Opinion
No. 108,354.
2013-02-15
In the Interest of G.B., A Minor Child.
Appeal from Lincoln District Court; Kim W. Cudney, Judge. Katie J. Cheney, of Law Office of Katie J. Cheney, of Beloit, for appellant natural father. Jennifer R. O'Hare, county attorney, for appellee.
Appeal from Lincoln District Court; Kim W. Cudney, Judge.
Katie J. Cheney, of Law Office of Katie J. Cheney, of Beloit, for appellant natural father. Jennifer R. O'Hare, county attorney, for appellee.
Susan Marshall, of Lincoln, guardian ad litem.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Claiming the court failed to notify his father of the termination proceeding as required by law, and contending insufficient evidence of unfitness, M.B. appeals the district court's termination of his parental rights to his son, G.B. Because M.B. has failed to show this court how lack of notice to his father prejudiced his case or affect the decision terminating his parental rights, we hold the failure of the court to notify the paternal grandparent of the proceeding is not a sufficient ground to reverse the court's order ending M.B.'s parental rights to G.B. Further, there is ample evidence supporting the court's order terminating his rights. We affirm the district court.
We address the notice issue first.
In his supplemental brief, M.B. claims the district court failed to give G.B.'s paternal grandfather notice of the petitions and proceedings leading to the termination of his parental rights. M.B. argues this violates the notice statute, so the decision below must be reversed.
The law on this point is perfectly clear; grandparents are not to be ignored when the State seeks to sever parental rights. Under K.S .A.2011 Supp. 38–2267(a) and (b)(1), upon receiving a petition or motion requesting termination of parental rights, the court must give notice of the hearing to all of the child's grandparents at their last known addresses. After that is accomplished, K.S.A.2011 Supp. 38–2267(c) then states that at the beginning of the termination hearing, the court shall determine that due diligence has been used in determining the identity and location of the grandparents and in accomplishing service of process. Similarly, K.S.A.2011 Supp. 38–2236, K.S.A.2011 Supp. 38–2254, and K.S.A.2011 Supp. 38–2265 all require that notice be given to grandparents with regard to the child in need of care petition, dispositional hearings, and permanency hearings.
Neither party has included in the record on appeal copies of the notices of the severance motion served on the parties. At oral argument, this court was told the State agencies involved thought the paternal grandfather was deceased. Evidently, they were mistaken. The parties do not dispute that the paternal grandfather was not given notice of the petitions filed and hearings held in this case.
Nevertheless, at the termination hearing, the district court indicated service was made “on all required parties” and that “due diligence” was made with regard to service. With these findings, the court complied with K.S.A. 38–2267(c) and proceeded with its hearing on the merits. M.B. did not object to these findings. The issue of notice was not raised in M.B.'s initial brief to this court but was raised in his supplemental brief.
We are not persuaded that the court's failure to notify the paternal grandfather prejudices M.B.'s case.
Simply put, MB. has not shown the lack of notice to the grandfather had any impact on the court's decision to terminate his parental rights. M.B. does not contend, for example, that the grandfather would have provided testimony that could have changed the court's decision to terminate his rights. His argument is simply, no notice-therefore reverse. We might be more sympathetic with that argument had M.B. not agreed with the district court's initial findings that all necessary parties had been notified and due diligence was exercised in any attempts at giving notice of the proceedings.
There is evidence in the record that M.B. knew his father was living with his second wife in Garden City, Kansas, and was working either as a meat processor or a federal meat inspector because he related that information to the mental health evaluator who reported that to the court and the social agencies involved in the case. M.B. never complained about lack of notice to his father to the district court during this long process. It is certainly clear that M.B. never argued to the district court that he wanted the testimony or support from his father to help with his case.
The lack of notice may not always be grounds for the reversal of a court's actions. In State v. Jones, 273 Kan. 756, 766, 47 P.3d 783,cert. denied537 U.S. 980 (2002), the court held a juvenile's due process rights were not violated when the court failed to give his parents notice of a hearing where the court determined whether he should be tried as an adult. Although the lack of notice violated Kansas statute, the court refused to hold the error was grounds for reversal, reasoning, in part, that there was no suggestion the lack of notice prejudiced Jones. 273 Kan. at 766–67; see In re C.M., No. 90,352, 2003 WL 22990213, * at 2 (Kan.App.2003) (unpublished opinion), where the court reasoned even though the father was not given proper notice of a dispositional hearing in a case where his parental rights were already terminated, the court would not reverse as father failed to show this lack of notice prejudiced him.
We will not reverse the district court on these grounds. We now turn to a review of the evidence.
We establish our standard of review.
Kansas appellate courts review a district court's decision to terminate a natural parent's rights for clear and convincing evidence. In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 (2008). In that case the court defined the clear and convincing evidence standard as follows:
“[W]hen an appellate court reviews a trial court's determination that a child is in need of care, it should 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 was a [child in need of care].” 286 Kan. at 705.
Although In re B.D.-Y. was a child in need of care case, the court expressly stated that its definition of the standard also applies in termination of parental rights cases. 286 Kan. at 697, 706. In applying the clear and convincing evidence standard, appellate courts do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
The statute governing the district court's decision to terminate parental rights is K.S.A.2011 Supp. 38–2269(a). That statute provides:
“When the child has been adjudicated to be a child in need of care, the court may terminate parental rights or 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.2011 Supp. 38–2269(b) lists several considerations for the district court determining the fitness of a parent. The court shall consider, although it is not limited to considering:
“(1) Emotional illness, mental illness, mental deficiency or physical disability of the parent, of such duration or nature as to render the parent unable to care for the ongoing physical, mental and emotional needs of the child;
(2) conduct toward a child of a physically, emotionally or sexually cruel or abusive nature;
(3) the use of intoxicating liquors or narcotic or dangerous drugs of such duration or nature as to render the parent unable to care for the ongoing physical, mental or emotional needs of the child;
(4) physical, mental or emotional abuse or neglect or sexual abuse of a child;
(5) conviction of a felony and imprisonment;
(6) unexplained injury or death of another child or stepchild of the parent or any child in the care of the parent at the time of injury or death;
(7) failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family;
(8) lack of effort on the part of the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child; and
(9) whether the child has been in extended out of home placement as a result of actions or inactions attributable to the parent and one or more of the factors listed in subsection (c) apply.”
In addition, if the child is not in the physical custody of a parent, the court shall consider, although it is not limited to considering:
“(1) Failure to assure care of the child in the parental home when able to do so;
(2) failure to maintain regular visitation, contact or communication with the child or with the custodian of the child;
(3) failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home; and
(4) failure to pay a reasonable portion of the cost of substitute physical care and maintenance based on ability to pay.” K.S.A.2011 Supp. 38–2269(c).
We review the findings of the court.
After entertaining the evidence, the district court terminated M.B.'s parental rights after finding his conduct violated several of the considerations listed in K.S.A.2011 Supp. 38–2269(b)and(c):
• K.S.A.2011 Supp. 38–2269(b)(4), physical, mental or emotional abuse;
• K.S.A.2011 Supp. 38–2269(b)(6), unexplained injury;
• K.S.A.2011 Supp. 38–2269(b)(7), failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family;
• K.S.A.2011 Supp. 38–2269(b)(8), lack of effort by the parent to adjust the parent's circumstances to meet the needs of the child, and;
• K.S.A.2011 Supp. 38–2269(c)(3), failure to carry out a reasonable plan to reintegrate the child into the home.
In this appeal, M.B. does not challenge the district court's findings listed above. Instead he focuses his attack on other reasons he believes the district court should have found him to be a fit parent. We consider each of these arguments in turn.
First, M.B. argues the initial removal of G.B. from his home in 2007 was “questionable.” M.B. says the social worker who found G.B. in Mother's home had no “immediate concerns” for his safety, noting G.B. was not removed from his home until 3 days later.
This argument misstates the record, ignores other critical facts, and asks this court to reweigh the evidence. First, the social worker who found G.B. in Mother's home testified she did have safety concerns with regard to G.B. being in Mother's home. Second, M.B. fails to acknowledge testimony that Mother's house was not considered safe, Mother's other children had already been removed from the home, and he knew G.B. was not to be at Mother's house. Finally, the 2007 incident was only the first of many incidents involving M.B. that occurred over the course of several years. M.B.'s attempt to minimize the 2007 incident is unpersuasive.
Next, M.B. contends that in 2008, G.B. should have been removed from State custody because M.B. completed case task plans as requested and the state entity found no reason to remove G.B. from his home at that time. Again, M.B. focuses on a few facts taken from the record and ignores a multitude of others. While there was indeed testimony that M.B. made progress in 2008 and G.B. seemed to be adjusting well into M.B.'s home at the time, the latter was based on reports provided by M.B. that G.B. was not exhibiting extreme behaviors. This is significant in that the key problem with M.B.'s conduct—as reported by the various state entities and noted by the district court—was M.B.'s refusal to acknowledge G.B.'s problems. Moreover, the time period M.B. refers to predates the bruising incident—just another incident that led to the second removal of G.B. from M.B.'s home.
At this point in his contentions, M.B. attempts to minimize the bruising incident. He says it is unknown what caused the bruising, he was not at home when the bruising occurred, and the state entity did not attempt to find out whether something such as G.B.'s medication could have caused the bruising. Again, M.B.'s arguments are not persuasive.
First, M.B. again asks this court to reweigh the evidence. Second, in its decision, the district court clearly acknowledged that the bruises were unexplained and there was no definitive answer as to how they occurred. The district court did not erroneously accuse M.B. of causing the bruises, but seemed to criticize M.B.'s reaction to the incident. The district court noted there were “many explanations offered” as to how the bruising occurred, and that he heard “plenty of ‘It's not my fault.’ “ At the termination hearing, M.B. was allowed ample opportunity to explain the bruising incident.
M.B. next complains that in December 2010, he was complying with case plan tasks and attending visitation, but he was not allowed additional visitation with G.B. as “[t]ypically” occurs when a parent complies with the case plan. M.B.'s argument on this point is unpersuasive. First, M.B. provides no support for his contention that parents are “[t]ypically” allowed additional visitation when they are making progress on case plan goals. Second, M.B.'s comments about the lack of additional visitation are unsupported with citation to the record. See Supreme Court Rule 6.02(d) (2011 Kan. Ct. R. Annot. 39), stating that any material factual statement made without being keyed to the record on appeal by volume and page number “may be presumed to be without support in the record.” Finally, if M.B.'s argument is that increased visitation would have somehow benefitted his relationship with G.B., this argument is unpersuasive in light of the record as a whole. Shortly after visitation with M.B. began in late 2010, therapists reported increased behaviors and signs of defiance and aggression in G.B. M.B. thereafter failed to comply with some aspects of the case plan, leading the state entity to advise the court that reintegration with M.B. was no longer a viable option. The record in this case does not reflect that a lack of visitation led to an unfair termination of M.B.'s parental rights.
M.B. also complains about the testimony of an agency supervisor indicating M.B.'s progress on case plan goals had little impact on the agency's visitation and placement decisions. M.B. says that after December 2010, the agency's reintegration plan was “just a facade.” The record refutes M.B.'s contention.
Although supervisor Mary Kay Talley indeed testified that M.B.'s compliance with the case plan tasks had “minimal impact” upon whether G.B. returned to M.B.'s home, Talley explained this was because of the number of times G.B. had been removed from the home and the agency's lingering concerns about M.B. Talley stated,
“I honestly, in my experience, and I've been doing foster care for over ten years, I really do not feel that there have been significant changes or significant progress and anything is going to change, and there is no doubt in my mind, should [G.B.] return to his father's home, it would only be a matter of time where he would be removed again.”
A cursory reading of both Talley's testimony and the other testimony in the record reveals the reintegration plan was not just a “facade.” Instead, the agency simply expressed reluctance based on M.B.'s past and current conduct. In short, the agency simply believed that while M.B. was complying with some case plan tasks, it was highly likely he would revert to his old ways, and G.B. would be removed from the home another time. The record, as a whole, supports the agency's concerns about M.B.
In the end of his argument M.B. claims he did everything he was asked to do, yet the state agencies caused “numerous delays” in the case. For support, he cites an 8–month delay in getting his psychological evaluation. We will not address his other claims of delay because they are not supported with citation to the record. Once again, his argument is unpersuasive.
Testimony that M.B. was not responsible for a delay that occurred in obtaining a psychological evaluation is insignificant to the district court's decision. The problem in this case was not just about M.B.'s ability to comply with the case plan in a timely manner, but about M.B.'s failure to provide a stable, healthy environment for both himself and G.B. The record reveals that a delay in obtaining the psychological evaluation-regardless of who the delay was attributable to-was only a minor fact of this case.
We offer a brief overview of the evidence in the record.
Agents from the various agencies involved in this case consistently reported that G.B. was demonstrating severe and uncontrollable behaviors, yet M.B. reported that G.B. was demonstrating few behaviors. Agents testified that although M.B. completed “some of the tasks” assigned under the case plan, most of those tasks were mere “maintenance tasks.” There was testimony M.B. was only compliant with the case plan tasks as he “wanted to be”—meaning he would only do things he wanted to do. It was reported that M.B. was unemployed, and as of May 2012, there had been no significant changes to M.B.'s home since 2010. Due to the lack of change, there was testimony it would not be possible to safely reintegrate G.B. into M.B.'s home.
A therapist who evaluated both parent and child described M.B. as irresponsible and undependable. The same therapist testified G.B. needed his parents' rights to be severed so he could move to a stable home. The therapist indicated G.B. needs a home that provides a nurturing environment, and he needs a parent who will provide structure and consistency. The therapist noted M.B.'s lack of financial stability and marital discord. There was testimony that M.B. owed a total of $4,841.84 in child support for G.B., and his arrearage for all four of his children exceeded $35,000.
After reviewing all the evidence, viewed in the light most favorable to the State, it is clear that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that M.B. was an unfit parent. The district court did not err in terminating M.B.'s parental rights under these facts.
Affirmed.