Opinion
No. 111,175.
2014-12-12
In the Interest of J.H., A Minor Child Under Age Eighteen, In the Interest of A.H., A Minor Child Under Age Eighteen.
Appeal from Shawnee District Court; Jean M. Schmidt, Judge.Rachel I. Hockenbarger, of Topeka, for appellant natural father.Chadwick J. Taylor, district attorney, and Jose V. Guerra, assistant district attorney, for appellee.
Appeal from Shawnee District Court; Jean M. Schmidt, Judge.
Rachel I. Hockenbarger, of Topeka, for appellant natural father. Chadwick J. Taylor, district attorney, and Jose V. Guerra, assistant district attorney, for appellee.
Before MALONE, C.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
J.H., the natural father (Father) of J.H. (d.o.b.2010) and A.H. (d.o.b.2009) appeals the district court's decision to terminate his parental rights. Father contends there was not clear and convincing evidence to support the termination of his parental rights. We affirm the district court's judgment.
J.H. and A.H. were living with Father and Mother and two half-siblings when they first were brought to the attention of the Department of Social and Rehabilitation Services (SRS), now known as the Department of Children and Families (DCF). In September 2010, when J.H. was 3 months old and A.H. was 18 months old, SRS received a report about the family. During its investigation, SRS noted concerns of domestic violence in the home, neglect of the children, and drug use by the parents. Both Mother and Father tested positive for marijuana. In addition, the home was dirty and without gas service. SRS employees referred the family to St. Francis Family Preservation Services (St.Francis). SRS and/or St. Francis provided services to the family, including TAF/cash, food stamps, medical cards, and assistance in seeking employment, reinstating utility service, and offering of anger management, therapy, and family support.
While St. Francis was providing family preservation services, SRS received another report about the family in March 2011. Again, the concerns involved drug use and domestic violence in the home. One of the older children (not involved in this appeal) told SRS workers that she saw Father get angry, go to the basement, and return with a loaded gun; Father then pointed the gun at Mother's head. Other persons in the home took the gun away from Father and Mother ran outside. Mother confirmed the incident. At the time, she tested positive for marijuana. Father was arrested and was interviewed in the jail a few days later. Father reported that he only retrieved the gun to defend himself because Mother and the others were drunk and high. As a result of this incident, Father was convicted of two counts of criminal threat and placed on probation in June 2011. He admitted he had one domestic battery conviction before this incident involving Mother.
As a result of the March incident, the State filed a child in need of care (CINC) petition seeking custody of all four children; J .H. was then 9 months old and A.H. had just turned 2 years old. In the CINC petition, the State cited child neglect, lack of stability in the home, and the risk of exposure to drugs, illegal substances, and alcohol. The State also asked for emergency removal because the children were in danger of being harmed due to the presence of domestic violence in the home. Based upon this petition, the district court issued an ex parte order of custody on March 23, 2011, directing removal of J.H., A.H., and their half-sisters from the home.
Neither Mother nor Father contested the CINC petition and the district court found the children to be in need of care. In addition, Father was ordered to pay child support to SRS for J.H. and A.H.'s care.
In its early orders, the district court directed Mother and Father to comply with various requirements. In addition to the child support order, the district court issued a no contact order between Mother and Father; the district court later modified the order to require no violent contact between the parents. The district court directed both parents to obtain RADAC drug and alcohol assessments. The district court also allowed the parents reasonable visitation at the discretion of SRS.
In October 2011, the Citizen Review Board (CRB) recommendations were adopted by the district court. In those recommendations, the members of the CRB encouraged both Mother and Father to continue working on the case plan and make improvements. The parents were encouraged to listen to and accept the support their relatives were trying to provide. Various other orders were issued for Mother due to a positive UA test.
Three months later, the CRB issued additional recommendations. The members encouraged the parents “to take responsibility for completing their case plan tasks” and show progress to their case manager. At this point, they recommended the case plan goal be changed to both reintegration and adoption due to the parents' lack of progress. Father was directed to take a parenting class, and both parents were ordered to contact their case manager every week.
At a permanency hearing on April 24, 2012, more than a year after the children had been placed in SRS custody, the district court found that the permanency plan should be changed to adoption. The district court recognized that the family had been provided significant support, including transportation, case monitoring, clothing, medical cards, therapy services, parenting classes, and a batterer's program. The district court found reintegration was no longer viable but held that all previous orders shall continue. The district court specifically refused to order the District Attorney to file a motion to terminate parental rights.
The CRB reviewed the case again in July 2012 and November 2012. In the July review, the CRB members noted inconsistency by both parents with communications and visits with the children. They warned that the parents' sporadic work on case plan tasks was not enough and that if they could not be consistent with communications and work on the case plans, a motion to terminate their rights should be filed. After the November review, the CRB recommended the case be changed back to the dual recommendation of reintegration and adoption because of Mother's progress on the case plan. No mention of Father (who did not appear at this meeting) was made.
Another permanency hearing was held in March 2013, 2 years after the children were removed from the home. The plan's goals were for adoption or permanent guardianship for the children. The district court again found that reintegration of the family was no longer a viable option. The goal for J.H. and A.H. was adoption. The district court still permitted Father to have supervised contact with the children at the agency's discretion.
In July 2013, the State filed a motion to terminate the parents' rights to the children. As to Father, the motion made numerous allegations, including extensive use of intoxicating liquors or narcotics, his conviction of a felony and resulting imprisonment, his failure to maintain reasonable visitation or contact with the children, his failure to pay child support as ordered, and his failure to carry out a reasonable reintegration plan. Specific facts supporting the State's allegations regarding Father were set forth in the motion.
A termination hearing was held October 3, 29–30, 2013. Prior to the hearing Mother relinquished her parental rights. After hearing evidence from several witnesses, the district court took the matter under advisement.
In a memorandum decision filed December 19, 2013, the district court found Father unfit and determined that it was in the best interest of J.H. and A.H. for Father's rights to be terminated. In its decision, the district court found Father was aware of the requirements of the permanency plans. The district court noted, however, that Father failed to attend case plan meetings, even when he was not in jail, and that he failed to comply with the terms of his probation. Father was permitted visitation with the children subject to several conditions, but of the 51 visits he was eligible to attend between April 2011 and February 2013, he only attended 9 visits; the last visit occurred in July 2012. Case workers cancelled some visitations because Father did not provide UAs, tested positive in UA tests, was incarcerated, or he simply failed to appear. Father also was incarcerated after being held in contempt for willfully failing to pay child support. Although Father had completed some of the case plan tasks, he failed to participate in a batterer's intervention group and in-patient drug treatment. The district court found these factors reflected his unfitness and established that it was unlikely he would change in the foreseeable future. Because the children had been removed from the home for 2 and 1/2 years, and Father had failed to complete most of the case plan requirements, the district court held his rights should be terminated. Father timely appealed the district court's judgment. The cases of J.H. and A.H. were consolidated for purposes of appeal.
On appeal, Father argues that there was not clear and convincing evidence to support the termination of his parental rights. Father claims that he was only 20 years old when the children were removed and that he had matured during the 2 years the children were in State custody; he argues another 4 to 6 months would have been sufficient for him to prove he could provide for his children. Finally, Father argues the district court failed to apply the requisite analysis to determine whether termination was in the best interest of the children.
In a termination of parental rights case, the district court must make two findings. First, the district court must find 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.2013 Supp. 38–2269(a). Second, the district court must find that termination of parental rights is in the best interest of the child. K.S.A.2013 Supp. 38–2269(g)(1).
Our standard for reviewing the first decision-the conclusions pertaining to parental fitness—is well established. The district court must make the fitness findings based on facts that rise to the clear and convincing evidence standard. K.S.A.2013 Supp. 38–2269(a). In reviewing such findings the appellate court must determine whether the evidence, taken in the light most favorable to the State, could have convinced a rational factfinder that the facts were highly probable. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In doing so, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. The proper standard of review for the “best interest” finding is abuse of discretion. See In re R.S., 50 Kan.App.2d –––––, Syl. ¶ 2, 336 P.3d 903 (2014); In re K.P., 44 Kan.App.2d 316, 322, 235 P .3d 1255, rev. denied 291 Kan. 912 (2010).
Here, the district court found clear and convincing evidence that Father was unfit under K.S.A.2013 Supp. 38–2269(b)(l) (emotional or mental illness), (b)(3) (use of intoxicating liquor or drugs), (b)(5) (conviction of a felony and imprisonment), and (b)(8) (lack of effort by the parent to adjust the parent's circumstances). Likewise, the district court found clear and convincing evidence that Father was unfit under K.S.A.2013 Supp. 38–2269(c)(1) (failure to assume care of the children in the parental home), (c)(2) (failure to maintain regular visitation or communication), and (c)(3) (failure to carry out a reasonable reintegration plan). The evidence presented by witnesses and exhibits at the hearing amply support the district court's findings.
Mental Illness/Domestic Violence
On appeal, Father contends there were no findings made by the district court regarding his mental status other than his diagnosed ADHD. However, in its memorandum decision, the district court discussed at length Father's history of domestic violence and violent actions in the children's presence; the district court also focused on Father's failure to complete the recommendations for batterer's intervention and anger management programs. The district court found that Father had demonstrated violent attitudes and behavior, indicating that domestic violence was a chronic condition. These issues clearly present questions pertaining to Father's mental health.
One of the primary reasons the children were removed from the home was the Father's domestic abuse against Mother, including his actions in the presence of the children. Father was on probation for a domestic violence conviction at the time of SRS' first contact with the family in September 2010; Mother was the victim in that case as well. Throughout the case, Father had been directed to participate in batterer's intervention programs as well as anger management courses. He never completed these programs.
The need for Father to complete a batterer's intervention program was emphasized throughout the case. The violence continued when Father engaged in an angry outburst directed at Mother, along with physically aggressive movements, following a visitation. Thereafter, SRS only allowed the parents separate visits. In addition, the case manager decided that all visits would occur at the offices of TFI Family Services (TFI); Father told the case manager that if the visits were held at the agency, he would not attend. Although Father denies he made such a statement, he failed to attend the visits after July 2012. Mother also filed for a protection from abuse (PFA) order against Father as a result of this incident.
Father was directed to participate in a batterer's group at Catholic Charities. Father had attended the program sporadically. Father was suspended from the program due to failure to pay for the classes. In March 2012, when TFI learned of Father's inability to pay, TFI paid for the program (over $400). Father was discharged from the program thereafter for non-attendance.
As of March 2013, the batterers' intervention task was still in place. Father did not complete the program prior to June 2013. Father testified he started the batterer's intervention program twice; he had to restart the program from the beginning because he missed too many classes due to transportation issues. As of the date of the termination hearing, Father still had not finished the program, which usually takes about 4 months to complete. Father had been working on the class while in prison and testified at the termination hearing that he only had a month of classes to complete to finish the program. Father did not believe he needed anger management classes because the batterer's program covered anger management. Father later testified that an employee of the jail volunteered to help him with a batterer's intervention program once he got out of jail.
The district court's finding is further supported because Father, who admitted to having ADHD and bipolar disorder, refused the medication provided to him to help with mood swings and anger. Father initially testified he planned to do nothing about his bipolar disorder and ADHD. He later agreed in his testimony that he should do something, although he asserted that all parents have mood swings and it had nothing to do with raising children.
Based on this evidence, the record is clear that Father had failed to take adequate steps to manage his mental health and anger control problems. Father's cavalier attitude toward his mental health conditions and violent past support the district court's determination that these problems were unlikely to change in the foreseeable future.
Drug/Alcohol Abuse
On appeal, Father argues that there was no evidence he had a chronic drug problem and that he took reasonable steps to attempt to address any drug issues during the reintegration process. These claims are belied by undisputed evidence in the record.
Since the district court's initial order approving the removal of the children, both parents were ordered to complete drug and alcohol assessments through RADAC. Both at the time of his first SRS contact and when SRS removed the children, Father tested positive for THC. He again tested positive for THC on September 12, 2011. Less than a week later, Father did not take a UA test, but admitted he had used marijuana prior to the test. At this meeting, Father told the case manager that he had passed previous UAs with his probation officer and TFI because he was smoking K–2 rather than marijuana. He shifted back to using marijuana because he suffered some bad hallucinations while using K–2. At the termination hearing, Father testified that he had started smoking marijuana when he was 5 years old.
In the fall of 2011, the district court directed Father to complete another RADAC assessment. Father completed the assessment in October 2011; the assessment recommended Father attend NA/AA groups and follow up with a mental health assessment. As of April 2012, Father had not attended any NA/AA meetings nor had he completed a mental health evaluation. At the hearing, however, Father testified that he did attend NA meetings for about 6 to 8 weeks and told the case manager, but he never provided her documentation to show he was attending.
Father missed a number of UAs during the case and he was not tested on other occasions because he admitted he had used illegal drugs. Father's attendance at UA testing was sporadic, but he did have a positive UA for THC in March 2012. Father also tested negative for drugs at least six times in February and March 2012. Between June
Father was eligible for 51 visits with his children between April 2011 and February 2013. Notwithstanding his availability, Father only attended 9 of these visits. He would have been eligible for more visits except he was in jail so frequently. After his arrest in August 2012, Father was released in early September 2012. After his release, instead of making arrangements to see his children, he started using methamphetamine daily. Father was incarcerated again between December 10, 2012, until April 18, 2013. As a result of his incarceration, Father had no visitation between August 2012 and February 2013.
Granted, Father had two visits with the children early in the case that went well. However, Father missed scheduled visits in April, June, and August. During a supervised visitation with the two children and Mother in May 2012, it was clear to the social worker that the children had not bonded with Father. In his last visit with the girls in late July 2012, Father was late and seemed more interested in talking on his cell phone than interacting with the girls. The girls never asked the social workers about Father and social workers saw little or no bonding between Father and the girls.
There is clear and convincing evidence to support this determination of the district court. Father's visitations were minimal, he refused visitations when they were scheduled to be held at TFI's offices due to Father violent actions, and then Father absented himself due to drug usage and probation revocations caused by his choices and decisions.
Failure to Carry out Reintegration Plan/Failure to Adjust
Finally, Father disputes the court's finding that he failed to reasonably comply with the terms of the reintegration plan. In making this argument, Father focuses primarily on events occurring during his most recent incarceration carrying on past the termination hearing. However, Father's efforts again appear to be “too little, too late.”
There is no dispute that Father completed TMAP (Topeka Moving Ahead Program) that provided training for seeking employment and housing while he lived at the Rescue Mission. However, Father was unable to maintain steady employment. Father reported that he had been seeking work at fast food restaurants between December 2011 and March 2012, but had been unable to find a job. Father asserted that the Mission was helping him find housing and employment prior to his latest arrest. He was hired at McDonald's and worked at Perkins at the same time. However, he was unable to work the two jobs for long and ultimately lost his job when he was arrested.
Father had been ordered to take parenting classes and utilize the skills learned from the classes. As of April 2012, Father had not attended any parenting classes. He testified he took a parenting class but did not provide documentation that he completed the program.
Chris Bush, a case manager at Kansas Legal Services, testified during the trial. Bush teaches classes on life skills and employment in the TMAP program. TMAP is a 13–week program with classroom instruction related to finding housing and employment. Bush testified Father graduated from the TMAP program and kept in touch after he completed the program. This would have been in April of 2012. Father participated very well in the classes although it was a bit challenging for him. Father ultimately became a class leader. Bush believed Father had made a commitment to change and to get his children back. During the program, Bush met with Father individually to discuss anger management.
While it is clear that Father had taken positive steps in the last 10 months before the termination hearing, serious questions remained whether Father's expectations of himself were reasonable and whether there was an adequate support system to ensure Father's success. Moreover, Father's last minute efforts fail to justify his inconsistent effort to comply with the plan during the first 18 months or more of the reintegration process. In summary, the district court's findings that Father was unfit and that the unfitness was unlikely to change in the foreseeable future were supported by clear and convincing evidence.
Best Interest Analysis
The district court found that due to the length of time the children were out of the home and the traumatic events they were subject to while within the home, it was in their best interest to terminate Father's parental rights. Father argues that in deciding best interests, the district court must consider the nature and strength of the relationships between the children and the Father. Father contends the district court failed to engage in the proper analysis.
Even after finding unfitness that is unlikely to change in the foreseeable future, the district court must also determine that terminating the parent's rights is in the child's best interests. K .S.A.2013 Supp. 38–2269(g)(1). In making the best-interests determination, the district court gives primary consideration to the child's physical, mental, and emotional needs. K.S.A.2013 Supp. 38–2269(g)(1). In making such a determination, the district court must consider the nature and strength of the relationships between children and parent and the trauma that may be caused to the children by termination, weighing these considerations against a further delay in permanency for the children. In re K.R., 43 Kan.App.2d 891, 904, 233 P.3d 746 (2010).
Here, it is clear the district court reviewed the factors required for the best-interest analysis. The district court noted the problems in the home—domestic violence and drug use—which initially led to the removal of the children. The district court noted Father's limited visits with his very young children and the evidence presented that the children had little, if any, psychological or emotional bond with Father. The district court noted Father's demonstrated violent attitudes, his failure to pay child support, and his voluntary separation from his children. The district court cited Father's lack of significant contact with the children, the traumatic experience the children observed in the home, and the children's need for permanency in finding it was in their best interest for Father's rights to be terminated.
Although Father presented some evidence that he had bonded with his children, it is not this court's role to reweigh the evidence. As an appellate court, we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 705.
As this court has repeatedly recognized:
“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 conclude the district court did not abuse its discretion in finding that terminating Father's parental rights was in the children's best interests. Even if we were required to apply the stricter clear and convincing evidence standard, we conclude there was clear and convincing evidence to support the district court's finding that it was in the best interests of the children to terminate Father's parental rights.
Affirmed.