Opinion
No. 112104.
02-20-2015
In the Interest of P. J., I. J., and M. J., Minor Children Under the Age of Eighteen.
Raymond E. Probst, Jr., of the Probst Law Firm, P.A., of Kansas City, for appellant. Ashley Hutton, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Raymond E. Probst, Jr., of the Probst Law Firm, P.A., of Kansas City, for appellant.
Ashley Hutton, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Before HILL, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
R.D. is the natural mother of three children. The Wyandotte County District court terminated R.D.'s parental rights to all three children: P.J., born in 2013, I.J., born in 2012, and M.J., born in 2010. Mother appeals the court's ruling. We find clear and convincing evidence that supports the district court's decision and we affirm.
The State filed petitions alleging the three were children in need of care after Mother had admitted herself to the psychiatric unit of a local hospital for treatment of her psychosis. Mother has a history of voluntary and involuntary psychological hospitalizations and substance-induced psychoses resulting from her history of using various drugs, such as PCP, marijuana, K–2, and possibly other drugs. Social workers from the Department for Children and Families met with Mother during her hospitalization and after her release from the hospital. Mother reported that she had a mental breakdown about once a year and she had been hospitalized for psychiatric issues in the past. DCF offered substance abuse treatment through DCCCA services to Mother and she agreed to cooperate with the agency; social workers had previously referred Mother to that agency, but she had failed to engage in services. Sometime during this period, P.J. was born.
Shortly thereafter, Mother failed to appear at a scheduled meeting with DCF; Mother's great-grandmother was caring for the children at the time. Efforts to contact Mother were unsuccessful. The great-grandmother also had been unable to contact Mother; she reported that Mother tended to leave the children with family members and neglect their needs while she was with A.J., the father of two of the children.
We note that DCF has had prior contacts with Mother. During these times in 2012, DCF noted concerns with Mother's lack of stability in her mental health and physical abuse of the older children. There also had been reports of domestic violence between Mother and A.J.
In light of the Mother's lack of cooperation and history with DCF, the State filed a child in need of care petition asking that the court grant DCF legal and physical custody of the three children. The State alleged that an emergency existed due to Mother's drug usage and her unknown whereabouts. In addition, the State was concerned about Mother's newborn child, P.J. The court issued an ex parte order removing the children from Mother's great-grandmother's home and placed the children in DCF custody. Following a hearing, the court ordered the children remain in DCF custody; the court permitted Mother supervised visits with the children.
During the adjudication hearing, Mother stipulated to the allegation that the children were in need of care. The court so found. The court directed that any visitation by the parents be supervised and directed the parents to complete the KVC assessment and follow its recommendations. Mother was also ordered to submit to random UA's and to undergo a substance abuse and parenting assessment. She was also ordered to comply with any mental health treatment recommendations. The court directed both parents to obtain and maintain stable income and housing. Mother ultimately underwent a psychosocial assessment. She was diagnosed with schizoaffective disorder and psychotic disorder NOS.
At the July 2013 permanency hearing, the court found that the reintegration of Mother and children was still possible. The court reaffirmed its prior orders and directed the parents to contact the court services officer monthly and provide any changes in contact information. The court ordered both parents to obtain batterer's assessments. The court issued additional orders directed at the father. The court suspended visitations with the children in August 2013 because of the level of trauma the older two children were experiencing during those meetings—the children refused to interact with Mother and threw tantrums or cried inconsolably. After her visits were suspended, Mother did not inquire on the well-being of her children, nor did she request that her visits be reinstated.
Then, in October 2013, the State moved to terminate both parents' rights to the children. With respect to Mother, the State asserted that although Mother reported she had stable housing and income, mail sent to her address had been returned and she had provided no verification of her income. Mother also had failed to complete a RADAC assessment, parenting assessment, and a victim assessment. Mother also had failed to show DCF that she was complying with her mental health treatment recommendations; nor had she completed a batterer's assessment. In addition, Mother had failed to submit any UA's when requested.
After the motion for termination was filed, Mother took some positive steps toward improvement. She reported to Wyandot Center for medication management. She completed assessments for domestic violence, Safe Kids, mental health, parenting, and batterer's intervention. She provided a series of urine samples, all with negative results except for drugs for which she had a prescription. However, when KVC attempted to restart visits, Mother cancelled the visit because of an appointment for housing. Later visits between Mother and M.J. with the child's therapist were positive, although M .J. showed increased acting-out behaviors in the foster home after visits with Mother. Mother completed her assessments. The therapist recommended Mother participate in the Safe Kids program with group, individual, and family therapy. She completed several sessions in this program before she stopped attending.
The court held a termination hearing. The fathers did not appear at the hearing, and their attorney did not object to a proffer of evidence regarding their circumstances. After the State's proffer, the court terminated the father's rights to P.J. and I.J. and the unknown father's rights to M.J.
In turn, Mother requested a continuance of the hearing. Mother's counsel reported that although Mother had recently been in the state hospital, she was very close to coming into compliance with all of her court orders and that if she were given 30–60 days, she could come into full compliance. The State objected because Mother had a “severe backslide recently” and giving her additional time was not in the best interests of the children. The court denied Mother's request for a continuance.
The State proffered the testimony of Mother and a family therapist. The State also asked the court to take judicial notice of the involuntary commitment cases involving Mother from 2009, 2013, and 2014. Mother testified that she presently was working intermittently at a local restaurant, but her work hours were not regular. She did apply for social security disability the day before the trial, although she gave no projection as to whether she would qualify for benefits. She was living with her uncle in Kansas City, Kansas; A.J. and two other people were also living in the home. Mother also reported that she was on a waiting list for an apartment with the Missouri Housing Authority. She testified that the maximum wait time was about 6 months. She was not seeking subsidized housing from the Kansas City, Kansas, agency because she owed it $2,000. She started the Safe Kids program but did not complete it because she missed too many classes. She was scheduled to restart the 6–month program soon.
Mother testified that she had completed her RADAC, parenting, batterer's, and domestic violence assessments and provided confirmation to social workers. Mother testified that she had been released from Osawatomie State Hospital 2 weeks prior to the trial. She had been there 2 weeks because she was not taking her medication. She stated that she takes her medication “when I start to feel like something really bothering me.” Mother admitted that she had been committed to a hospital because of mental illness three times in the last 5 years. Each hospitalization was a result of her failure to take her medication.
The State also presented the testimony of Regina Singleton, a therapist, and a licensed master level social worker for 30 years. Singleton met with Mother on five occasions to complete a Safe Kids assessment, which includes a parenting, domestic violence, and mental health evaluation. Singleton noted that Mother had a significant mental health history of psychiatric hospitalizations involving psychotic behaviors. Accordingly, Mother needed to be involved in case and medication management through Wyandot Center to ensure she stayed on her medication; Mother was stable when on her medication and that was necessary for her to function as a parent.
In addition, again, according to Singleton, Mother needed to be in the Safe Kids program due to her history of physical roughness with the children and leaving the children at different places with different people. Singleton confirmed that Mother had been suspended from the Safe Kids program and that she was scheduled to restart the program; Mother missed eight sessions, four of which were due to her recent hospitalization. She testified that Mother was not taking her psychotropic medication regularly before the trial, which is probably why she was sent to Osawatomie State Hospital. Singleton opined that because of Mother's history of not staying on her medication or maintaining stability for a significant period of time, she did not know how or when the children would be safe in Mother's home.
Singleton has visited with all of the children and worked primarily with M.J., the oldest. Singleton noted that the youngest, P.J., has a lot of developmental delays including speech problems. All of the children had eating problems. M.J. especially had extremely negative reactions during visitations, and she feels very insecure because of the lack of stability in her past. M.J. would overeat when she was stressed due to changes in routine.
Singleton testified that it was not in the best interests of the children to place them with Mother if she was not able to maintain her own mental health needs. Based on Mother's history and her statements that she did not want to take her medication, Singleton opined that Mother would not likely change in the foreseeable future with respect to taking care of her mental health needs.
Mother called her own mother (Grandmother) to testify during the trial. Grandmother testified that since Mother's last release, she had been going to Mother's home daily to check on her and ensure she has taken her medication. Grandmother testified that she planned to continue checking on Mother every day. Grandmother worked part-time as a nurse and lived near Mother. Grandmother also reported talking regularly with Mother's uncle with whom she resides to encourage him to make sure Mother takes her medication.
The court found that the State had met its burden of proof by clear and convincing evidence. The court found that Mother suffered from an emotional illness, mental illness, or mental deficiency of such duration or nature that rendered her unable to care for the ongoing needs of the children. The court also found that social service agencies had made reasonable efforts to rehabilitate the family and that Mother has failed to carry out an approved plan aimed at reintegrating the family. Consequently, the court found that Mother was unfit and that her condition was unlikely to change in the foreseeable future. In addition, the court found that termination of Mother's parental rights was in the best interests of the children.
On appeal, Mother contends the State failed to prove by clear and convincing evidence that she was unfit and unlikely to change in the foreseeable future. Mother argues that she had completed many of the required assessments and was putting forth effort to comply with the court's orders. She cites her efforts at working, obtaining social security disability, and finding housing. She also relies on Grandmother's testimony that she will ensure Mother stays on her medication.
Our review reveals the district court is correct.
It is fundamental that when 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 establish grounds for terminating a parent's rights. K.S.A.2014 Supp. 38–2269(f).
When reviewing a district court's findings on such questions, 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 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. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
Mother's arguments that the State failed to prove she was unfit are unpersuasive. The children were placed in DCF custody due to Mother's frequent psychiatric hospitalizations, her choices in leaving her children with her family members rather than caring for them, and her lack of stability—both psychologically and financially. Mother made little progress in complying with the court's requirements until the motion to terminate was filed on October 28, 2014. While Mother completed most, if not all of the assessments, she missed Safe Kids classes and stopped taking her psychotropic medication, resulting in yet another mental health hospitalization.
By her own admission, Mother stated at the trial that she takes her medication “when I start to feel like something really bothering me.” This is directly contrary to the requirement that she take her medication every day. Even though Grandmother promised to monitor Mother to ensure she was taking her medication, that is insufficient to ensure Mother is likely to change her behavior in the foreseeable future. Mother also argues that the court erred in finding it was in the children's best interests to terminate her rights. She argues that because she would be capable of caring for them in the reasonably foreseeable future, it was in the children's best interests to preserve their relationship.
We must comply with the law's mandate that courts “acknowledge that the time perception of a child differs from that of an adult” and resolve these cases without unnecessary delay. See K.S.A.2014 Supp. 38–2201(b)(4) ; In re L.B., 42 Kan.App.2d 837, 842, 217 P .3d 1004 (2009), rev. denied 289 Kan. 1278 (2010). Based upon “child time,” there is ample evidence that the likelihood Mother's condition will change is not within the foreseeable future.
Because it hears the evidence directly, the district court is in the best position to determine the best interests of the child, and an appellate court cannot overturn this determination 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 record establishes that the children do not have a strong bond with Mother and, at least initially, react extremely negatively to visitations with Mother. According to the family therapist, all of the children, especially M.J., need stability that Mother is not able to provide. Therefore, the court did not abuse its discretion in finding that terminating Mother's rights was in the best interests of the children.
Affirmed.