Opinion
112,712 112,713.
05-15-2015
In the Interest of E.T. and R.T., Minor Children Under the Age of Eighteen.
Darrell L. Smith, of Olathe, for appellant natural mother. Jason A. Oropeza, assistant county attorney, Elizabeth Sweeney–Reeder, county attorney, and Amy C. Winterscheid, guardian ad litem, for appellee.
Darrell L. Smith, of Olathe, for appellant natural mother.
Jason A. Oropeza, assistant county attorney, Elizabeth Sweeney–Reeder, county attorney, and Amy C. Winterscheid, guardian ad litem, for appellee.
Before HILL, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal of a district court order terminating the parental rights of B.S., who is the mother of two—E.T., bom in 2003, and R.T., bom in 2005. Because we find clear and convincing evidence that supports the district court's ruling, we affirm.
The case history reveals a chaotic home life for the children.
In October 2011, the State filed petitions concerning E.T. and R.T., alleging they were children in need of care. In the application for ex parte order of protective custody, the State alleged there was an extensive history of domestic violence between Mother and Father. Records indicated the children witnessed their parents' fights dating back to July 2007. During the most recent fight, E.T. was injured when Father threw a glass fish bowl at Mother. Mother, E.T., and R.T. were lying in bed when Father threw the fish bowl. It hit E.T. in the back of the head and shoulder and E.T. said the bowl “shattered” when it hit her. E.T. had a round lump on the back of her head and a bruise on her back near her upper right shoulder and E.T. reported that her injuries hurt. R.T. said he only heard the bowl being thrown because he covered himself with a blanket so he would not get hurt by the glass. E.T. said her parents fought again the next morning. Father pushed Mother down and shoved his foot in her face. E.T. tried to help Mother, but Father slapped E.T. on the cheek. E.T. said her parents fight often, and they push and shove each other. R.T. also witnessed the fight in the morning; he saw Father spit in Mother's face. He also said Father spits on Mother “all the time.”
E.T. reported Father yells at her and hits her “ ‘all the time.” ’ E.T. said Father does not hit R.T. because he is too small. However, in 2008, there was a report of alleged physical abuse of both children. E.T. had a black eye and scratches and bruises on her torso. R.T. had deep scratches on his buttocks. E.T. reported Father hit R.T. in the head because he jumped on the bed. R.T. reported he had seen Father smack E.T. in the face.
The district court found that an emergency existed which threatened the safety of the children, the children were likely to sustain harm if not immediately removed from the home, and remaining in the home would be contrary to the welfare of the children. An ex parte order was issued and E.T. and R.T. were placed in protective custody.
An adjudication hearing was held in October 2011. An initial drug screen revealed that Mother tested positive for amphetamines and methamphetamines. The district court ordered Mother to submit two clean urinalysis tests before visitation could occur. Then, in November 2011, there was a case planning conference where Mother was issued a permanency plan with a goal of reintegration. Reintegration remained the goal until the State filed a motion for finding of unfitness and termination of parental rights on May 19, 2014.
The court attempted reintegration of Mother and children.
As part of the reintegration plan, Mother agreed to obtain and maintain appropriate housing, transportation, and employment. Mother struggled to complete these tasks. There was a lot of damage done to the family home because a door was ripped off during an argument. One Kaw Valley Center case worker testified, “It wasn't the best condition home I've ever been in, but it wasn't ... the worst.” The KVC case worker further testified there was a rabbit in the home that was not kept in the cage. She said there was a strong odor of animal urine, and there was an issue with fleas. A visit had to be canceled during the winter because the heat had been turned off at the home. Eventually Mother moved in with her boyfriend's parents. Their home was appropriate for visitation but not for reintegration because there was not an additional bedroom. While Mother was living with her boyfriend, the record seems to indicate she also maintained her family home.
The case worker testified:
“[Mother] maintained her house throughout that time, but her electricity was turned off in March of 2014, and her water was turned off, and the house was ... labeled as ‘not able to dwell in.’ I mean, she had her possessions still in it, but she wasn't able to stay there.”
When asked if Mother currently had housing, the worker testified she did not. Mother generally had transportation, but her driving license was suspended at one point. Also, in March 2014, Mother lost the vehicle she was using because the vehicle belonged to her boyfriend, who was arrested and incarcerated. Mother's employment was sporadic. She reported that she was employed, but she failed to provide documentation.
Mother and Father were allowed supervised visits with the children, but they did not exhibit any of the skills learned in the Strengthening Parents program. The visits changed to unsupervised in March 2012. After one unsupervised visit, however, the electricity was turned off in the home and the visits were moved to the Department for Children and Families. When the visits were changed back to supervised, there were separate visits for Mother and Father. Mother's visits eventually changed from supervised to monitored visits. There were unsupervised, overnight visits as well. One KVC case worker testified that in February 2013, KVC received information that the children stayed the night in an unapproved home. The district court eventually ordered supervised visits again in March 2013.
The State seeks severance of parental rights.
The evidence revealed that Mother did not interact appropriately with her children. Mother would share things with the children about the case or negative things about Father. On one occasion, Mother told the children that while she was helping Father clean his house, Father's girlfriend came over and was not happy to see Mother. The girlfriend pulled a gun on Mother, Father got the gun away from the girlfriend, and then Mother “ ‘stomped her face.” ’ The children were worried after hearing this story. R.T. was really upset because he believed Father did not try to help Mother and he was afraid Mother was going to die.
Mother submitted urine samples that tested positive. In addition to the initial drug screen, Mother tested positive for illegal substances on November 23, 2011, April 20, 2012, and July 6, 2012. Mother admitted using methamphetamine in February 2012 and again in January 2014. Mother tested positive for methamphetamine and amphetamine on August 14, 2014, which was the first day of the termination hearing.
Jamie Payne, a KVC case worker for approximately 8 years, testified at the termination hearing. Based on her training, experience, and involvement in this case, Payne was asked what she believed was in the best interests of the children. Payne believed it would not be in their best interests to go home. She explained, “Because the parents have made little to no change in the almost seven years that the kids have been in and out of custody. They can't provide—or haven't demonstrated an ability to provide a home or stability for these kids.” In a prior conversation with R.T., Payne asked him what he wanted. Payne, R.T. and E.T. were present for the conversation. R.T. expressed a desire to go home with Mother and Father. Payne responded, “I like your mom and I like your dad, but if I were to send you home, where would you live?” E .T. then answered for R.T. and said, “ ‘On the street.” ’ On other occasions E.T. told Payne, “ ‘Mom says things to me that I'm not supposed to know.” ’ Payne has also heard E.T. tell R.T. that Mother and Father need to get a house and a job.
Additional case tasks discussed were as follows:
• “ ‘Parents will participate in couples counseling and follow all recommendations if they decide to remain a couple. If they decide to separate, they will participate in some form of mediation and/or co-parenting program.” ’
• “ ‘[Parents] will complete budgets as requested by KVC.” ’
• “ ‘Parents will attend individual therapy and follow all recommendations.” ’
• “ ‘Parents will complete the Strengthening Families program.” ’
• “ ‘Parents will not shame or blame any person or agencies.” ’
• “ ‘[P]arents [will] provide KVC with documentation of their completed case plan tasks.” ’
While making its decision, the district court addressed these as well as the previously mentioned tasks. Mother completed the individual therapy and the Strengthening Families program tasks. The district court found no evidence that the couples therapy and budgeting tasks were completed. However, there was testimony that family therapy had not been started and budgets were not always requested. The district court also correctly found that blaming persons or agencies was an ongoing problem in this case. Additionally, Mother failed to provide documentation of completed case plan tasks.
At the time of this hearing, the case had been pending for almost 3 years. The children were never returned to either parent during this time. They were placed with their paternal aunt and uncle. KVC discussed reintegrating the children with Mother in December 2013. But Mother was not employed, her boyfriend had been arrested and incarcerated, her electricity had been shut off, she lost her house, and there was the incident involving Father's girlfriend and the gun. After considering the circumstances, KVC determined it would not be safe to place the children in the home with Mother. The children remained in the care of the paternal aunt and uncle and were doing well in their home.
After hearing testimony and reviewing the evidence, the district court found by clear and convincing evidence that Mother was unfit to properly care for E.T. and R.T. The district court found that the conditions of the unfitness on the part of Mother were unlikely to change in the foreseeable future. The district court concluded it was in the best interests of the children to terminate Mother's parental rights.
Mother contends there was insufficient evidence to find her unfit as a parent.
Mother argues there was insufficient evidence to support the district court's decision to find Mother unfit. Mother further contends the district court abused its discretion by erroneously relying on evidence that was not part of this case and finding that termination was in the best interests of the children.
What the State had to prove here is clear. If children are adjudicated children in need of care, parental rights may be terminated 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.2014 Supp. 38–2269(a). The Revised Kansas Code for Care of Children, K.S.A.2014 Supp. 38–2201 et seq. , lists a number of nonexclusive factors the district court must consider in determining a parent's unfitness. See K.S.A.2014 Supp. 38–2269(b) and (c). Any one of the factors may, but does not necessarily, establish grounds for terminating a parent's rights. See K.S.A.2014 Supp. 38–2269(f). The district court is not limited only to the statutory factors in making a determination of unfitness. See K.S.A.2014 Supp. 38–2269(b).
When reviewing a district court's findings on this point, our standard of review is clear: The district court's findings must be supported by clear and convincing evidence. K.S.A.2014 Supp. 38–2269(a). We determine whether such evidence could have convinced a rational factfinder that such facts were highly probable, i.e., by clear and convincing evidence, when viewed in the light most favorable to the State. In making this determination, we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. See In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
We review the court's decision.
The district court found Mother unfit based on the following statutory factors:
• Mother failed to carry out a reasonable plan directed toward reintegrating the children back into her home, satisfying K.S.A.2014 Supp. 38–2269(c)(3).
• This failure occurred despite the reasonable efforts of DCF and KVC, satisfying K.S.A.2014 Supp. 38–2269(b)(7). Specifically, the district court found that the services provided included case management, the Strengthening Families program, providing financial assistance with utility bills, and providing the initial period of substance abuse treatment.
• The result of Mother's failure to carry out the tasks was that the children had been out of the home for 34 months, satisfying K.S.A.2014 Supp. 38–2269(b)(9).
• The district court found the State had proved its case by clear and convincing evidence except for Mother's ability to pay, despite the fact Mother did not provide much financial support.
In our view, the district court's findings of unfitness are supported by clear and convincing evidence. The district court heard evidence regarding the abusive and volatile relationship between Mother and Father. The district court also had reports of the allegations of the abuse against the children. The district court heard testimony that for almost 3 years agencies worked with the family to reintegrate the children. There was also a previous child in need of care case where the children were placed in custody in Johnson County. In the Johnson County case, the parents were given case plans with similar tasks to those in the current case. The children were placed back in the home in July 2010 and released from custody in October 2010. The children were at home for only 15 months before they were removed from the home in the current case.
K.S.A.2014 Supp. 38–2271(a) provides:
“It is presumed in the manner provided in K.S.A. 60–414, and amendments thereto, that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes, by clear and convincing evidence, that:
“(6)(A) the child has been in an out-of-home placement, under court order for a cumulative total period for two years or longer; (B) the parent has failed to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home; and (C) there is a substantial probability that the parent will not carry out such plan in the near future.”
K.S.A.2014 Supp. 38–2271(b) provides:
“The burden of proof is on the parent to rebut the presumption of unfitness by a preponderance of the evidence. In the absence of proof 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, the court shall terminate parental rights in proceedings pursuant to K.S.A.2014 Supp. 38–2266 et seq., and amendments thereto.”
The district court made the requisite findings provided by K.S.A.2014 Supp. 38–2271(a)(6). Mother failed to overcome this presumption, and the district court terminated her parental rights.
The district court addressed the positive steps Mother took toward reintegration. Mother demonstrated some stability; however, this was completely dependent on her boyfriend. When the boyfriend was incarcerated, Mother's situation “deteriorated rapidly.” Mother completed her individual counseling and her therapist then discharged her from therapy. Mother also successfully completed the required Strengthening Families program. Mother was consistent in attending her visits. Mother participated in drug and alcohol treatment until the KVC provider left.
The district court noted the majority of the testimony focused on whether Mother was successful in completing her case plan tasks. The district court stated that, in general, the tasks did not change much, with the exception of the addition of Mother's boyfriend when they were residing together. The district court addressed the following factors in determining Mother's unfitness: the lack of appropriate housing; the lack of employment; the issues with transportation, including the lack of driving licenses at the time of the hearing; the failure to complete couples counseling or coparenting classes; the positive drug test results; the lack of budget submissions; the ongoing problem of blaming agencies for the situation; Mother's questionable behavior during visits; and the failure to provide documentation of completed tasks.
There was clear and convincing evidence to support the district court's determination that Mother was unfit by a reason of conduct or condition, which rendered her unfit to care properly for her children, and her conduct or condition was unlikely to change in the foreseeable future.
We next look to see if there was clear and convincing evidence that indicated Mother was unlikely to change in the foreseeable future. See K.S.A.2014 Supp. 38–2269(a). The term “foreseeable future” is measured from the child's perspective and takes into account a child's perception of time. This court has considered periods of time as short as 7 months to be the foreseeable future from a child's perspective. See In re S.D., 41 Kan.App.2d 780, 790, 204 P.3d 1182 (2009). A court may predict a parent's future unfitness based on his or her past history. In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982).
In this regard, we consider the 34 months the children spent in State custody to be significant. Three years without a home is a long time for a young child. Mother had considerable involvement with DCF and KVC. There were clear case plans in place, but Mother continuously failed to complete the tasks. The district court may predict Mother's future unfitness based on her history. There was clear and convincing evidence to support the district court's determination that Mother's behavior was unlikely to change in the foreseeable future.
Our last consideration is whether the district court correctly determined that terminating Mother's parental rights was in E.T.'s and R.T.'s best interests. K.S.A.2014 Supp. 38–2269(g)(l) provides that even after a finding of unfitness, the district court must determine whether the termination of parental rights is in the best interests of the children.
We must point out that because it hears the evidence directly, the district court is in the best position to determine the best interests of the children, and an appellate court cannot overturn it without finding an abuse of discretion. In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied 291 Kan. 911 (2010). An abuse of discretion occurs when no reasonable person would agree with the district court or when the court bases its decision on an error of fact or an error of law. In re R.S., 50 Kan.App.2d 1105, Syl. ¶ 2, 336 P.3d 903 (2014).
The district court acknowledged it was clear from the testimony that R.T. wanted to go home with Mother and Father. The district court further addressed, “It is also clear that [E.T.] knows a lot more than a girl her age should when she tells her brother that her parents need to get a house and get a job. [E.T.] understands that there is no home for mom and dad.” The district court also discussed Payne's testimony that the children have been in and out of custody for the past 7 years. The only stability in the children's lives had been provided by the paternal aunt and uncle, with whom the children currently reside. The district court held it was not in the best interests of the children to delay permanency. The district court found:
“A child should not think her father is mad at her for expressing her feelings about being in custody for so long.... A child should not know that her mother was faced by a gun, held by her father's girlfriend. A child should not have to tell her little brother that her parents need to get a job and a house.”
The district court held that Mother was not likely to change her conduct or condition in the foreseeable future—Mother was unwilling or unable to change, and she demonstrated this throughout the entire case. The district court found by clear and convincing evidence that Mother could not meet the physical, emotional, or mental needs of the children. The district court found that reintegration with Mother was no longer a viable alternative and it was in the best interests of the children to terminate Mother's parental rights. Nothing in the record on appeal creates any doubt about the correctness of the district judge's decision.
The district court's decision to find Mother unfit was supported by clear and convincing evidence, and the district court did not abuse its discretion by terminating her parental rights.
Affirmed.