Opinion
112,028.
01-02-2015
In the Interest of B.B., DOB XX/XX/2013, A Male.
James T. Yoakum, of Kansas City, for appellant natural father. Susan Alig, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
James T. Yoakum, of Kansas City, for appellant natural father.
Susan Alig, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDREDGE, P.J., LEBEN and POWELL, JJ.
MEMORANDUM OPINION
LEBEN, J.
S.B. (Father) appeals the district court's order terminating parental rights to his son, B.B. Father contends that the evidence was insufficient to show that he was unfit as a parent and that terminating his parental rights was not in B.B.'s best interests.
But the district court is authorized to terminate parental rights when a parent's excessive use of intoxicating liquors or drugs leaves the parent unable to care for his or her child, as well as when a parent fails to adjust his or her circumstances to meet the child's needs. K.S.A.2013 Supp. 38–2269(b)(3), (8). Father was in jail for DUI at or about the time B.B. was born, failed to comply with drug testing on probation (failing to show up for 10 of 11 tests and testing positive for cocaine when tested), and otherwise generally failed to comply with his probation, leading to a motion to terminate it. He also failed to complete several tasks aimed at getting B.B. into Father's home, including demonstrating stable employment and having stable housing. The evidence was sufficient for the district court to conclude under applicable standards that Father was unfit as a parent, that this condition was unlikely to change in the foreseeable future, and that B.B.'s best interests would be served by terminating Father's parental rights. We therefore affirm the district court's judgment.
Factual and Procedural Background
In June 2013, B.B. was born addicted to methadone and showing signs of withdrawal. Later tests showed cocaine in B.B.'s system. B.B.'s mother (Mother) already had one child in state custody and had ongoing issues with drug use. Father was in custody because of a felony DUI arrest at the time of or shortly after B.B.'s birth.
Because of these circumstances, the State filed a motion in July 2013 seeking to have B.B. declared a child in need of care. The district court entered an order of temporary custody and placed B.B. in the custody of the Department for Children and Families. After hearing evidence, the district court found that B.B. was a child in need of care. Father was given reintegration tasks that included supervised visitation, having stable housing and income, submitting to random drug testing, and completing a batterer's intervention assessment and complying with its recommendations.
According to the State's motion to terminate Father's parental rights, Father had tested positive for marijuana at his DUI sentencing. At a rescheduled sentencing, Father was placed on house arrest for the DUI charge, but that was revoked, and he served time in jail until mid-September 2013, when he was released and placed on probation. At the time of the April 2014 hearing on terminating his parental rights, Father was still on probation on the DUI conviction.
The district court held a hearing on September 11, 2013, to determine what progress the parents had made toward reuniting with B .B. Father did not attend. The court entered an order setting a trial date for an expected motion to terminate parental rights for January 14, 2014; that hearing was later reset for April 7, 2014.
At that evidentiary hearing, the State presented four witnesses: Paul York, the probation officer in Father's DUI case; Ashli Johnson of KVC Behavioral Health Care (KVC), who supervised Father's visits with B.B.; Anastasia Ramirez, the KVC case manager for Father's case; and Karen Younger, a court-services officer assigned to the case. Father, though present for the hearing, did not testify or present any other witnesses.
York had supervised Father on his DUI probation. Father was given a 12–month jail sentence in July 2013, but he was placed on probation upon his mid-September release from jail. After his release, he was supposed to report to York at least twice per month. But York said he had only seen Father “probably three times” because Father had failed to stay in contact with him. York said he had had no contact with Father at all from January 13, 2014, until the termination-of-parental-rights hearing on April 7, 2014; York said he had left messages for Father but had received no response. York reported that Father had been subject to a drug-testing requirement; Father was supposed to appear for drug testing when his code came up on a random basis. Father failed to show up for 10 of 11 tests and tested positive for cocaine the one time he did appear. York said that Father had been arrested for domestic battery and disorderly conduct on March 27, 2014.
York reported that a motion was pending in Father's criminal case to revoke his probation. York said he was recommending termination of the probation—and that Father serve the remainder of his jail sentence-because Father had failed to comply with “basically every” probation requirement.
Johnson supervised Father's visits with infant B.B. She said that Father had appropriately interacted with the child but had engaged in other inappropriate behavior at visits. On one occasion, as the visit was winding down, Father was sitting next to Johnson and flipping through photos of the child's mother on his phone. Johnson told him she didn't want to see the photos. Father proceeded to show her a photo of the mother in an outfit that displayed her breasts and another photo that showed her in underwear. Father also used vulgar profanity to refer to the circumstances of the child's birth. Johnson considered these behaviors inappropriate.
Ramirez served as the overall case manager for KVC. She said that Father generally handled visits with B.B. well except for inappropriate behavior and missing three visits. She also described an incident when Father showed up for a visit Ramirez didn't believe was scheduled. She told Father to leave, but he tried to physically take the child's car seat from the foster mother. Ramirez reported some additional issues: Father had refused her request for two drug tests; Father had failed to complete many of the court's orders in this case; Father had failed to start a batterer's intervention program after getting an assessment even though “he discussed [with her] that he would start the course”; and he had provided no evidence of either stable income or stable housing. Ramirez said that she believed termination of his parental rights was in B.B.'s best interests.
Younger, the court-services officer assigned to this case, had requested drug testing from Father on four occasions; Father failed to show up for each of them. She noted that Father had also been involved in child-in-need-of-care proceedings for Mother's older child—proceedings that were underway before B.B.'s case began—because Father was Mother's boyfriend. Accordingly, she had been able to observe his behavior in such proceedings for about 18 months. Younger recommended termination of his parental rights to B .B.
After considering the evidence, the district court ruled from the bench that it had not “had a case where the evidence really has been more clear.” The district court determined by clear and convincing evidence that Father was unfit under K.S.A.2013 Supp. 38–2269(b)(3) (excessive use of liquor or drugs that renders the parent incapable of caring for the child), (b)(7) (the failure of reasonable social-service-agency efforts to rehabilitate the family), (b)(8) (lack of effort by the parent to adjust his or her circumstances to meet the child's need), and (c)(3) (the failure of a reasonable court-approved plan to get the child into the parent's home). The court also concluded that Father's unfitness was unlikely to change in the foreseeable future and that termination was in B.B.'s best interests. Based on these findings, the court terminated Father's parental rights.
Father has appealed to this court.
Analysis
On appeal, Father disputes the idea that he was unfit and maintains that the State did not make reasonable efforts toward reintegration. Father acknowledges that he has issues with alcoholism and drug abuse but claims that his grandparents could step in and provide stability for B.B. Father admits that he failed to complete many of the tasks the district court gave him but claims that most parents could not comply with them either. He says that he is unfit only by “white, middle-class standards of proper parenthood.”
We begin our analysis with the legal standards that guide our review. To terminate parental rights, the district court must make three findings: (1) that the parent is unfit; (2) that the conduct or condition making the parent unfit is unlikely to change in the foreseeable future; and (3) that termination of parental rights is in the best interests of the child. K.S.A.2013 Supp. 38–2269(a), (g)(1).
The first two are factual determinations that must be supported by clear and convincing evidence. On appeal, we must determine whether the evidence, taken in the light most favorable to the State (since the factfinder, the district court, found in its favor), provided clear and convincing support for the district court's factual findings. The test on appeal is whether a rational factfinder could have found the facts highly probable based on the evidence. In re R.S., Kan. –––, –––– Syl. ¶ 1, 336 P.3d 903 (2014).
The third determination—that termination of parental rights is in the child's best interests—is a discretionary judgment call. On appeal, we review that determination for abuse of discretion. A district court abuses its discretion when no reasonable person would agree with its decision or when the decision is based on a legal or factual error. In re R.S., Kan. –––, –––– Syl. 12, 336 P.3d 903.
We turn now to the evidence supporting the district court's unfitness finding. Much of the evidence related to Father's recurrent issues with alcohol and drugs. Father was on probation for a felony DUI offense, so we know that it was at least his third conviction. Father tested positive for cocaine while on probation and skipped almost all of his required drug tests. York said that Father failed to comply with most of his probation requirements. Significantly, this was while Father was seeking to maintain parental rights to B.B. Yet by failing to comply with even basic probation requirements (like reporting to York), the district court noted that Father was “risking jail the entire time.” Father was required to complete a substance-abuse assessment as a condition of his probation, but York did not believe that Father had obtained any substance-abuse treatment.
Obviously, to have B.B. living with him, Father would need a suitable place for the two of them to live together. The court-approved reintegration plan required that Father find stable housing, but at the time of the termination hearing, Father was living with his grandparents (although he reportedly did not want to stay there). Significantly, the community where the grandparents lived did not allow children.
Father had a similar lack of success with the requirement that he demonstrate a stable income. Ramirez asked Father for pay stubs many times. He usually said that he had them but had forgotten to bring them to meetings. Father promised to have them at the termination hearing but did not do so.
While Father did appear for visits with B.B., the visitation supervisor, Johnson, did not notice a special bond between Father and his son; B.B. was good-natured around everyone. In addition, Ramirez testified that Father appeared to be more focused on Mother and his relationship with her than on B.B.
To be sure, Father did take some positive steps. He completed an online parenting course. He also completed a batterer's assessment, but he failed to start the 30–week course that was recommended as a result of the assessment. Overall, however, clear and convincing evidence supports the district court's unfitness findings under K.S.A.2013 Supp. 38–2269(b)(3), (b)(7), (b)(8), and (c)(3).
The district court's finding that Father's unfitness was unlikely to change in the foreseeable future was also supported by clear and convincing evidence. The foreseeable future is viewed from the child's perspective, not the parent's, as time is viewed differently by children than by 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).
Father's substance-abuse problems showed no sign of diminishing any time soon. He had received what was at least his third DUI conviction at about the time of B.B.'s birth, and upon release from jail he had tested positive for cocaine, skipped more than a dozen drug tests, and failed to enroll in any substance-abuse treatment. Nor had Father made any progress in having a living place that B.B. could reside in or demonstrating the financial ability to support a child.
We note that the time frame Father was given here was relatively short. B.B. went into State custody in July 2013, and the termination hearing was held in April 2014. But Father had nearly 7 months after his release from jail on the DUI conviction to work toward having B.B. with him. He did not make substantial efforts during that time, and what he did—and didn't—do gave no indication that he would perform better in the future. In fact, as the district court noted, Father continually risked going back to jail for his probation violations throughout this time period.
The district court's final conclusion—that termination of Father's parental rights was in B.B.'s best interests—was a judgment call that a reasonable person could make; thus, it was not an abuse of discretion. B.B. had been in State custody for most of his life at that point, and he would have needed to remain in State custody for even longer if the court had given Father additional opportunities to get in the position to parent B.B. Father had done little during the pendency of the case to justify additional opportunities.
We appreciate Father's argument that the requirements placed upon him may not all be necessary to make him a good parent. Perhaps some were not. But the ones discussed in this opinion all were central to his ability to be a parent to B.B. Father needed to comply with his probation order to stay out of jail. He needed to quit the excessive use of alcohol and the use of illegal drugs for the same reason, as well as for his own long-term health. He had been involved with the child-welfare system before B.B.'s birth as the Department for Children and Families worked with him and B.B.'s mother regarding her other child, so the steps and behaviors the court system would require of a parent were not new concepts to him when B.B. was born.
We must base our decision on a review of the trial court's rulings, and it had to judge Father based on his actions. Those actions may not line up with his intentions or reflect his love for his son. We close our opinion by noting some comments we made in another case, which are true here as well:
“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.