Opinion
No. 111,710.
2014-11-21
In the Interest of L.K.G., Child Under the Age of 18 Years.
Appeal from Johnson District Court; Kathleen Sloan, Judge. Richard P. Klein, of Olathe, for appellant natural father. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kathryn Barker, guardian ad litem, for appellee.
Review Denied February 19, 2015.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
Richard P. Klein, of Olathe, for appellant natural father. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kathryn Barker, guardian ad litem, for appellee.
S.T. (Father) appeals termination of his parental rights to L.K.G. K.G. (Mother) also appeals the termination of her parental rights to L.K.G., as well as to her two other minor children, A.G. and A.F. We address Mother's appeal in a separate opinion issued today. See In re A.F., A.G., and L.G. (No. 111,731, this day decided). Father claims there is insufficient evidence to support the district court's findings of unfitness and the district court abused its discretion when it found that termination of his parental rights was in the child's best interests. We disagree and affirm.
Mother and Father were involved in a brief romantic relationship in the summer of 2008, which resulted in the birth of L.K.G. in July 2009. Father did not learn that he had a son until L.K.G. was about 4 months old.
After Mother and Father ended their relationship, Mother resumed a relationship with B.F., the natural father of the other two children addressed in Mother's appeal. In January 2010, when L.K.G. was approximately 6 months old, Mother and B.F. were driving through Arkansas when the police pulled over their vehicle. After stopping the vehicle, B.F. exited and ran from the police because he knew he had a warrant issued for a parole violation. B.F. was arrested and went back to prison; Mother was arrested for public intoxication. Father was not involved in this incident. L.K.G. was in the vehicle at the time of the stop and was taken into state custody in Arkansas. Mother subsequently moved to Arkansas and successfully completed the reintegration plan. Father testified he tried to reintegrate L.K.G. into Father's grandparents' home but was denied due to his criminal history and his probation. Father was incarcerated toward the end of the Arkansas case plan and ultimately failed to reintegrate with L.K.G.
In March 2013, L.K.G. was present when Father and Mother were involved in a physical altercation. Deputy Brian Davis testified he was dispatched on a child abduction case. It appeared to Davis that Father and Mother were in a relationship at the time of the incident. Mother reported that she and Father got into an argument over money owed to her; Father became aggressive, grabbed Mother by the throat, and choked her. There were lacerations on Mother's face below her eye where Father bit her. Mother reported Father bit her so hard “it felt like it hit the bone.” Mother also reported there had been a prior incident when Father bit her on the hand. Mother indicated to Davis that she believed Father was having some mental health issues; he was possibly bipolar. Father took L.K.G. and was subsequently arrested. L.K.G. was not placed in police protective custody; Mother arranged for L.K.G. to stay with an aunt.
The Department for Children and Families (DCF) received the report of Father's physical and emotional abuse against Mother and filed a child in need of care petition for L.K.G. The Leavenworth District Court issued an ex parte order of protective custody. DCF had information L.K.G. was living with a relative, but when the caseworker went to the relative's home, she was unable to locate L.K . G. The police were contacted, and after a difficult search L.K.G. was finally located and taken into custody. DCF recommended out-of-home placement for L.K.G.
L.K.G.'s case was transferred from Leavenworth County to Johnson County on April 9, 2013, and the cases involving all three of Mother's children were combined. Mother and B.F. had already been issued 4–month reintegration plans due to their children being placed into custody at an earlier date; when L.K.G. was brought into custody, Mother's case plan tasks were amended. Father was never issued a formal reintegration plan but was given case plan tasks. The goal for Father was reintegration with L.K.G. when these case plan tasks were established.
Megan Moser was the case manager with KVC Behavioral Healthcare (KVC) assigned to manage the cases involving Mother's three children, including L.K.G. Moser testified that the case plan was a foundation for a reintegration plan, and parents have case plan tasks until the court terminates their parental rights. On April 12, 2013, case plan tasks were created for Father. Father was incarcerated during this time; he had approximately 6 months to complete his case plan tasks. Father was required to obtain and maintain appropriate and stable housing. He briefly lived with Mother's grandmother, then moved in with his father, and then back in with the grandmother. At some point, Father moved in with his aunt and uncle. Father admitted this was not his long-term housing plan and acknowledged this home was not suitable for L.K.G. because he would not have his own room and there were drugs and alcohol in the residence.
Moser testified she believed Father was unfairly lumped in with the cases involving Mother and B.F. However, it was Moser's opinion that it was in L.K.G.'s best interests to terminate Father's parental rights. Moser testified Father provided a valid driver's license in April 2013, but his license was suspended in July and then reinstated in October. Father also had to provide budgets to show he could support L.K.G. Unfortunately, Father only provided two paystubs and one budget. Father testified he was working at a seasonal job, but due to inclement weather he was unable to work regularly. Father was also required to provide proof of a mental health assessment. He completed the level 1 mental health assessment but failed to show proof he completed the recommendations of the evaluation. Father was supposed to continue with individual therapy sessions with a licensed therapist. However, he stopped working with one therapist KVC provided and said he would seek out a therapist on his own. Father ultimately went to his pastor, whom he incorrectly believed was licensed. Father provided proof he completed some parenting classes, but he failed to complete a domestic violence assessment. Father also had some inconsistencies regarding his visitation schedule. Father missed visits when he was incarcerated and on an occasion when he and Mother decided to drive to Missouri instead. Once, Father showed up 15 minutes late.
Hannah Benger, an outpatient therapist with KVC, was also assigned to L.K.G.'s case. At the hearing, Benger reiterated the same complaints Moser addressed regarding Father's progress. She testified Father still had not completed his domestic violence assessment, had provided no proof of following the recommendations from his mental health evaluation, and still had no proof of housing. Benger acknowledged that Father had applied for a spot in the Hillcrest program, a transitional housing program offering a 3–month period of rent-free and utility-free housing where residents were required to meet certain conditions. Benger also had concerns regarding Father's reporting; she believed the information was not accurate.
Father admitted he had made some bad decisions in his past. Father grew up around drugs and alcohol; he started using by experimenting with drugs he found at home. Father had a history of using marijuana and cocaine but testified he had been clean from cocaine for almost 2 years and clean from marijuana since March 2013. In April 2013, Moser asked Father to submit to a urinalysis test, but he said he was unable to do so. Father also failed to complete the hair follicle test, which was paid for by KVC.
Father addressed his criminal history. In 1998, Father was 14 years old when he was first incarcerated for 8 weeks in a juvenile facility. In 1999, Father was not quite 16 when he was adjudicated an adult and incarcerated for 60 months. In 2003, Father was released on parole. In 2004, Father served 60 days for violating his parole; he did not pay a traffic ticket and his license was suspended. In 2007, Father spent 1 month in Wyandotte County jail. He completed probation sometime in 2008. Father spent an additional week in Wyandotte County jail in 2008; his probation was complete in 2009 or early 2010. In 2010, Father was charged with a felony and spent 1 month in jail and 6 months at a residential center. Father was released in August 2011.
Father testified he felt like Moser failed to provide him with tools he needed to accomplish his case plan tasks. However, Father did earn his GED while he was incarcerated. Father got himself into college, obtained a full-time job, and began classes in 2004. He stopped attending classes because he stipulated to a parole violation and served 60 days in jail. Father again enrolled in classes at Johnson County Community College in 2012, successfully completed two classes, and said he planned to finish his college education. Father said he was looking into the Hillcrest program and was calling on an almost daily basis, and he said he was signed up for a domestic violence assessment.
When L.K.G. went into care, he had delayed speech and appeared to be more aggressive than most 3–year–old children. Both issues improved when L.K.G. moved in with his foster parents. L.K.G.'s foster mother testified that in the beginning they needed to set boundaries for L.K.G. in order to stop him from throwing toys and hitting the other children in the home. L.K.G. closely watched the interactions between the foster parents. On one occasion, L.K.G. observed the foster father taking car keys out of the foster mother's purse in order to start the car. L.K.G, appeared to be upset; he hollered for the foster mother to warn her that the foster father took her keys. The foster parents reassured L.K.G. everything was okay. There were additional concerns regarding law enforcement officers. L.K.G. was apprehensive when he saw a police officer; he was worried the police would pull the foster mother over and take her to jail. According to the foster mother: “[U]sually you can give [L.K.G.] two choices and he is A–OK with either one.” Following a visit with Father and Mother, L.K.G. was given two choices while the foster family was in the grocery store. L.K.G. did not like either choice, and the foster mother testified: “[L.K.G.] threw a full-on tantrum on the floor in the grocery store—kicking, screaming, arms flailing to the point where cashiers were coming to make sure if we were—if we were okay, what was going on.” L.K.G. also referred to Father and Mother as his “old parents.” L.K.G. was doing well and appeared to be happy in his placement home.
After hearing testimony and reviewing notes, transcripts, and cases where the court took judicial notice, the district court found by clear and convincing evidence that L.K.G. was a child in need of care and Father was unfit to properly care for him. The district court found the conditions of Father's unfitness were unlikely to change in the immediate or foreseeable future and concluded it was in L.K.G.'s best interests to terminate Father's parental rights.
Father timely appeals.
Father argues on appeal the district court's finding of unfitness is not supported by clear and convincing evidence. He also contends the district court erred by terminating his parental rights.
If a child is adjudicated a child in need of care, parental rights may be terminated “when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” K.S.A.2013 Supp. 38–2269(a). K.S.A.2013 Supp. 38–2201 et seq. , the Revised Kansas Code for Care of Children, lists a number of nonexclusive factors the district court must consider in determining a parent's unfitness. See K.S.A.2013 Supp. 38–2269(b) and (c). Any one of the factors may, but does not necessarily, establish grounds for terminating a parent's rights. See K.S.A.2013 Supp. 38–2269(f). The district court is not limited only to the statutory factors in making a determination of unfitness. See K.S.A.2013 Supp. 38–2269(b).
When reviewing a district court's findings on this point, our standard of review is clear: The district court's findings must be supported by clear and convincing evidence. K.S.A.2013 Supp. 38–2269(a). We determine whether such evidence could have convinced a rational factfinder such facts were highly probable by clear and convincing evidence when viewed in the light most favorable to the State. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In making this determination, we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
In the present case, the district court found Father unfit based on the following statutory factors:
• KVC made reasonable and appropriate efforts that failed to assist Father in reintegrating with his child, satisfying K.S.A.2013 Supp. 38–2269(b)(7). These efforts included transportation of L .K.G. to visits, meeting L.K.G.'s needs, offering to pay for Father's hair follicle test, and providing general case management on a regular basis.
• There was a lack of effort on Father's part to adjust his circumstances, conduct, and conditions in order to meet the needs of his child, satisfying K.S.A.2013 Supp. 38–2269(b)(8).
• Father failed to maintain regular contact and communication with his child and KVC at various points in time, satisfying K.S.A.2013 Supp. 38–2269(c)(2).
• Father failed to complete the tasks necessary to reintegrate with his child, satisfying K.S.A.2013 Supp. 38–2269(c)(3).
First, we must determine whether the district court's findings of unfitness were supported by clear and convincing evidence. Father argues the evidence presented was not sufficient to convince a rational factfinder that he was unfit. He contends KVC did not provide reasonable efforts to help him reintegrate with L.K.G. and he was held to a higher standard than other similarly situated parents. Father also claims the district court could not determine he was unfit because he was never issued a formal reintegration plan.
The record is clear that while Father was not issued a formal reintegration plan, he was given case plan tasks with a goal of reintegration. Moser testified she believed Father was held to a different standard, but this had more to do with the amount of time he had to complete his case plan tasks. In terms of stability and consistency, he was held to the same standard as other parents. Moser acknowledged it would have been difficult to show stability and consistency in such a short amount of time, and that is why she told Father he needed to “wow” her and that he needed to “blow it out of the water.” Moser claimed she was trying to encourage Father and to give him hope that he could succeed.
Father failed to complete his case plan tasks: He was unable to obtain and maintain stable housing; he failed to complete the domestic violence assessment; he failed to complete the hair follicle test; and he failed to meet with a licensed therapist. In addition, L.K.G. was present when Father physically and emotionally abused Mother. Father had a lengthy criminal history and instability involving drug use. Based on the aforementioned facts, there was clear and convincing evidence to support the district court's determination that L.K.G. was a child in need of care and Father was unfit by reason of conduct or condition which rendered him unfit to properly care for his child.
Our next step is to determine whether clear and convincing evidence supported the district court's determination that Father's behavior was unlikely to change in the foreseeable future. See K.S.A.2013 Supp. 38–2269(a). The term “ ‘foreseeable future’ “ is measured from the child's perspective and takes into account a child's perception of time. In re S.D., 41 Kan.App.2d 780, 790, 204 P.3d 1182 (2009). This court has considered periods of time as short as 7 months to be the foreseeable future from a child's perspective. 41 Kan.App.2d at 790. A court may predict a parent's future unfitness based on his or her past history. In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982).
Father argues he was improperly lumped in with Mother and B.F. in this matter. When L.K.G. was in state custody in Arkansas, Father contends he did everything that was asked of him. Father claims the district court ignored the progress he made in such a short time frame. Father believes the court should look at the time period from October 2011 to July 2012 when he was L.K.G.'s primary care provider in order to determine Father's future fitness.
We recognize Father's complaint that he was not given a lot of time to comply with the case plan once L.K.G.'s case was combined with Mother's other two children's cases, and we note that after the Arkansas incident L.K.G. lived with Father from October 2011 until July 2012. Father said he was financially independent at this time but relied on his brother's fiancee and his mother for childcare. Father was involved in a terrible car accident and became unable to care for L.K.G. Father gave L.K.G. back to Mother. When L.K.G. was back in Mother's custody, Mother sent L.K.G. to live with another woman. It was understood that L.K.G., at the age of 4, had either been in custody or had not resided with his parents for somewhere around 3 years or more. This is a considerable amount of time for L .K.G. to be without his parents. The district court may predict Father's future unfitness based on this history. There was clear and convincing evidence to support the district court's determination that Father's behavior was unlikely to change in the foreseeable future.
The last consideration is whether the district court correctly determined that terminating Father's parental rights was in L.K.G.'s best interests. K.S.A.2013 Supp. 38–2269(g)(1) provides that even after a finding of unfitness, the district court must determine whether the termination of parental rights is in the best interests of the child.
Because it hears the evidence directly, the district court is in the best position to determine the best interests of the child, and an appellate court cannot overturn the determination without finding an abuse of discretion. In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied 291 Kan. 911 (2010). An abuse of discretion occurs when no reasonable person would agree with the district court, or when the court bases its decision on an error of fact or an error of law. See Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). In determining whether the district court has made a factual error, we review any additional factual findings made in the best-interests determination to see that substantial evidence supports them (recognizing that the preponderance-of-the-evidence standard applies in the district court). In re R.S., 50 Kan.App.2d ––––, ––––, ––– P.3d –––– (2014) (No. 111,027 filed October 24, 2014).
On appeal, Father incorrectly contends the district court gave no consideration to the physical, mental, or emotional needs of the child. The district court held that L.K.G. was a child in need of care because he was without the care or control necessary for his physical, mental, and emotional health; he had been removed once before from his parents and placed in State custody; and neither parent was available as a placement option. Father claims the district court abused its discretion by failing to consider a viable alternative to termination. He contends KVC had not considered what L.K.G.'s life would be like without his father's involvement. During the proceedings, Father asked if anyone had worked with L.K.G. regarding the possibility that his father may no longer be in his life. As to the last point, Moser testified that typically nobody talks with the child about what life would be like if the parents' rights are terminated prior to actual termination because such a possibility can be especially confusing for younger children. Moreover, the district court found that permanency could not be found with either Father or Mother, and that even during the termination hearing, Father was unable to obtain proper housing, attend proper therapy sessions, submit to hair follicle tests, and complete the domestic violence assessment. In fact, at the time of the district court's ruling, Father was again incarcerated. It is apparent from the record that Father failed to adjust his circumstances in order to properly care for L.K.G.
Ultimately, the evidence provided at the termination hearing demonstrated that Father could not adequately provide for the needs of his child in the future. As such, the district court's decision to find Father unfit was supported by clear and convincing evidence, and the court did not abuse its discretion by terminating his parental rights.
Affirmed.