claim the evidence does not support the court's finding in this regard. Specifically, they point to testimony from Hillman and Fisher stating that the parents were bonded with E.V. and O.V.A. Despite the existence of a bond between the parents and their children, clear and convincing evidence supports the district court's finding that it was in the children's best interests to terminate Mother's and Father's parental rights. Viewing the evidence in the light most favorable to the State, both permanency case workers expressed significant concerns about the ability of Mother and Father to successfully parent the children. Further, as the district court noted in its findings, a permanency resource already had been identified for E.V. and O.Y.A., and C.V.A. was still quite young and adoptable.
2. Adjudication
Notwithstanding our finding of sufficient evidence to support the district court's decision to terminate parental rights to all three children, we must still consider Mother and Father's claim of insufficient evidence to support the court's adjudication of C.V.A. as a child in need of care because adjudication is a prerequisite to any termination decision. The State bears the burden to prove by clear and convincing evidence that a child is one in need of care. K.S.A.2013 Supp. 38–2250. A “child in need of care” is defined by statute as one who is under the age of 18 and who meets one of the factors set out in K.S.A.2013 Supp. 38–2202(d). In this case, the district court found the State successfully met its burden under the following two statutory definitions:
• K.S.A.2013 Supp. 38–2202(d)(l) (child is without adequate parental care, control, or subsistence and the condition is not due solely to the lack of financial means of the child's parents or other custodian).
• K.S.A.2013 Supp. 38–2202(d)(2) (child is without the care or control necessary for the child's physical, mental, or emotional health).
In reviewing a district court's order of adjudication, this court must 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 child is in need of care].” In re B.D.-Y., 286 Kan. at 705.
In sole support of their claim, Mother and Father argue the State failed to present any evidence at the evidentiary hearing to establish the allegation in its petition that there were drugs in C.V.A.'s system when she was born. But the district court did not rely on the State's allegations regarding drugs in C.V.A.'s system when it declared her a child in need of care. Rather, it noted in its findings that Mother and Father lacked the basic parenting skills to keep their children safe from harm. The evidence presented at the hearing readily established that, despite reasonable efforts to provide the skills necessary to enable them to safely parent their children, Mother and Father simply were unable or unwilling to implement them. As a result, we find clear and convincing evidence supported the district court's finding that C.V.A. was a child in need of care.
Based on a thorough review of the record, we find clear and convincing evidence supports the district court's conclusion that Mother and Father were unfit to parent the children and that the conditions rendering them unfit were unlikely to change in the foreseeable future. We also find the district court did not abuse its discretion in concluding that the children's best interests would be served by terminating Mother's and Father's parental rights. We therefore affirm the district court's decision.
Affirmed.