Opinion
No. 111,893.
2014-11-21
In the Matter of G.J., A Child Under Eighteen (18) Years of Age.
Appeal from Atchison District Court; Robert J. Bednar, Judge.Andrew E. Werring, of Werring Law Office, LLC, of Atchison, for appellant mother.Patrick E. Henderson, assistant county attorney, and Gerald R. Kuckelman, county attorney, for appellee.
Appeal from Atchison District Court; Robert J. Bednar, Judge.
Andrew E. Werring, of Werring Law Office, LLC, of Atchison, for appellant mother. Patrick E. Henderson, assistant county attorney, and Gerald R. Kuckelman, county attorney, for appellee.
Rex L. Lane, of Lane Law Office LLC, guardian ad litem.
Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.
MEMORANDUM OPINION
LEBEN, J.
Mother appeals the district court's termination of her parental rights to her daughter, G.J. Mother claims on appeal that the evidence wasn't sufficient in this case for the district court to terminate her parental rights.
But the court is authorized to terminate a parent's rights when the parent is “unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” K.SA.2013 Supp. 38–2269(a). By the time of the termination hearing in the district court, Mother had not seen G.J for almost a year. She had missed several of the drug tests that were required for her to see her daughter. A social worker testified that Mother's limited motivation and involvement with KVC Behavioral Healthcare, the agency in charge of her daughter's case, had prevented it from rehabilitating the family, and Mother had not secured housing, completed a parenting class, or taken any steps to obtain employment to support G.J. Given the time that had gone by and the substantial adjustments Mother still needed to make for G.J. to live with her, the evidence was sufficient for the district court to conclude that Mother was unfit to parent G.J. and would be unfit for the foreseeable future.
Factual and Procedural Background
In March 2013, the State filed a petition requesting that the district court find 1–year–old G.J. a child in need of care. An amended petition stated that Mother had admitted to using methamphetamine, had been caught shoplifting with G.J., and had been living in a home without running water. The amended petition alleged that G.J. had been abused or neglected, was without the care or control necessary for her physical, mental, or emotional health, and was without adequate parental control for reasons beyond her parents' lack of financial means. The district court ordered that G .J. be placed in the custody of the Kansas Department for Children and Families, which placed her in a foster home.
In April 2013, Mother and Father stipulated that G.J. was a child in need of care. To regain custody of her daughter, Mother had to complete certain tasks outlined in a reintegration plan:
• complete a parenting program;
• have regular face-to-face contact with G.J.;
• obtain appropriate housing;
• obtain employment;
• complete a drug and alcohol assessment;
• participate in mental-health services;
• comply with medication management;
• refrain from using drugs or alcohol and submit to random drug screens;
• maintain regular contact with KVC; and
• make monthly child-support payments.
Mother did not personally appear at hearings on G.J.'s case in April, July, and September 2013. At the September hearing, the district court accepted into evidence a written report from KVC about Mother's progress. The report provided that Mother was homeless and using methamphetamine. It also stated that she had not completed a parenting program or provided verification of employment, a drug and alcohol assessment, or participation in mental-health services. Mother had not visited G.J. since G.J. went into state custody because Mother had failed to comply with drug screens and to report her whereabouts to KVC. Mother also had not made any child-support payments because she was unemployed.
In November 2013, Mother consented to the appointment of a permanent custodian for G.J. The consent document specifically said that Mother's parental rights were not being terminated. On December 6, 2013, KVC provided the court with a report that did not address plans for reintegrating Mother and G.J. because Mother had “relinquished her parental rights,” which was not accurate. KVC corrected this error in its January 2014 and March 2014 reports, which addressed Mother's plans for reintegration and correctly indicated that Mother had consented to the appointment of a permanent custodian.
On March 19, 2014, the court held a hearing on the State's motion to terminate Mother's parental rights. Mother told the court that she had met all of G.J.'s needs when she had had custody of her. Mother said she had stayed with friends for a few weeks at a time and that G.J. had always had food and shelter.
Mother admitted to the court, however, that she had not seen G.J. for over 11 months and that she had not successfully completed her reintegration plan. Mother acknowledged that she had not had regular face-to-face contact with G.J., completed a parenting program, maintained appropriate housing, or obtained employment. Mother told the court that since G.J. was 3 or 4 months old, Mother had only been sober while she was incarcerated. Negative urinalysis tests (UAs) were required for visits with G.J., and from April 2013 to October 2013, Mother missed 14 UAs, tested positive for amphetamines and methamphetamine once, and had only 4 clean UAs.
But Mother had been sober for the 68 days before the termination hearing and had moved into a drug-rehabilitation facility on January 27, 2014. Mother reported that she would finish at the rehabilitation facility in 18 days and had scheduled an interview with a sober-living house where, if accepted, she could live as long as she paid her rent and maintained her sobriety.
Regarding contact with KVC, Mother also reported that she had completed a drug and alcohol assessment, which indicated that she needed to treat her depression before her addiction. Mother said she hadn't been able to afford treatment for her depression. She said she had asked KVC for assistance in the fall of 2013 but had never heard whether KVC would help her pay for treatment. A KVC social worker, Mary Hoffman, told the court that she had not requested funding for Mother's mental-health treatment because Mother had stopped contacting KVC. Hoffman said she would have requested the funding if Mother had resumed contact with her.
Mother's reintegration plan required that she “maintain regular contact with KVC staff, [ ] participate in case management meetings at least once a month, and [ ] keep KVC informed of whereabouts at all times.” Mother told the court that since she had lost custody of G.J. she had not stayed in touch consistently but had made contact with the agency:
“[State: The reintegration plan requires] that you [ ] maintain regular contact with K.V.C. staff at least once a month. Did you do that?
“[Mother:] I don't think I did manage to keep it once a month. I know there were times that 1 did contact. And there [were] times I did go and do my u.a.'s, that were negative. But I don't think I maintained consistent contact, no.”
According to KVC records, Mother made contact with KVC by phone or in person every month except one from April 2013 until she consented to have the court appoint a permanent custodian in November 2013. Hoffman testified that after Mother consented to a permanent custodian, Mother had contacted KVC “a few times” and requested visits with G.J., and KVC records indicate that Mother called and asked for a visit in February 2014. But because Mother had “agreed to a custodianship” and because of “her lack of involvement up to this point,” KVC told Mother she would be required to complete her drug-rehabilitation program before she could visit her daughter.
When the State asked if her parental rights should be terminated, Mother said:
“I can't say that I deserve to raise my daughter. I have made some really horrible decisions. And looking back, I mean, even with 68 days sober, it's embarrassing. And even though I may not deserve my daughter, I truly believe that my family does, which is why I had signed the consent to custodianship because my stepmom and my dad, they're not going to let me be there if I'm not doing what I'm supposed to be doing. And I don't know if I deserve to be [G.J.' s] mother, but she deserves to know my family. And I hope that, you know, as I continue on in treatment and my reintegration plan ... that I can turn my life around and be a good parent because I raised my son on my own for a long time and 1 was a good mom. And I had [G.J.] by myself for a year and she was always taken care of. But I didn't expect to start using meth. It was never something I did.... I can never make up for it—but do 1 hope that I can watch her grow up? Yes. I mean, does that mean I'm going to be her primary parent? No. But I'm willing to accept that, just to watch her grow up and watch her know her brother and watch her know my family because my family is amazing, even if I made the decisions I made. Do I want to be her mother? Yes, I do. And 1 always did. I just made some really bad decisions. And I regret them. I regret them. I'll regret them forever. But looking back, I know what I did wrong and I know that I could fix it. I know I can be a better person. I want that chance.”
Hoffman—who had been involved in G.J.'s case since G.J. came into state custody—recommended that the court terminate Mother's parental rights. She told the court that Mother's lack of regular contact, involvement, and motivation had prevented KVC from successfully rehabilitating the family. She said that Mother had not made efforts to change her circumstances to meet G.J.'s needs or maintained regular contact with G.J., G.J.'s custodian, or KVC.
The district court terminated Mother's parental rights. (Father's parental rights were also terminated but are not at issue in this appeal.) The court found clear and convincing evidence that Mother was unfit and that her fitness was not likely to change in the near future. The court announced from the bench that Mother had physically and emotionally neglected G.J., that Mother had failed to adjust her circumstances to meet G.J.'s needs, and that reintegration had failed, despite reasonable efforts by the Kansas Department for Children and Families and KVC. Two weeks later, in a written order terminating parental rights, the court said its finding that Mother was unfit was based on clear and convincing evidence “[t]hat reintegration has failed with either parent” and that “the parents [ ] have failed to adjust to circumstances to help take care of the minor child.” The court also held that terminating Mother's parental rights was in G.J.'s best interests and that her physical, mental, or emotional needs would be best served by termination.
The district court also denied G.J.'s maternal grandfather's request to be G.J.'s permanent custodian because he had no means to support G.J., had had limited contact with her, had a history of drug and alcohol abuse, and had not raised his own children. It also denied G.J.'s grandfather's girlfriend's request to be appointed custodian because she would have used G.J.'s grandfather as a part-time babysitter for G.J. The court gave the Kansas Department for Children and Families authority to place her up for adoption.
Mother has appealed to this court.
ANALYSIS
The District Court's Finding That Mother Was Unfit Is Supported by Clear and Convincing Evidence.
Mother stipulated that G.J. was a child in need of care. Once that determination has been made, K.S.A.2013 Supp. 38–2269(a) provides that the district court may only terminate an individual's parental rights when the party moving to terminate has shown that the parent is currently unfit, that this will likely remain so for the foreseeable future, and that it is in the best interests of the child to terminate the parent's rights. K.S.A.2013 Supp. 38–2269(a), (g)(1). In addition, a parent's rights to his or her children may be terminated only when the evidence of unfitness is especially strong—what the statute describes as “clear and convincing” evidence. See K.S.A.2013 Supp. 38–2269(a); In re B.H., No. 110,764, 2014 WL 2871433, at *3 (Kan.App.2014) (unpublished opinion). That means the evidence must show that the district court based its decision on facts that are “highly probable.” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
On appeal, this court determines whether a rational factfinder could have found it highly probable that the parent is unfit. 286 Kan. at 705; In re K.W., 45 Kan.App.2d 353, Syl. ¶ 1, 246 P.3d 1021 (2011). Because the district court, which is charged with finding the facts, ruled in favor of terminating Mother's parental rights, this court reviews the evidence in the light most favorable to that determination. In re A.P., No. 109,341, 2013 WL 4404529, at *5 (Kan.App.2013) (unpublished opinion). It may not reweigh the evidence, judge the credibility of the witnesses, or redetermine questions of fact. In re B.D.-Y., at 705.
In determining whether a parent is unfit, the court may consider a number of factors set out in K.S.A.2013 Supp. 38–2269(b) and (c), and a single such basis can be sufficient to terminate a parent's rights if supported by clear and convincing evidence. See K.S.A.2013 Supp. 38–2269(f). Here the district court found Mother unfit for three reasons: (1) because she had failed to adjust her circumstances to meet G.J.'s needs; (2) because reintegration had failed, despite reasonable efforts of KVC and the Kansas Department for Children and Families; and (3) because she had physically and emotionally neglected G.J. See K.S.A.2013 Supp. 38–2269(b)(4), (7), (8). We will separately consider each reason.
A. Mother Had Failed to Adjust Her Circumstances to Meet G.J.'s Needs.
Mother first argues that the district court had no evidence to support its finding that she had failed to adjust her circumstances to meet G.J.'s needs under K.S.A.2013 Supp. 38–2269(b)(8). Mother did have consistent contact with KVC by phone or in person from April 2013 until she consented to have the court appoint a permanent custodian in November 2013, and she took a big step toward meeting G .J.'s needs when she entered a drug-rehabilitation program in January 2014. But before moving into the rehabilitation facility, she had only been sober when she was incarcerated. And she did not have face-to-face contact with G.J. for approximately 8 months from March 2013 to November 2013 because she had failed to complete drug testing, missing 14 UAs.
In addition, by the time of the termination hearing more than 11 months after G.J. went into state custody, Mother hadn't reported any progress on some of the requirements under her reintegration plan, such as obtaining employment and paying child support. She also hadn't completed several of the tasks required under the plan-completing a parenting program, having regular face time with her daughter, and obtaining appropriate housing. Viewing the evidence in the light most favorable to the district court's decision, clear and convincing evidence supports the district court's conclusion that Mother failed to adjust her circumstances to meet G.J.'s needs.
B. Reintegration Failed Despite KVC's Reasonable Efforts.
Mother also contends that no evidence suggests KVC made an effort to reintegrate her with G.J. as required to terminate parental rights under K.S.A.2013 Supp. 38–2269(b)(7). She claims that Hoffman intentionally failed to submit paperwork to KVC requesting funding for her mental-health treatment. But Mother didn't maintain consistent contact with KVC regarding her mental-health treatment. Hoffman said that she had not requested the funding because Mother had stopped contact with KVC and that she would have submitted the paperwork if Mother would have contacted her again.
Hoffman further explained that Mother's limited motivation and involvement with KVC—which was also reflected in Mother's absence at the court hearings before she consented to a permanent custodian—prevented it from reuniting the family. Without Mother doing her part and taking UAs, KVC could not authorize visits between Mother and G.J. Here too, viewing the evidence in the light most favorable to the district court's decision, clear and convincing evidence suggests that KVC made reasonable efforts toward reintegration but that Mother failed to do her part to be reunited with her daughter. KVC cannot provide services to someone who does not show up to receive them.
C. Mother Had Neglected G.J.
The district court also announced from the bench that Mother was unfit to parent G.J. because she had physically and emotionally neglected her under K.S.A.2013 Supp. 38–2269(b)(4). The court seems to have based this finding on Mother's failure to visit her daughter for 11 months. When the court later filed a written order stating its ruling, it did not include this basis for termination. Mother contends that it shouldn't be a basis for finding her unfit because G.J. was never neglected while in Mother's care.
We do not know why the district court omitted this basis for its unfitness finding in the court's written order. But even if the court no longer intended to rely on it as a basis for terminating Mother's rights, the other grounds we have already discussed still had sufficient evidence of unfitness.
The District Court's Finding That Mother's Unfitness Was Likely to Continue for the Foreseeable Future Is Supported by Clear and Convincing Evidence.
In addition to finding unfitness, the district court also must find that the “conduct or condition” rendering Mother unfit “is unlikely to change in the foreseeable future” before it may terminate parental rights under K.S.A.2013 Supp. 38–2269(a). The “foreseeable future” is viewed from the child's perspective, not the parent's, as time is viewed differently by children and adults. In re J.A.H., 285 Kan. 375, 386, 172 P.3d 1 (2007); In re S.D ., 41 Kan.App.2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009). Here Mother argues that the requirements of her reintegration plan could have been completed within the foreseeable future.
When we look at Mother's behavior since G.J. became a child in need of care, we see that she made real progress shortly before the termination hearing. She entered drug treatment, joined a parenting class, and was in the process of applying for housing. She also accepted responsibility for her actions in her statements to the court. This court's job on appeal, however, is to see whether the record contains clear and convincing evidence to support the trial court's conclusions. And at the time of the termination hearing, G.J. had been in out-of-home placements for very nearly half of her life.
And during that time, Mother had not been able to complete a parenting class and had not taken any steps to obtain employment to support G.J. While she had applied for housing, it was not secured and would have been dependent on her sobriety. Given the time that had gone by and the substantial adjustments Mother still needed to make for G.J. to live with her, clear and convincing evidence supports the district court's conclusion that from G.J.'s perspective, the conditions leading to the court's unfitness finding were unlikely to change in the foreseeable future.
Mother may feel that this opinion seems one-sided against her. We do not mean it to be. She did put forth some effort to comply with the court's orders; it simply was not enough. Even so, some comments we made in another case are equally true here:
“Cases like this are difficult ones. A parent may be labeled ‘unfit’ under the law even though he or she loves the child and wants to do the right thing, which may be the case here. But we must judge these cases based mostly upon actions, not intentions, and we must keep in mind that a child deserves to have some final resolution within a time frame that is appropriate from that child's sense of time.” In re A.A., 38 Kan.App.2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008).
We affirm the district court's judgment.