Opinion
112,909.
07-31-2015
In the Interest of W.H., V.H., T.H., and A.H.
Richard P. Klein, of Olathe, for appellant natural father. Shawn E. Minihan, assistant county attorney, and Stephen M. Howe, district attorney, for appellee.
Richard P. Klein, of Olathe, for appellant natural father.
Shawn E. Minihan, assistant county attorney, and Stephen M. Howe, district attorney, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal from the district court's order terminating the parental rights of Father to his four children. Father contends the district court erred in two procedural matters; the claimed denial of his right to counsel and the denial of his request for a continuance of the trial. He also contends there was insufficient evidence to support the district court's findings that he was unfit as a parent and that his unfitness was unlikely to change in the foreseeable future. In our analysis of this third issue we view the evidence in the light favoring the prevailing party below. Accordingly, our recounting of the essential facts will be in the light favoring the State, the prevailing party before the district court.
Father has four children bom of two separate women. The children were ages 9, 8, 1, and an infant bom during these proceedings. One of the mother's rights were terminated and the other mother executed a permanent custodianship, but they have not appealed.
In October 2012, the State sought to have the children declared children in need of care (CINC). This action was precipitated by a report from school to the Kansas Department for Children and Family Services (DCF) that Father may have been physically abusing the children. There were additional concerns relating to domestic violence between Father and mother in the home, lack of supervision of the children, drugs in the home, and the suitability of the living conditions. It was reported that the family had three opossums living in the bathtub who left feces in the shower. The school counselor reported that the oldest child came to school extremely dirty. The staff helped her clean up and brush her teeth. When they did so, her gums bled like she had not brushed her teeth in a long time. Further, she needed glasses for school, and she had an inhaler but did not have the medication for it. A home visit by DCF and officers from the Johnson County Sheriff's Department corroborated some of the allegations about the family living conditions. Father refused to take a drug test at DCF's request.
The district court found that an emergency existed and placed the children in the temporary custody of DCF. The court noted that services had been offered to the family, but the family refused.
The youngest child was bom in November 2012 after these proceedings commenced.
In January 2013, the three oldest children were adjudicated CINC's. The court placed the 9–year–old and the 8–year–old with their mother. The 1–year–old was placed in the home of Father and this child's mother. The court ordered “maintenance at home plans” for all of the children. Father was ordered to obtain anger management counseling in addition to complying with the tasks set out in the home maintenance plan.
In April 2013, the State commenced separate CINC proceedings for the newborn fourth child. This child was also placed in the temporary custody of DCF. The court issued a no-contact order prohibiting Father from having contact with his children or with the mother of the two youngest children.
In August 2013, the mother of the two older children consented to her mother and stepfather being appointed permanent guardians for her children.
In November 2013, the youngest child was declared to be a CINC. Father was given a 6–month reintegration plan that applied to all of his children. Father appealed this CINC finding. We affirmed the district court's finding that this youngest child was a CINC in In re A.H., 50 Kan.App.2d 945, 334 P.3d 339 (2014).
In April 2014, the State moved to terminate Father's parental rights to all four children.
A month before trial, in September 2014, Father's counsel moved for leave to withdraw. After a hearing, the district court denied the motion and trial was set for October 2014.
On the day of trial, Father moved for a continuance in order to obtain new counsel. His request was denied. Father disagreed with his counsel's trial strategy. Father wanted to call the children to testify at trial, but his counsel thought this was a terrible idea. Counsel remained on the case and represented Father throughout the course of the proceedings. But to appease Father regarding the conflict on trial strategy, the court allowed Father to examine or cross-examine the witnesses. Father insisted on calling the children as witnesses. The court allowed Father to do so, but the court asked the children the questions that Father had provided to it.
Lisa Knight, the primary KVC Behavioral Healthcare, Inc., case manager for the children from May 2013 through September 2014, testified that during this period Father had threatened KVC personnel at the Lenexa office and at the Topeka office. Father was barred from the KVC premises. Knight was willing to meet Father in a public place regarding reintegration.
According to Knight, after the youngest child was adjudicated a CINC, Father never made himself available to the case manager to sign the reintegration plan. Knight emailed a copy of the plan to Father and his attorney and further requested that his attorney review the plan with Father.
Knight testified that Father failed to maintain regular contact with her. He met a number of his tasks for reintegration but did not complete the majority of them. For instance, he:
• failed to provide proof of employment;
• failed to provide adequate proof of residence;
• failed to comply with the “color code” drug tests, which required him to submit to a urinalysis four times a month, and he did not submit to any of the required tests;
• failed to complete a domestic violence assessment and a “batterer's intervention” course;
• did not provide proof of taking parenting classes;
• failed to submit monthly budgets, having submitted only one;
• failed to meet with Knight on a monthly basis; and
• apparently violated the no-contact order.
Knight testified that she did not see any improvement in Father's ability to meet the requirements of the reintegration plan.
Knight testified that the children had consistently spoken about domestic violence in the home. The two older children showed signs of having been exposed to abuse in the home and had symptoms of post-traumatic stress disorder (PTSD). According to Knight, the mother of the younger children said that Father would strike her on the top of her head so any bruises would be hard to detect. Both mothers told Knight about domestic abuse. The mother of the older children said she had been “severely emotionally and mentally abused by him.” The mother of the younger children reported that she had been physically abused by Father, though she denied this when she was called to testify at trial. In her later testimony the mother of the younger children admitted that she had had contact with Father in violation of the no-contact order.
Polly Johnson, the therapist for the two oldest children, testified that the oldest child was depressed and withdrawn. She diagnosed this child as having PTSD because of the abuse that she had witnessed. The child was scared of her Father because she witnessed him abusing her brother. According to Johnson, it would be distressing for this child to have visitation with her Father because she had trouble talking about the abuse she had witnessed.
Johnson also diagnosed the second oldest child with PTSD based on his reaction to the abuse within the home. Johnson testified that this child hid under the desk when they talked about the abuse during therapy sessions. When he was told that he might have to testify, he was scared and hid behind the cushions of the couch. He did not want to talk to his Father in court and stated that he would want his Father in handcuffs before he would talk to him.
Contrary to his lawyer's advice, Father insisted on calling the two older children to testify at trial. The court directed Father to write down his questions for the children. The court then asked the questions of the children by way of a video conference hookup.
The oldest boy testified that he saw Father punch the mother of the younger children in her arms. He said that Father hit him multiple times, stating that “every time he would punch me and say everything that happens is my fault.” The boy's Father was upset with him and smacked him across his face. The boy stated that he did not feel safe around his Father. According to the boy, Father took a kitten to their shed and kicked it to death. This was confirmed by the oldest girl.
The oldest child testified that Father would spank her and her brother with a belt when they were younger. On one occasion the mother of the younger children showed her a bruise on her side and told her that Father had caused the bruise. The mother said, “ ‘Don't tell your dad that I showed you this, but this is what he did to me.” ‘ The girl testified she had seen her Father slap her brother because it was his fault that the mother of his younger children had left him. The girl did not feel safe with her Father when he was angry. She testified that she would not feel okay if she were alone with him.
The district court terminated Father's parental rights, finding Father to be unfit for the following reasons:
• because of a mental illness or deficiency of such a nature as to render him unable to care for the needs of his children (K.S.A.2014 Supp. 38–2269 [b] [1] );
• because of physically cruel or abusive conduct toward the children (K.S.A.2014 Supp. 38–2269 [b][2] );
• because of use of intoxicating liquors or narcotics (K.S.A.2014 Supp. 38–2269 [b][3] );
• because of emotional abuse (K.S.A.2014 Supp. 38–2269 [b][4] );
• for failure of reasonable efforts to rehabilitate the family (K.S.A.2014 Supp. 38–2269 [b][7] );
• for lack of effort by Father to adjust his circumstances (K.S.A.2014 Supp. 38–2269 [b][8] ); and
• because Father failed to carry out a reintegration plan (K.S .A.2014 Supp. 38–2269 [c][3] ).
The district court also found that the conditions of unfitness were unlikely to change in the foreseeable future. Father's appeal brings the matter to us.
Right to Counsel
Father first argues that his due process rights were violated because he was effectively denied the right to counsel. When the State files a petition to establish a CINC determination, parents have a statutory right to counsel. K.S.A.2014 Supp. 38–2205. This statutory right arises from a parent's constitutional right to “fairness and impartiality” in a CINC proceeding. In re T.M.C., 26 Kan.App.2d 297, 299, 988 P.2d 241 (1999). Whether a parent's right to counsel was violated is a question of law which we review de novo. See In re J.D.C., 284 Kan. 155, Syl. ¶ 2, 159 P.3d 974 (2007).
Further, a parent has a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution to make decisions regarding the care, custody, and control of his or her child. A parent is entitled to due process of law before being deprived of these rights. In re Adoption of A.A.T., 287 Kan. 590, 600–01, 196 P.3d 1180 (2008). “Whether an individual's due process rights were violated is a question of law subject to de novo review.” In re Adoption of B.J.M., 42 Kan.App.2d 77, 81, 209 P.3d 200 (2009).
Father did not make a specific due process argument at the district court level. But he requested new counsel and expressed his dissatisfaction with the proceedings. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 729, 317 P.3d 70 (2014). But a new legal theory may be asserted for the first time on appeal if: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1778 (2009).
Father argues that there is sufficient information in the record to suggest that he was objecting on due process grounds even if the specific words “due process” were not used. In accordance with the requirements of Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40), as articulated in State v. Godfrey, 301 Kan. 1041, 1043–44, 350 P.3d 1068 (2015), he asserts the court should address this issue for the first time on appeal to prevent the denial of a fundamental right. Under these circumstances, we will consider the claim.
In reviewing a procedural due process claim, we must examine the nature and extent of the process due. Due process is flexible and requires only such procedural protections as the particular situation demands. In re Adoption of B.J.M, 42 Kan.App.2d at 82.
Father complains that he had a conflict of interests with appointed counsel that resulted in him being deprived of his right to conflict free counsel. In September 2014, Father's counsel asked to withdraw because Father wanted him to pursue a trial strategy (calling Father's children as witnesses at trial) with which counsel disagreed. Counsel acknowledged that the threshold determination was whether communications between Father and counsel had totally broken down. Counsel informed the court that they had not. The district court denied counsel's request to withdraw and directed counsel to assist Father in subpoenaing the children. The trial was over a month away. Father did not retain new counsel in the interim.
Not all disagreements between counsel and client are irreconcilable or lead to a complete breakdown in communication. State v. McCormick, 37 Kan.App.2d 828, Syl. ¶ 3, 159 P.3d 194, rev. denied 284 Kan. 949 (2007). In the criminal context, as long as the court had a reasonable basis to believe that the relationship had not deteriorated to the point that appointed counsel was no longer able to give effective aid in the presentation of a defense, the court was justified in refusing to appoint new counsel. State v. Brewer, 49 Kan.App.2d 102, 114, 305 P.3d 676 (2013). Here, while counsel disagreed with Father's proposed trial strategy, there was not a complete breakdown in communication between them.
Counsel was Father's second appointed attorney. Father's previous counsel had withdrawn from the case. In denying present counsel's motion to withdraw, the court noted that “this case is old.” The court told Father's current counsel that “anybody that I would appoint would have the exact same difficulties that you have experienced” and that Father's current counsel's ability to deal with Father “is going to be as good as anybody.”
On the day of trial, Father reported that he and his counsel continued to disagree about trial strategy. Father wanted his counsel to question the children and to object when other witnesses testified about what the children had said. Counsel observed that notwithstanding the dispute over trial strategy, he and Father were able to communicate.
Father then asked for the opportunity to hire new counsel. The court reminded Father that he had had ample opportunity to hire a new lawyer if he had wished to do so but had chosen not to do so until the last minute. The court concluded, “[Father], you are playing games once again.” The court overruled Father's motion.
As the trial proceeded, Father's counsel first cross-examined the State's witnesses and then Father was permitted to cross-examine the witnesses himself. In his case-in-chief, Father called as a witness the mother of his two younger children and interrogated her himself, with some brief assistance from his counsel. The interrogation of Father's two older children was conducted by video conference with the court asking the questions requested by Father. Father's counsel conducted the interrogation of the last witness, Father's mother.
To determine whether due process required the district court to appoint new counsel or to allow Father to secure new counsel, we apply the balancing test set forth in Mathews v. Eldridge, 424 U .S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). This test requires us to weigh the following factors: (1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the State's interest in the procedures used, including the fiscal and administrative burdens the additional or substitute procedures would entail. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409, 49 P .3d 1274, cert. denied 537 U.S. 1088 (2002).
With respect to the first Mathews factor, the individual interest at stake, the interest is Father's right to the custody and control of his children, which is a protected right. In this context “the private rights affected by governmental action are very significant and are entitled to the highest protection from unwarranted governmental action.”In re J.L., 20 Kan.App.2d 665, 671, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995).
‘ “ “Due process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ [Citation omitted.] ‘[It] is flexible and calls for such procedural protections as the particular situation demands.’ “ Mathews, 424 U.S. at 334. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. In re Adoption of B.J.M., 42 Kan.App.2d at 81. In order to establish a due process violation, Father must first establish that he was denied a specific procedural protection to which he was entitled. In re K.E., 294 Kan. 17, 22, 272 P.3d 28 (2012). Father points to his fundamental right to counsel, codified under K.S.A.2014 Supp. 38–2205(b), as the procedural safeguard of which he was deprived.
Father complains that the court required him to proceed to trial with an attorney with whom he had a conflict. The conflict was over the trial strategy of whether to call the older children as witnesses. Father cites Kansas Rule of Professional Conduct 6.2(c) (2014 Kan. Ct. R. Annot. 661), which provides that an attorney should avoid an appointment where “the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.”
Kansas Rule of Professional Conduct 6.2(c) does not apply. There was no conflict of interests established by Father. Father's counsel had the same interest as Father—defeating the State's claim that Father was unfit and restoring the children to their Father. Counsel had no interest that conflicted with Father's interest. What counsel sought to do was advance Father's cause and protect his parental rights by using a trial strategy which was designed not to injure the children and not to do irreparable harm to their ability to be reconciled with their Father in the long run.
Father cites State v. Stovall, 298 Kan. 362, 375–76, 312 P.3d 1271 (2013), for support. In Stovall, our Supreme Court held that automatic reversal may be required when the attorney actively represented conflicting interests. But as explained in Stovall, an automatic reversal requires “ ‘multiple concurrent representation,’ “ which means that the attorney was simultaneously representing codefendants with antagonistic interests in the same proceeding. 298 Kan. at 376 ; see State v. Galaviz, 296 Kan. 168, 183, 291 P.3d 62 (2012). That is not the case here.
With respect to the second Mathews factor, Father complains about the approach taken by the district court to accommodate Father's objections to his counsel's trial strategy. The district court did not allow his counsel to withdraw, but it allowed Father to examine and cross-examine witness and submit questions for the court to ask the children. He also complains that under this arrangement “it is impossible to tell what would have come out of rigorous or meticulous questioning of witnesses by an attorney who was committed to the same strategy as [Father].” He contends that the representation he received was insufficient to protect his fundamental right to counsel. He also contends that he was essentially forced to proceed pro se. Finally, he contends he was both forced to accept an attorney that he did not want and at the same time forced to represent himself.
The district court went out of its way not only to allow Father to call witnesses and question them at trial, but also to permit Father's counsel to intervene and assist when necessary. Under this arrangement Father had the best of both worlds. If Father sincerely desired to hire new counsel as he now claims, he had ample opportunity to do so before the trial began. Considering the record as a whole, it is clear that the district court went to great lengths to ensure Father's right to due process. Father was provided the opportunity to be heard at a meaningful time and in a meaningful manner.
The third Mathews factor requires the district court to consider the government's interest and burdens of the substituted procedural safeguards. Father admits the State's interest in protecting children. “[T]he government's parens patriae interest in protecting minor children is substantial and of great importance. [Citation omitted.]” In re J.L., 20 Kan.App.2d at 675. These proceedings had been pending for 2 years. The children had been in DCF temporary custody and outside the home since April 2013. Courts are mindful that in proceedings like those here, they are to take into consideration a child's sense of time in reaching a resolution. In re J.A.H., 285 Kan. 375, 386, 172 P.2d 1 (2007). The provisions of the Revised Kansas Code for Care of Children should be construed to ‘ “best serve the child's welfare.’ “ 285 Kan. at 386 ; see 2014 Supp. 38–2201(b)(4). To delay the proceedings further to allow Father to retain the services of a third lawyer would have caused an inordinant delay in the final disposition of the case and been detrimental to the children who were in need of, and entitled to, some finality. This is particularly true in view of the findings by the district judge, who had ample opportunity to see Father in action, that in requesting this change Father was “playing games once again,” and that it was unlikely that any new lawyer coming on board would be willing and able to accommodate Father's wishes regarding how the case should be tried. Father fails to show how a delay in the proceedings to appoint new counsel would have protected his due process rights. Father knew of his claimed conflict with counsel over trial strategy for at least a month and did not secure new representation.
Father was represented at trial by experienced, competent counsel. The district court went out of its way to accommodate Father's requests. Father was permitted to examine and cross-examine witnesses. Despite the children's therapist's recommendation to the contrary, Father was allowed to call his two older children to testify. The court asked all of the questions of the children that Father submitted. There was no violation of Father's due process rights.
Motion for Continuance
Father argues the district court erred in denying his request for a continuance for the purpose of obtaining new counsel. On appeal, the district court's ruling on a motion for a continuance will not be disturbed absent an abuse of discretion. In re J.A.H., 285 Kan. at 384–85 ; In re A.A., 38 Kan.App.2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008). Discretion is not abused when reasonable minds could differ as to the propriety of the action taken by the district court. In re J.A.H., 285 Kan. at 385. The party asserting that the district court abused its discretion bears the burden of showing such abuse. Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009).
Much has already been said about this issue in our discussion of Father's due process claim. K.S.A.2014 Supp. 38–2246 provides: “All proceedings under this code shall be disposed of without unnecessary delay. Continuances shall not be granted unless good cause is shown.” In ruling on a motion for a continuance, the court should consider the moving party's “ ‘good faith, his showing of diligence, and the timetable of the lawsuit.’ [Citation omitted.]” In re J.A.H., 285 Kan. at 385. As noted earlier, the provisions of the Revised Kansas Code for Care of Children should be construed to “ ‘best serve the child's welfare.’ “ Further, the district court must strive to decide these cases in “ ‘child time” ‘ rather than “ ‘adult time.’ “ 285 Kan. at 386 ; see K.S.A.2014 Supp. 38–2201(b)(4).
Father argues that his requests for continuances were timely and made in good faith for the purpose of finding counsel who agreed with his trial strategy. But Father had ample opportunity to hire substitute counsel in advance of the trial but chose not to. On the morning of trial Father did not contend that his appointed counsel was not ready for trial or that denying the continuance would deny him of his day in court. The court concluded that in making this request Father was “playing games once again”: an indication that Father was not acting in good faith.
In In re J.A.H., our Supreme Court found that the father's request for a continuance on the morning of trial demonstrated a lack of diligence and was inconsistent with the timetable of a CINC proceeding. 285 Kan. at 385–86. The same can be said of Father here. Father had made little progress toward his reintegration efforts from the time the children were placed in DCF custody until the time of trial. New counsel would not have changed that fact. Father has failed to show he was prejudiced by the district court's denial of his continuance request. See In re Zappa, 6 Kan.App.2d 633, 638, 631 P.2d 1245 (1981). We find no abuse of the district court's discretion in denying a continuance.
Sufficiency of the Evidence
Father argues the district court erred in its decision to terminate his parental rights to his children under K.S.A.2014 Supp. 38–2269. Father challenges both the district court's finding that he was unfit and the district court's finding that the conditions rendering him unfit were unlikely to change in the foreseeable future. He contends the district court's findings were not supported by clear and convincing evidence.
The Revised Kansas Code for Care of Children provides that the court may terminate parental rights when a child has been adjudicated a child in need of care and “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) ; see In re B.E.Y., 40 Kan.App.2d 842, 843, 196 P.3d 439 (2008). Clear and convincing evidence requires the factfinder to believe “that the truth of the facts asserted is highly probable.” In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 (2008). In reviewing this determination we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. The foreseeable future in CINC proceedings is viewed from a child's perspective because a child's perception of time differs from that of an adult. K.S.A.2014 Supp. 38–2201(b)(4) ; In re M.B ., 39 Kan.App.2d 31, 45, 176 P.3d 977 (2008).
Emotional or Mental illness, or Mental Deficiency of Father—K.S .A.2014 Supp. 38–2269[b][1]
The district court found that this factor applied to Father. Father did not complete the mental health evaluations ordered by the court. The district court found that “we can only assume that either he did not care, or he does not believe he does have a mental illness issue which could have explained away some of the behaviors that were observed.” As such, Father thwarted any ability to determine this factor.
The testimony of Knight and therapist Robin Burgiss provided support for this factor. Burgiss diagnosed Father with “adjustment disorder with mixed anxiety and depressed mood” based on the symptoms he exhibited. In support of this diagnoses, Burgiss pointed to Father's report of low mood, worrying, mild anxiety, periods of tearfulness, feeling hopeless, and anger. Burgiss reported that Father exhibited rapid and mumbling speech and exhibited increased psychomotor movement with restless jitteriness.
Physically, Emotionally, or Sexually Cruel or Abusive—K.S.A.2014 Supp. 38–2269[b][2]
In support of this factor, the district court pointed to the testimony of the domestic abuse within the home and the PTSD exhibited by the older children. The court stated that the testimony showed there was significant emotional trauma that was going on within the home. The court noted that the children observed Father hit the mother of two of his children. In addition, the court considered the death of the cat, a family pet, and the resulting trauma to the children. The court pointed out that the children were afraid of Father and did not want to be alone with him.
Use of Intoxicating Liquors or Narcotics—K.S.A.2014 Supp. 38–2269[b][3]
The RADAC assessment was completed, but Father did not complete the assessment as directed. During the evaluation, Burgiss noted Father's behavior that was characteristic of “ ‘a person abusing stimulants.’ “ Father failed to submit a single “color code” drug test even though his reintegration plan required such tests four times a month.
Failure of Reasonable Efforts—K.S.A.2014 Supp. 38–2269[b][7]
The district court found there was a failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family. Father was given a reintegration plan, but he did not complete even the minimum of requirements, such as providing his address to establish that he had a safe place for the children to live. Father did not complete the psychological evaluation or participate in individual counseling. Father failed to attend parenting classes or complete a domestic violence assessment. He failed to provide proof of employment or submit monthly budgets. He was arrested as a result of violating the no-contact order. Despite having a reintegration plan, Father failed or refused to participate in the services offered to him.
Lack of Effort on Part of Parent—K.S.A.2014 Supp. 38–2269[b][8]
At trial, much of the evidence presented by the State focused on Father's failure to comply with the majority of the tasks required by the reintegration plan. Father provided no explanation or excuse for his failure to complete the tasks assigned to him for the purpose of reintegration. The district court noted that Father refused to do even the simple things, and he did not adjust his circumstances for the needs of his children.
Failure to Carry Out a Reasonable Plan—K.S.A.2014 Supp. 38–2269[c][3]
In support of this factor, the district court noted:
“[Father] was throwing up roadblocks for one reason or another to the extent where he thought that they were trying to make him fail and trying to take his children away, place the children with a maternal grandmother who was a drug user and a convicted felon and she was living with a convicted felon. There is that tenor throughout.
“He always said that he wanted to participate in counseling, always wanted to do this or that.
“But when it came down to it and the time and opportunity was provided to him, he did not take advantage of those opportunities.”
During the district court's ruling, the judge noted that Father walked out of the courtroom:
“[Father] walked out of the courtroom moments ago.
“It should be noted that [Father] on—Again, things that aren't noticed probably by somebody reading a cold record.
“But here it is, one of the most important days of his life, and he shows up late to—by half an hour for one hearing and stands outside the courtroom with a cigarette in his mouth before walking in on the next hearing.”
Termination Was Supported by the Evidence
At this late hour, Father challenges DCF's efforts to rehabilitate the family. Father cites K.S.A.2014 Supp. 38–2269(b)(7), noting that in making a determination of unfitness, a court must consider the “failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family.” K.S.A.2014 Supp. 38–2269(b)(7). Father alleges that the “corrosive relationship” between him and the primary KVC case manager “infected the entire case” and undermined any chance that Father had to rehabilitate or reintegrate.
Lisa Knight was the primary KVC manager from May 2013 until September 2014. Father was accused of threatening people at KVC, and Father believed that Knight made the accusations. Father was barred from the KVC premises. Knight testified that Father was concerned about future meetings with Knight for fear of future false accusations. Knight was willing to meet with Father in a public place, such as the courthouse.
Polly Johnson, the therapist, was not comfortable meeting with Father alone. Johnson would only meet with Father and his attorney if another individual was present. Father never met with Johnson.
Finally, Father notes that no reintegration plan was filed in this case. The establishment of a reintegration plan is not mandatory. In re J.G., 12 Kan.App.2d 44, 51, 734 P.2d 1195, rev. denied 241 Kan. 838 (1987). But here, a reintegration plan was ordered but Father never made himself available to the case manager to sign the plan. Knight emailed a copy of the plan to Father and his attorney and further requested that his attorney review the plan with Father. Father had a copy of the reintegration plan and knew what was required of him to reintegrate with his children.
K.S.A.2014 Supp. 38–2255(e)(5) requires the district court to determine whether Father failed to work diligently toward reintegration. K.S.A.2014 Supp. 38–2255(e)(7) further requires the district court to consider whether it is reasonable to expect reintegration to occur within a timeframe consistent with the child's developmental needs. Father initially showed cooperation to make the changes necessary to work toward reintegration and the children were placed back in the home, but his efforts changed after the children were placed in DCF custody the second time. Father does not dispute that he did not complete the majority of the tasks requested of him in the case plan. We noted earlier the tasks he did not complete. After the State moved to terminate Father's parental rights, he made virtually no progress toward reintegration.
The factual existence of parental unfitness can be judicially predicted from a parent's past history. In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982). Courts do not have to gamble with the children's future nor experiment with the child's welfare before taking action. A child should not have to endure the inevitable to his or her detriment and harm in order to give the parent an opportunity to prove his or her suitability. 7 Kan.App.2d at 480 (quoting In re East, 32 Ohio Misc. 65, 69, 288 N.E.2d 343 [1972] ).
The district court concluded “that, having been doing this as long as we have, there is no reason to believe that in the foreseeable future that that would ever change, especially given the attitude [of Father].” Father's past behavior and failure to make progress toward reintegration indicated that Father is unfit and unlikely to change in the foreseeable future. Based on this determination, the district court terminated Father's parental rights.
A thorough review of the record reveals clear and convincing evidence to support the district court's termination of Father's parental rights and to further support its finding that Father's condition of unfitness was unlikely to change in the foreseeable future. We find no error in the district court's handling of this matter.
Affirmed.