Opinion
No. 106,877.
2012-06-22
In the Interest of K.M., K.A., K.N., and K.A.
Appeal from Wyandotte District Court; Daniel Cahill, Judge. James T. Yoakum, of Kansas City, for appellant. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.
James T. Yoakum, of Kansas City, for appellant. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mother's parental rights were terminated after the district court found that Mother was an unfit parent and unlikely to change in the foreseeable future. Mother appeals, arguing that (1) several of the district court's orders promoting reintegration of the children with Mother were not necessary to promote the best interests of the children and (2) Mother's due process rights were violated. We find no merit to Mother's arguments and, therefore, affirm the order of termination.
Facts
K.A. (Mother) is the natural mother of four children: 5–year–old K.M., 7–year–old K.A., 8–year–old K.N., and 12–year–old K.A. On April 20, 2010, the State filed petitions to have all of the children declared children in need of care. The petitions each made the same factual allegations—that the children were in need of care because they had witnessed acts of domestic violence between Mother and her boyfriend E.M., who is also the natural father of K.M. and 7–year–old K.A. and a father figure to the other children. The elder K.A. told the Kansas Department of Social and Rehabilitation Services (SRS) that E.M. threatened to kill her, Mother, and K.N. by setting their house on fire.
The petitions also included allegations that E.M. had sexually abused the elder K.A. K.A. told SRS that E.M. raped her on two occasions while Mother was asleep on a couch. K.A. said she told Mother about the rapes, but Mother did not do anything. K.A. also told SRS she believed E.M. was sexually abusing K.M.; on one occasion K.A. noticed that K.M.'s dress was up after K.M. had been alone with E.M. In 2008, SRS substantiated that E.M. was sexually abusing the elder K.A., and on January 8, 2010, E.M. was convicted of aggravated indecent liberties with a child for his conduct with K .A. In 2008, Mother was directed that she and the children should not have contact with E.M. However, in an interview immediately before the petitions were filed, the children told SRS that E.M. still came to the house and sometimes spent the night on the couch.
According to the petitions, the children's school expressed concern with Mother's ability to care for the children. The school reported that the children attended school dirty and that K.A., who was in fourth grade at the time, could not read. The school also told SRS that Mother showed up for parent-teacher conferences smelling of alcohol. On April 19, 2010, Mother took a drug test for SRS and tested positive for marijuana, PCP, and cocaine. Mother admitted to using drugs in the few days before her test but denied that she regularly used drugs or had a drug problem. At a temporary custody hearing on April 20, 2010, SRS was granted temporary custody of all four children.
At a hearing on May 5, 2010, Mother stipulated that the children were in need of care pursuant to K.S.A.2011 Supp. 38–2202(d)(l)–(3), citing physical and sexual abuse and lack of parental care and control. Mother waived her right to an evidentiary hearing. The court adopted several interim orders designed to facilitate reintegration of the children with Mother. These included orders that Mother would participate in psychological evaluation and RADAC assessment, submit to drug tests, maintain stable housing and income, and attend supervised visits with the children.
On June 7, 2010, a disposition hearing was held at which several concerns were raised about the possibility of reintegrating the children with Mother. A disposition report was submitted by a court services officer (CSO) that stated Mother was allowing E.M. to speak with the children during supervised visits despite discussion that Mother and the children should not have contact with E.M. Additionally, Mother brought several different family members and friends to visits with the children. Finally, the report stated Mother continued to deny that E.M. sexually abused K.A., and Mother had not progressed on other court orders. At the hearing, the district court noted that reintegration of the children with Mother may or may not be viable, but it was still the primary goal.
The district court held a review hearing on September 13, 2010. The CSO submitted a report for the hearing that stated since the disposition hearing, Mother had twice tested positive for drugs, not showed for another test, and refused a fourth test. The report also said Mother continued to deny E.M.'s sexual abuse of the children. The CSO recommended a termination trial be held in 90 days. Based on the report and the hearing, the district court adopted additional orders for Mother, including individual and family therapy.
On December 22, 2010, the State moved to terminate Mother's parental rights for all of the children. The State alleged Mother had not complied with the orders supporting reintegration of the children. In particular, the State contended that Mother had continued to allow E.M. to have contact with the children, and Mother continued to deny that E.M. sexually abused the elder K.A. The State also noted that Mother had tested positive for drugs on several occasions and refused a test or failed to show up for a test on other occasions. Additionally, the State said Mother had failed to complete parenting classes. Based on these circumstances, the State asserted Mother was an unfit parent who could not properly care for her children, and her conduct was unlikely to change in the foreseeable future.
A termination hearing was set for January 13, 2011, but it was continued and a status hearing was held on March 23, 2011. At that hearing, the district court determined that reintegration with Mother was no longer a viable goal for any of the children. The district court also determined that proceedings should move forward to terminate Mother's parental rights and that pursuing adoption was the new plan.
On April 28, 2011, the district court held a termination of parental rights trial pertaining to Mother and the known fathers of all of the children. When the parties entered their appearances, Mother's lawyer stated that Mother had come to the courthouse for the hearing but “absconded” before it started. Mother's attorney said that Mother had not instructed him to object to the State proceeding by proffer. He also said that before the proceeding began, Mother indicated she was willing to stipulate to terminating her parental rights but she left the courthouse before the attorney could review the appropriate document with her.
The State proceeded by way of proffer. The State asserted Mother tested positive for PCP and cocaine on three occasions and refused drug tests on other occasions. The State also asserted Mother missed five visitation appointments with the children and allowed relatives at visitations, although she was instructed not to bring other people. The State asserted Mother refused a walk-through of her home, and the State was not certain that Mother had stable housing. In addition, the State asserted Mother waited a long time to complete her psychological evaluation and did not attend ordered parenting classes.
At one point during the hearing, Mother returned to the courthouse, although she did not go in the courtroom where the hearing was being held. Mother's attorney told the court that he attempted to review documents with Mother pertaining to waiver of trial and stipulation to termination of parental rights but that Mother “said she doesn't even want to come in here at this point.” Mother's attorney told the court to continue with the trial by way of proffer of evidence from the State.
In rendering judgment, the district court stated that Mother's actions of leaving the courthouse and returning but refusing to participate in the hearing were “tantamount to a short-form stipulation in this case.” The court stated Mother's actions conveyed that she “apparently has abandoned her efforts at this point.” Thereafter, the district court found by clear and convincing evidence that Mother was an unfit parent and was unlikely to change in the foreseeable future. The district court determined that termination of Mother's parental rights was in the children's best interests; Mother's parental rights were terminated.
1. The Court's Interim Orders
In the first issue on appeal, Mother argues that the district court's orders were unnecessary to promote the best interests of the children; thus, the district court erred in terminating Mother's parental rights when she failed to complete those orders. The State maintains that Mother's argument is without merit, and the court properly terminated her parental rights.
Standard of Review
Kansas law dictates that a parent's rights may be terminated if a district court has adjudicated that the parent's child is in need of care and, by clear and convincing evidence, 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.2011 Supp. 38–2269(a). K.S.A.2011 Supp. 38–2269(b) lists several considerations for a district court determining the fitness of a parent. The existence of any of these considerations, “standing alone may, but does not necessarily, establish grounds for termination of parental rights.” K.S.A.2011 Supp. 38–2269(f).
Kansas appellate courts review a district court's decision to terminate a natural parent's rights for clear and convincing evidence. In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 (2008). The In re B.D.-Y. court defined the clear and convincing evidence standard; it rejected previous explanations of the standard. See 286 Kan. at 705. This definition of the standard now applies:
“[W]hen an appellate court reviews a trial court's determination that a child is in need of care, it should consider whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that the child was a [child in need of care].” 286 Kan. at 705.
Although In re B.D.-Y. was a child in need of care case, the court expressly stated that its definition also applies to TPR cases. 286 Kan. at 697, 706. In applying the clear and convincing evidence standard, appellate courts do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
The district court properly terminated Mother's parental rights.
The district court terminated Mother's parental rights after finding that her conduct violated several of the considerations listed in K.S.A.2011 Supp. 38–2269(b). In particular, the district court found that Mother's conduct, as laid out in the State's proffer at the termination hearing, was contrary to these considerations in the statute:
• K.S.A.2011 Supp. 38–2269(b)(3): “the use of intoxicating liquors or narcotic or dangerous drugs of such duration or nature as to render the parent unable to care for the ongoing physical, mental or emotional needs of the child;”
• K.S.A.2011 Supp. 38–2269(b)(4): “physical, mental or emotional abuse or neglect or sexual abuse of a child;”
• K.S.A.2011 Supp. 38–2269(b)(7): “failure of reasonable efforts made 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 the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child.”
The district court also referred to K.S.A.2011 Supp. 38–2269(c)(3), which requires a district court determining the fate of parental rights to consider a parent's “failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home.” The district court found that Mother had not participated in plans and orders designed to reintegrate the children with her.
When the district court was still pursuing reintegration of the children with Mother, it gave Mother several interim orders, including abstaining from contact with E.M. and submitting to drug tests. Mother argues these orders had “little tie to [her] abilities to parent or improve her actual lack of parenting skills.” Specifically, Mother claims the State failed to show that Mother testing positive for illegal drugs and attending one of the children's parent-teacher conference smelling of alcohol was a negative condition for the children. Mother also claims the district court's order that Mother abstain from contact with E.M.—who was accused and eventually convicted of a sex crime against the elder K.A.—was improper. Mother asserts the district court should have prohibited that the children be alone with E.M. but should have allowed her to continue seeing E.M. to collect support money from him.
Mother's arguments are contrary to the considerations listed in the statute. Under Kansas law, the district court was required to consider factors such as Mother's drug and alcohol use and Mother's role in the sexual abuse of her children. See K.S.A.2011 Supp. 38–2269(b)(3), (4). On appeal, Mother does not deny that she acted contrary to any of the statutory considerations the district court discussed at the termination hearing. In fact, after SRS first filed a petition against Mother, she stipulated the children were in need of care. At the termination hearing, Mother did not object to the State's proffer of evidence against her and did not put on evidence to show that she had acted to improve her ability to care for her children.
The district court properly accepted the State's proffer as evidence of Mother's conduct. On appeal, this court views the evidence in the light most favorable to the State and does not pass on the credibility of the evidence. See In re B.D.-Y., 286 Kan. at 705. Under that standard, the evidence at the termination hearing—including Mother's drug abuse, failure to attend visitations or comply with the terms of visitations, and failure to comply with housing and parenting class requirements—was sufficient for a rational factfinder to find it highly probable that Mother was an unfit parent and unlikely to change in the foreseeable future. See In re B.D.-Y., 286 Kan. at 705.
2. Due Process
Mother also raises two distinct due process arguments. She first argues that her due process rights were violated when the district court ratified the State's approval of adoption, making the children available for adoption before the termination of parental rights trial. Second, Mother argues the district court improperly presumed Mother to have waived challenge to the State's proffer of evidence at the termination trial. These arguments will be addressed separately but under the same standard of review.
Standard of Review
Whether a right to due process has been violated is a question of law that this court reviews de novo. In re K.E., 294 Kan. 17, 272 P.3d 28, 32 (2012) (citing Davenport Pastures v. Board of Morris County Comm'rs, 291 Kan. 132, Syl. ¶ 2, 238 P.3d 731 [2010] ). The fundamental due process right is “the opportunity to be heard at a meaningful time and in a meaningful manner.” In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) (citing Mathews v.. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 [1976] ). “A due process violation exists only when a claimant is able to establish that he or she was denied a specific procedural protection to which he or she was entitled.” In re J.D.C., 284 Kan. at 166.
The district court did not violate Mother's due process rights when it ratified the State's approval of adoption.
Mother argues she was deprived of her opportunity to be heard because the district court “ratified the State's approval of making her children available for adoption prior to the trial allegedly conducted to determine termination of her rights.” She asserts that beginning adoption proceedings before her parental rights were terminated deprived her of meaningful opportunity to defend her interest in the children. The State maintains that the procedures were proper and complied with the Kansas Code for the Care of Children.
K.S.A.2011 Supp. 38–2263(b) mandates that a permanency plan be made for children subject to the jurisdiction of the district court. Under this permanency plan, the district court must determine whether reintegration with the natural parent is a viable option for children not currently living outside of the home. K.S.A.2011 Supp. 38–2263(d). If reintegration is not viable, adoption is a possible permanency goal to be set for the children. K.S.A.2011 Supp. 38–2264(b)(2). When a district court finds that reintegration with the natural parent is not a viable option, the law states that the county or district attorney must file a motion to terminate parental rights or a motion to appoint a guardian within 30 days. K.S.A.2011 Supp. 38–2264(g).
On March 23, 2011, the district court conducted a permanency hearing compliant with the laws above. At that hearing, the district court determined that reintegration with Mother was no longer a viable goal for any of the children. The district court also determined that proceedings should move forward to terminate Mother's parental rights and that pursuing adoption was the new plan. Mother's argument is that setting adoption as a permanency goal undercut her ability to defend her parental rights.
Children cannot be adopted until the natural parent's rights have been terminated. K.S.A.2011 Supp. 38–2270(a). As the State points out, the children in this case have not achieved permanency because Mother's parental rights exist while this appeal is pending. The children have not been prematurely adopted, and the district court proceeded with permanency planning and termination of Mother's parental rights in accord with the law.
Mother's due process rights were not violated by the district court's finding that she waived her challenge to the State's proffer of evidence.
Mother claims the district court improperly waived her right to challenge the State's proffer of evidence because Mother was absent at the termination hearing. Specifically, Mother argues that “her appearance and voluntary removal from the proceedings did not signal abandoning her opposition to the termination of her parental rights.” The State asserts Mother has not properly preserved this issue for appeal because she did not object to termination by way of proffer and did not present evidence at the termination trial.
The record reflects that Mother went to the courthouse on the day of her termination trial but chose to leave before the proceedings started. Mother's attorney made this statement when he entered his appearance:
“MR. PROBST: May it please the Court, Raymond Probst appearing on behalf of the natural mother, who does not appear. However, for the record, I would like to indicate that [Mother] did show up before the hearing. I then visited with her prior; and since, she has—after visiting with her, she has absconded.”
Before the State began to proffer evidence against Mother, the district court inquired as to whether Mother had left instructions for her attorney to object to the trial proceeding by way of proffer from the State:
“THE COURT: ... Mr. Probst, has your client, before leaving here today, instructed you to object to the State proceeding by way of proffer?
“MR. PROBST: No, Your Honor.
“THE COURT: All right. And just so we memorialize the conversation we had before we came on the record, my understanding was that you spoke with her. She indicated that she was willing to stipulate to termination of her ... parental rights. By the time that you prepared the document to review with her, she left the Courthouse.
“MR. PROBST: That's correct, Your Honor.”
Finally, the record reflects that at some point during the termination trial, Mother returned to the courthouse but chose not to enter the room where the trial was being held.
“THE COURT: ... Mr. Probst, what did we find out?
“MR. PROBST: Judge, I reviewed the Waiver of Trial and Stipulation to Termination of Parental Rights; but she said she doesn't even want to come in here at this point, so just to proceed on with what we were doing.”
As a result of these events, the district court determined that Mother had stipulated to the State's proffer of evidence and waived her right to challenge that evidence.
“THE COURT: [W]hat we basically have here is the mother, by her actions—and what I specifically am talking about, that she agreed to enter into a stipulation, but then left the Courthouse, came back, and indicated that she doesn't want to be here. I think it's tantamount to a short-form stipulation in this case.
“But ... she was aware of this court hearing, did some things in the days leading up to the trial, but apparently has abandoned efforts at this point.”
Although appellate courts generally do not consider arguments raised for the first time on appeal, an exception exists when consideration of the arguments is necessary to prevent denial of fundamental rights. In re S.D., 41 Kan.App.2d 780, 787, 204 P .3d 1182 (2009). Parents have a fundamental right under the Fourteenth Amendment to the United States Constitution to make decisions concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Thus, we will review Mother's claim on its merits.
On its merits, however, Mother's claim fails. Kansas law states that “[i]n evidentiary hearings for termination of parental rights under this code, the case may proceed by proffer as to parties not present, unless they appear by counsel and have instructed counsel to object.” K.S.A.2011 Supp. 38–2248(f). As depicted above, the record reflects an exchange between the district court and Mother's attorney in which Mother's attorney expressly stated that Mother did not instruct her lawyer to object to proceeding with the trial by way of proffer.
Mother clearly had the ability to attend and participate in the termination trial; it was her choice to abscond from the courthouse and then refuse to go into the courtroom after she returned to the courthouse. The record reflects that she was given an opportunity to object to the State's proffer of evidence against her, and the district court properly inquired as to whether she had left instructions for her attorney to object in her absence. Under K.S.A.2011 Supp. 38–2248(f), the trial properly proceeded with the State's proffer, which the district court properly determined was clear and convincing evidence of Mother's unfitness and inability to change in the foreseeable future.
Affirmed.