Opinion
No. 107,952.
2013-01-11
In the Interest of J.W., a Female, S.M., a Male, and J.W., a Male.
Appeal from Riley District Court; Paul E. Miller, Judge. Brenda M. Jordan, of Manhattan, for appellants. Bethany C. Fields, deputy county attorney, and Barry Wilkerson, county attorney, for appellee.
Appeal from Riley District Court; Paul E. Miller, Judge.
Brenda M. Jordan, of Manhattan, for appellants. Bethany C. Fields, deputy county attorney, and Barry Wilkerson, county attorney, for appellee.
Miranda Johnson, of Manhattan, guardian ad litem.
Before MALONE, C.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Prior to terminating a parent's parental rights, the district court must find by clear and convincing evidence that the parent is unfit, the conduct or a condition which renders the parent unfit is unlikely to change in the foreseeable future, and the termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1). L.W. (Mother), the natural mother of all three children, and J.W. (Father), the natural father of J.W. (female) and J.W. (male), appeal the termination of their parental rights. We are asked to determine whether the district court's decision adjudicating the children as children in need of care (CINC) and its subsequent decision terminating parental rights is supported by the evidence. Finding that we lack jurisdiction to review the CINC finding in this case, we dismiss that portion of parents' appeal. But finding that the district court's decision to terminate parental rights is supported by the evidence, we affirm.
Factual and Procedural Background
This family first became involved with Kansas Department of Social and Rehabilitation Services shortly after J.W.(f) was born in 2009. She was diagnosed with failure to thrive and later had issues with untreated diaper rash. The State filed a child in need of care (CINC) petition for J.W.(f) in August 2009. J.W.(f) was eventually returned to the home, although there was on-going supervision due to concerns about the family's living environment. The concerns included extremely unsanitary conditions, in part because of the large number of animals that were living in the home.
By June 2010, the aftercare worker recommended that Mother and the children vacate the family home due to the home's condition and related safety concerns. Father worked on cleaning the home, but was unable to make enough progress to render it safe for the children. The State filed CINC petitions for both J.W. (f) and S.M. The district court entered a temporary order of custody and the children were removed from the home. The parents entered a no contest plea to the CINC allegation.
J.W.(m) was born in April 2011. He initially remained in the family home. But by May 2011, there were increasing concerns about the condition of the home, including a lack of electricity and hot water. The parents had also been given an eviction notice. The State filed a CINC petition for J.W.(m) in May 2011. After an evidentiary hearing, the district court found clear and convincing evidence that J.W.(m) was in need of care.
In November 2011, the State filed a motion to terminate parental rights. The district court held an evidentiary hearing in order to hear testimony from witnesses and arguments from counsel. After hearing that evidence, the district court found by clear and convincing evidence that the parents were unfit due to several of the factors found at K.S.A.2011 Supp. 38–2269 and that the unfitness was unlikely to change in the foreseeable future. After determining that it was in the children's best interests, parental rights were terminated. Mother and Father appeal that decision to this court.
Analysis
We lack jurisdiction over the parents' claims concerning the CINC finding.
The parents first argue on appeal that the record did not support a finding that the children were in need of care. They ask that the CINC adjudication be overturned. However, they did not appeal the adjudication in a timely manner, therefore this court lacks jurisdiction to consider their claim. See State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010) (court has a duty to question jurisdiction on its own initiative).
The right to an appeal is purely statutory and, if the record shows that the appellate court does not have jurisdiction, the appeal, or the argument, must be dismissed. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010). There are two statutes which drive our analysis of this issue. First is K .S.A.2011 Supp. 38–2273(a), which allows for an appeal from “any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.” Under this statute, the parents could have appealed the CINC findings after they were made in September 2010 (as to S.W and J.W.[f] ) and June 2011 (as to J.W.[m] ). They did not. This leads to the application of the second relevant statute, K.S.A.2011 Supp. 60–2103(a), which requires that a notice of appeal must be filed within 30 days of the “entry of the judgment.” Again, as to both the CINC adjudications, the parents did not file a notice of appeal within 30 days.
While the notice of appeal in this case was unquestionably timely as to the termination of parental rights, it was untimely as to the CINC adjudications. Accordingly, we lack jurisdiction to consider the merits of the CINC appeal.
There was clear and convincing evidence to support the district court's termination of parental rights.
On appeal, parents argue that there was not clear and convincing evidence to support the termination of their parental rights. Specifically, they contend there was ample evidence to suggest that their behavior had changed and would change in the future. Given their “steady” progress, they maintain it was a mistake to terminate their parental rights.
The district court is required to make three findings before terminating parental rights. The court must find by clear and convincing evidence that the parent is unfit, the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future, and the termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1).
When this court reviews a district court's termination of parental rights, we consider “whether, after review of all the evidence, viewed in the light most favorable to the State, [the appellate court] is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that [the parent's rights should be terminated].” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In B.D.-Y., the court explained that “clear and convincing evidence” requires the factfinder to believe “that the truth of the facts asserted is highly probable.” 286 Kan. at 697.
In making a determination of unfitness, K.S.A.2011 Supp. 38–2269(b) and (c) provide factors for the court to consider. Although the court is not limited to the factors listed in the statute, the existence of any one of the listed factors may establish grounds for termination. K.S.A.2011 Supp. 38–2269(f).
The parents raise multiple arguments regarding the district court's findings at the termination hearing. We will examine each.
Clear and Convincing Evidence of Unfitness
The parents argue that there was not clear and convincing evidence of their unfitness. They specifically mention that there was inadequate evidence of emotional or mental illness and no evidence that the children were abused. They also contend that they were making steady progress on their reintegration tasks.
In the period following the filing of the original CINC petition for J.W.(f), the parents were working hard to keep the house clean and appropriate. But within 10 days there was a “lot of clutter” built up in the home. The parents had to be court ordered not to have animals in the home. At times they harbored as many as 3 adult dogs, 13 puppies, and over 20 rats. Mother was also considering the purchase of an alligator from an area pet store. The home's condition was an issue that was “continuously addressed” throughout the entire aftercare period.
Those issues led to the filing of the 2010 CINC petition. One case worker described the home as having clutter that was piled up to her waist. A witness described that it was impossible to walk through the home without walking on objects. There were cleaning supplies in the children's bedroom and a large amount dog feces and urine in the bathroom, where neither the sink nor the toilet was functional and the family had to shower at a neighbor's house.
These issues with clutter continued at other residences. The family home in St. George, which had a large hole in the floor, was not always appropriately cleaned and cleared of clutter. At one point, there was a pile of dirty diapers on the bathroom floor. The hole in the floor was covered by a mattress which took up the entire floor.
The issues with the condition of the house continued despite the fact that the parents were assigned case plan tasks which included: making sure the home was clean and free of clutter. They were also required to seek employment, follow up on disability payments, and participate in family therapy. There was also an expectation that the parents would achieve and maintain appropriate housing. But between April and September of 2011 the parents changed residences four times. They lived in homeless shelters in Junction City and Topeka. At the time of the termination hearing, the parents were living in a one bedroom apartment.
At one point during the pendency of the case, the parents' visits with the children were stopped after it was discovered that they had not paid rent for 8 months and were facing eviction. The electricity was also turned off. During those visits, case workers noticed that Mother and Father would raise their voices and parent “from a distance” instead of interacting more closely with the children. Workers also saw J.W.(m) being treated roughly during diaper changes. The testimony was that there was still work that needed to be done on parenting skills, despite the parents completing a parenting class.
The parents were offered vocational rehabilitation services. However, they did not follow through and obtain the benefit. Mother also testified that therapy was not helpful.
Father claimed to be working, but never provided pay stubs or other proof of employment. Mother was not employed at the time of the termination hearing. Mother did work in a retail position for a short time. Mother claimed that she could not work because of a seizure disorder. However, evidence was presented that she had been cleared to return to work.
Traci Booth, a TFI case manager, testified that the children could not be reintegrated because there were case plan tasks that had been consistently pending for a year. These continued issues left the parents unable to meet the children's needs. S.M. was in therapy and it is suspected that he has ADHD. He was described by the psychologist as “defiant of his mother's attempt to set limits” and “a disrupted child who needs consistent structure and support.” J.W.(f) was described as “very active” and “kind of a bully.”
The parents are correct when they suggest that there was not clear and convincing evidence of all of the factors found at K.S.A.2011 Supp. 38–2269, such as emotional or mental illness, use of narcotics or alcohol, or conviction of a felony. But it does appear that there was clear and convincing evidence to support the district court's finding of unfitness under K.S.A.2011 Supp. 38–2269(b)(4) (physical neglect); K.S.A.2011 Supp. 38–2269(b)(7) (failure of reasonable efforts by appropriate public or private agencies to rehabilitate the family); K.S.A.2011 Supp. 38–2269(b)(8) (lack of effort on the part of parents to adjust their circumstances to meet the needs of their children; and K.S.A.2011 Supp. 38–2269(c)(3) (failure to carry out a reasonable reintegration plan). The presence of one of the statutory factors may be enough to justify the termination of parental rights. See In re C.C., 29 Kan.App.2d 950, 953, 34 P.3d 462 (2001).
As the district court noted when ruling from the bench, the parents have had the same issues come up “over and over and over again.” These issues include lack of stable housing and steady employment. It does not appear that the parents have been able to keep an appropriate home in an appropriate condition for any length of time. And the record on appeal shows very little verified employment by either parent. The evidence presented at the termination hearing provides clear and convincing evidence of the parents' unfitness.
Circumstances Unlikely to Change in the Foreseeable Future
The parents also argue that they took “multiple steps” to adjust their circumstances in order to meet the children's needs. To determine if a parent's conduct or condition is unlikely to change in the foreseeable future, the “ ‘foreseeable future’ “ should be viewed from the children's perspective, not the parents. In re C.C., 29 Kan.App.2d 950, Syl. ¶ 2.
This case was first filed in 2010, when the initial complaints centered around the parents' housing. Concerns about housing persisted into 2011, when the motion to terminate parental rights was filed. There were even complaints about Mother's hygiene and cleanliness while they were staying in the Topeka homeless shelter. At the time of the termination hearing, the parents were living in a one bedroom apartment, which might not have been appropriate for two children. Four months before the termination hearing, the psychologist who had been recommended and requested by Mother, reported to the district court that if reintegration was attempted, it would need to be closely monitored for several years and then only accomplished in a “stepwise fashion after the parents have sufficiently proved that they can care for their own needs first and consistently. Then [reintegration] could be tried with one child, then a second, etc.” He further stated that it was very important that the children have a stable home and “not drift through numerous foster homes and wait a long time for an adoptive home.”
The children in this case have been living with uncertainty for a long time already, and based upon the evidence presented, when viewed in the light most favorable to the State as we are required to view it, it does not appear that either parent is in a position to offer stability in the foreseeable future. There remains questionable housing and no employment. In addition, the parents have been unable to demonstrate an ability to keep a home clean and free of unsafe clutter at any point during the pendency of this case. All of those factors, when viewed through the children's eyes, provide clear and convincing evidence to support the district court's finding that the parents' unfitness is unlikely to change in the foreseeable future.
Best Interests of the Children
The parents suggest there was insufficient evidence presented to the district court on the issue of whether termination was in the children's best interests. The parents contend that their issues were linked to financial need, and that they were bonded to the children.
When determining best interests of the child, the district court must weigh the benefits of permanency for the children without the presence of their parent against the continued presence of the parent and the attendant issues created for the children's lives. In making such a determination, the 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, 223 P.3d 746 (2010).
The district court expressly found when ruling from the bench that the best thing for the children was to not have another extended placement out of the home because the parents failed to make any appreciable progress. The district court was mindful of the fact that the children have been out of the home since 2010. A case worker testified that the children needed stability, particularly with housing. She acknowledged that removing the children from the home could be traumatic. Even in light of that fact, she still believed that reintegration was no longer viable.
The parents did not present evidence to counter the testimony that termination was in the children's best interests. In fact, Mother admitted that S.M. was having a hard time coping with the uncertainty. When the court views the children's placement using child time, it appears that a certain resolution of this case is in the children's best interests, especially given the parents' lack of sustainable progress. Accordingly there was clear and convincing evidence to support the district court's finding that termination was in the best interests of the children.
Application of the Statutory Presumption of Unfitness
The parents' final argument is that the district court improperly applied the statutory presumption of unfitness found at K.S.A.2011 Supp. 38–2271. The parents contend the State never properly alleged that the statutory presumption applied and that there was insufficient evidence to allow the district court to apply the presumption on its own initiative.
The statute at issue here, K.S.A.2011 Supp. 38–2271, provides that a parent is presumed unfit, in the manner provided in K.S.A. 60–414, if the State establishes one of several listed factual circumstances related to the care of his or her children. One of the listed circumstances, and the one cited by the district court here, is a finding that on two or more occasions a child in the parent's physical custody has been deemed a child in need of care. See K.S.A.2011 Supp. 38–2271(a)(3). If the presumption is properly proven, the burden of proof shifts to the parent to rebut the presumption of unfitness by a preponderance of the evidence. K.S.A.2011 Supp. 38–2271(b).
In order for the statutory presumption to be applied in a constitutional fashion, the district court must first determine whether it is a K.S.A. 60–414(a) or (b) presumption. In re J.L., 20 Kan.App.2d 665, 681, 891 P.2d 1125,rev. denied 257 Kan. 1092(1995). When the presumption of unfitness is a subsection (a) presumption it is derived from facts which have probative value as proof of the presumed facts. 20 Kan.App.2d at 677–78. When the presumption of unfitness is a K.S.A. 60–414(b) presumption, “ any evidence which would support a finding of fitness, including the uncorroborated testimony of a parent, will result in the disappearance of the presumption, and the burden of proving unfitness will once again be upon the State.” 20 Kan.App.2d at 681.
The district court addressed the statutory presumption when ruling from the bench, noting that it was applying the K.S.A. 60–414(a) presumption and referred to the existing undisputed fact in the case that S.M. and J.W.(f) had already been adjudicated as children in need of care. But the parents' point is well taken, that those adjudications were not “prior” adjudications, but were adjudications in the very same case before the court, at least as to S.M. and J.W.(f). There was undisputed testimony from Mother that she had another child in Oklahoma that had been declared a child in need of care several years earlier and who she had recently relinquished for adoption, but the district court does not appear to be referring to that case. In addition, it does not appear that the State ever attempted to apply the statutory presumption.
But even though we find that the district court did not properly apply the statutory presumption of unfitness, that fact is immaterial given that there was clear and convincing evidence of the parents' unfitness and the appropriate steps were followed to terminate parental rights without considering the presumption.
As the district court found, there is no question that the parents love their children. But notwithstanding that love they have failed to demonstrate that they are able to adequately care for them now or in the foreseeable future. As we have already indicated, we are limited to determining whether the evidence relied upon by the district court supports its findings. After a complete review of the facts, and the district court's order, we find that termination of the parents' parental rights was supported by clear and convincing evidence. Accordingly, we affirm the district court's termination of the parents' parental rights.
Affirmed in part and dismissed in part.