Opinion
No. 108,562.
2013-03-29
In the Interest of M.D., dob XX/XX/2007, a Female, A.V., dob XX/XX/2005, a Male, and T.B., dob XX/XX/2004, a Female.
Appeal from Wyandotte District Court; Daniel Cahill, Judge. Jeffrey Leiker, of Leiker Law Office, P.A., of Overland Park, for appellant mother. Anna M. Krstulic, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.
Jeffrey Leiker, of Leiker Law Office, P.A., of Overland Park, for appellant mother. Anna M. Krstulic, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
S.G. (Mother) appeals the termination of her parental rights to her minor children: daughters M.D., born 2007, and T.B., born 2004, and son A.V., born 2005. Mother appeals the district court's decision, claiming that there was not clear and convincing evidence for the court to find her unfit by conduct or condition that was unlikely to change in the foreseeable future. Before terminating parental rights, the court must find by clear and convincing evidence that the parent is unfit, that the conduct or condition that renders the parent unfit is unlikely to change in the foreseeable future, and that the severance of parental rights is in the best interests of the child. K.S.A.2012 Supp. 38–2269(a), (g)(1).
This case began in November 2010, when T.B. reported to her school counselor that Mother had attempted to kill herself, T.B., and the other two children by having them sit in the running family car inside of a garage. After that report was made, the children were placed by the court in the custody of the Kansas Department of Social and Rehabilitation Services (SRS). At the termination hearing 1.5 years later, the court noted that the case had been going on for some time but that little progress had been made on the reintegration plan. The court had sufficient evidence to conclude that Mother's parental rights should be terminated. By the date of the trial, Mother had only been taking medication for her bipolar disorder and attending individual therapy sessions for about a month. She had previously been dropped from individual therapy for missing half of the classes, and the court was fearful that based on her history, she would not continue with her medication or therapy and would potentially put the children's lives at risk again. No professionals who worked with Mother throughout the case felt that she was ready to regain custody of her children. In fact, many of those professionals thought that continuing to work toward reintegration with Mother was detrimental to the children. We affirm the district court's judgment because it was supported by clear and convincing evidence.
Factual Background
On November 17, 2010, T.B. told a counselor at her elementary school that the previous evening Mother had attempted to kill herself, T.B., and the other children. T.B. told the counselor that Mother had gotten into a fight with her boyfriend, after which she asked T.B. and her siblings to get into the car inside the garage. T.B. said that Mother turned the car on but did not open the garage door, told the children, “Lie down and sleep, soon we will all be in heaven,” and then pushed the gas pedal several times and raised the car windows. T.B. reported that Mother's boyfriend tried to intervene, and eventually Mother told the children to get out of the car and go to bed without dinner.
SRS received a hotline report about the incident that same day, and with the help of police the children were placed in protective custody.
The following day, the children were interviewed, and T.B. gave a report consistent with what she told her school counselor. T.B. also stated that Mother became angry with her for telling her counselor and hit her with a belt several times on her arms, legs, and head. A.V. initially did not understand the difference between inside and outside, but after it was explained to him he reported that the car was outside the garage. M.D. was unable to give any usable information about the incident.
Based on T.B.'s reports, the State filed petitions alleging T.B., A.V., and M.D. to be children in need of care on November 22, 2010. The district court also issued a temporary order of custody to SRS.
On December 7, 2010, an adjudication hearing was held at which Mother pled no contest to the allegations in the petitions. The court found all three children to be in need of care according to statutory definitions, as they were without adequate parental care, control, or subsistence and the condition was not due solely to the lack of financial means; the children were without the care or control necessary for their physical, mental, or emotional health; and the children had been physically, mentally, or emotionally abused or neglected, or sexually abused. The court issued interim orders to assist in reintegration, which included supervised visitation through Kaw Valley Center (KVC). The orders also required that Mother obtain psychosocial, mental-health, and psychiatric assessments and follow the recommendations; that she obtain and maintain stable income and housing; that she participate in parenting classes; and that she submit to random urinalyses (UA)—and if a positive UA were submitted, she was to obtain a drug-and-alcohol assessment and follow the recommendations.
In criminal case No. 10–CR–1499, which stemmed from the original allegations that Mother had tried to kill her children in the car, Mother pled no contest to one count of child abuse—for which she was sentenced to 41 months in prison—and three counts of aggravated endangering a child—for which she was sentenced to 6 months on each count, all to run concurrently. Mother was placed on probation for 36 months.
The court held various hearings throughout the course of the case to determine the progress being made. At each hearing, the court ordered the interim orders to remain in effect and made no changes to these orders regarding Mother except at the permanency hearing on September 26, 2011, where the court ordered Mother to attend individual therapy.
For each hearing, Court Services Officer Ramona MacDougall prepared a report containing updates on the children's overall well-being as well as outlining any progress made by Mother. In her January 2011 report, MacDougall expressed concern over behaviors that had been observed in the children that were both violent and sexual in nature and caused the children to have to change placement. The sexualized behavior was of such concern that T.B. and M.D. were placed in a home separate from their brother A.V. After 2.5 months of separate placement, the children were moved to a relative placement with a maternal great-aunt and began individual therapy, at which point M.D. and T.B. were diagnosed with posttraumatic stress disorder (PTSD).
MacDougall reported that Mother had tested positive for drugs six times between May and September of 2011: May31 and June 14 for cocaine and marijuana; July 14, August 11, and September 19 for marijuana; and August 25 for marijuana and PCP. MacDougall found this particularly concerning based on the fact that Mother had denied using cocaine, and by the June 24 hearing Mother had failed to pursue a drug-and-alcohol evaluation. But MacDougall later reported that Mother began drug-and-alcohol treatment on September 13, and by the December 19 hearing, Mother had submitted three more UA's that were negative for drugs.
MacDougall also expressed concern in her June report that Mother had made little progress on the court orders in the 7 months the case had been open. She reiterated this concern in her December report as Mother still had not obtained medication management for her bipolar disorder and, according to the KVC case manager, was unable to demonstrate appropriate parenting skills with her children.
On September 26, 2011, the court held a permanency hearing to determine the progress being made on the reintegration and adoption plan. MacDougall reported that a probation-revocation hearing was set for October 19 because of Mother's positive UA's, her unemployment, and her failure to attend a mental-health evaluation. The court found that Mother was not making adequate progress towards reintegration as she had not completed drug-and-alcohol treatment, she continued to test positive for drugs, she was in danger of having her probation revoked, she had not participated in a psychiatric evaluation, and she had been fired from her job. The court set the matter for a December 2011 trial to consider termination of parental rights. But the trial was continued for 90 days, as at the time of the trial Mother had participated in a number of parenting classes, had obtained employment, had no more positive UA's, and was compliant with her probation.
On January 31, 2012, the State filed a motion to terminate parental rights based on numerous allegations, including that Mother failed to comply with the reintegration plan. The motion cited concerns that visitations with Mother were detrimental to the children and that Mother failed to participate in parent-management training. Specifically, the State alleged Mother to be unfit because she suffered an emotional illness, mental illness, mental deficiency, or physical disability of such duration or nature as to render her unlikely to care for the ongoing physical, mental, and emotional needs of the children; she engaged in conduct toward the children of a physically, emotionally, or sexually cruel or abusive nature; she engaged in excessive use of intoxicating liquors or narcotic or dangerous drugs of such duration or nature as to render her unable to care for the physical, mental, or emotional needs of the children; she physically, mentally, or emotionally neglected the children; she was convicted of a felony and served a term of imprisonment; she demonstrated a lack of effort on her part to adjust her circumstances, conduct, or conditions to meet the needs of the children; the fathers failed to maintain regular visitation, contact, or communication with the children or the custodian of the children; and Mother failed to carry out a reasonable plan approved by the court directed toward the reintegration of the children into the parental home. See K.S.A.2012 Supp. 38–2269(b)(1), (2), (3), (4), (5), (8), (c)(2), and (3).
On March 22, 2012, the district court held a termination trial. Doctor Steve Hazel testified about the psychological evaluation he performed on Mother. Mother had been referred to him by KVC due to her history of mental-health issues and concerns about her violence toward the children. Hazel explained that Mother's primary diagnosis was bipolar disorder and that there was a “thought-disturbance piece” to it that could interfere with her ability to put the children's needs before her own. Hazel further expressed concern that Mother did not always see the children as a positive reinforcement to her or as benefitting her. Although Mother's reports about the allegations leading to the case were very different from the children's accounts (though she had not contested the allegations in this case or the charges in her criminal case), Hazel testified that if that was how the children viewed the situation, they would still be fearful of Mother. He went on to say that those allegations, coupled with Mother's inability to regulate her mood, created an additional risk factor to the children's safety. Hazel testified that given Mother's mental-health issues, long-term individual psychotherapy and medication would be needed, and that if Mother failed to be consistent with either it would be concerning.
Judith Rodman, the children's service manager with PACES of Wyandot Center (a mental-health organization that helps children with emotional and behavioral health concerns) began seeing the children in November 2011. Rodman testified that the goal of the children's treatment was for them to be able to work through traumatic events without displaying high levels of an emotional response. Rodman stated that in therapy, M.D. disclosed that Mother once held a knife to T.B.'s throat. M.D. also expressed to Rodman the fear that Mother might try to harm her again. Rodman testified that A.V. had a difficult time expressing himself about the trauma and that he would not discuss Mother at all. In therapy, T.B. expressed that she missed Mother, but also that she was still afraid of Mother and afraid for the other children as well. T.B. told Rodman that she wanted to continue seeing Mother but that she did not want to live with her. Rodman stated that the children's fear responses she observed in therapy appeared to be very genuine.
Kelly Hesse, a case worker with KVC, testified that she worked with Mother from September 2011 to March 2012 and that Mother had only missed one session. But Hesse observed 19 visitations with Mother and the children and explained that she had concerns with all 19 visits. Hesse felt that Mother was unable to redirect the children, seemed to have a lack of basic parenting skills, had a lack of a healthy connection with the children, and blamed the children for their not being able to come home. During one visit, Hesse observed T.B. tell Mother that she was still scared, after which Mother told T.B. not to tell other people or she would not be able to go home. After that visit, T.B. told Hesse that she was still scared to live with Mother, but that if she had a lock on her door she would be okay. Hesse testified that she did not think any progress had been made by Mother in redirecting the children's behaviors or in parenting skills. Hesse explained that in March 2012, visits were discontinued because she felt that they were no longer in the best interests of the children. This decision was made after T.B. was hospitalized for becoming violent and suicidal following a visit with Mother. Hesse said she believed T.B. to be traumatized and that repeated exposure to Mother brought out more issues.
Hesse testified that she felt Mother had been given adequate time to demonstrate her ability to parent the children and that it would not be in their best interests to maintain a relationship with Mother. She explained that the parent-management training given to Mother was designed to provide her with parenting skills, but Hesse never observed Mother trying to utilize those skills—even unsuccessfully. Hesse testified that Mother had not completed her individual therapy, and it was her understanding that Mother had been discharged for missing half of her sessions. Hesse expressed that she felt the children needed to be in a safe and stable home, noting that nothing in their interactions with Mother led her to conclude that Mother had established stability or would do so in the near future.
Kristen Gernon, also with KVC, testified about her observations of the interactions between Mother and the children. The case had been referred to her in order to do parenting family therapy in August 2011. Gernon reported that the children were not responsive to Mother's directions and Mother would often engage at a juvenile level with them. Gernon began to have concerns that the visits were detrimental to the children, and she expressed those concerns with the case manager and the case manager's supervisor. It was decided that the family therapy would continue and that Mother's visits with the children would only occur with the therapeutic component.
Gernon would also prep Mother before the family therapy would begin. She said that observed Mother's parenting to be chaotic and lacking structure and direction. Gernon explained that she did not see progress in Mother's interactions with the children, that the children did not become more responsive to Mother's parenting, and that at times Mother's interventions would only escalate the situation. One example occurred during a visit on February 8, 2011. Gernon explained that she and Mother were focused on Mother connecting positively, giving clear directions, and teaching “okay” responses. At some point during the session, A.V. began acting out but remained unresponsive to Mother trying to give him a time out. A.V. became physically aggressive with Mother and called her a “fucker.” He also said, “You're not my mother.” Gernon reported that she had to try to redirect and manage A.V. while Mother continued to interact with the girls. Gernon testified that she did not see that Mother was in the process of becoming able to parent the children.
MacDougall, who had been with the case from the beginning in December 2010, was instrumental in making recommendations to the court for court orders. She testified that the orders had remained the same throughout the case, with the addition of individual therapy for Mother, but that Mother had still not made enough progress to consider having the children placed with her in the near future. MacDougall noted that Mother had just begun taking medication in February 2012. She had been discharged from individual therapy in December 2011 after attending only five sessions and then missing the next five, and she had only resumed her therapy in March 2012. MacDougall testified about Mother's failed UA's. She was concerned that Mother might relapse as she had only been sober for 5 of the 17 months the case had been going on. MacDougall also expressed her concerns that the children had been in therapy for over a year and were still fearful of Mother, and that Mother had been going through parent-management training for 7 months and still had not made progress in parenting the children.
Ronnie McQuay, an intensive-supervision officer with Wyandotte County, supervised Mother's probation. McQuay testified that Mother had submitted three positive UA's to his agency between May and July 2011, but that Mother had no other positive UA's. He did say, however, that there had been an incident the day before the trial. McQuay explained that Mother had been called to submit a UA and that he had asked his coworker, who handles the UA's, to have Mother see McQuay in his office beforehand. McQuay said that after meeting with Mother, he escorted her back to the UA room, at which point the coworker asked McQuay where Mother was—explaining that Mother was not the same person who had come to him to submit the UA. When the coworker pointed out the woman who had originally identified herself as Mother, McQuay recognized her as a woman who had accompanied Mother to his office and back to the UA room. McQuay testified that Mother then refused to submit a UA herself and that the refusal was considered a failed UA because Mother had admitted to drinking over the weekend. McQuay further explained that the failed UA was a violation of Mother's probation and that it was possible her probation could be revoked based on the incident, but he wasn't sure that it would warrant revocation.
When Mother testified, she acknowledged that she did struggle at times during visits with the children, but that she only had problems with her son, A.V., and that her daughters, M.D. and T.B., always ran up to her and wanted to cuddle with her. She said that though she struggled with her son, the professionals did as well. Mother explained that she tried to implement the skills she learned in parenting classes and parent-management training, but that sometimes she just wanted the time with her children to be a “happy hour.” She said she had been employed with the Olive Garden since November 2011 and was living in a three-bedroom apartment. Mother explained that she had been prescribed a mood stabilizer and felt that it had been helping until the month of the trial, when the stress on her became greater. She said that the reason she did not begin taking medications until February 2012 was because she had a hard time talking to someone about it, but that she felt she was getting better about opening up. Mother also testified that she had begun individual therapy again and had had two sessions at the time of trial, with her next appointment scheduled for the following week. She said that she did not see any reason that she would not continue therapy unless she could no longer afford it. Mother said she had used drugs because of stress. She admitted to drinking the weekend before the trial, saying she did not know what she was thinking, but she denied taking any drugs.
At the close of trial, the court noted Mother's failure to accept responsibility or express remorse to her children for the actions that brought them into court, deciding that because the children were still so fearful of Mother it would be cruel to continue with the reintegration plan. The court also noted that the case had been going on for almost 1.5 years and Mother had only recently begun taking medication for her mental illness and going to individual therapy. The court expressed a fear that if Mother was to stop with her therapy or medication, the children's lives could be in danger again and that there was no reasonable amount of time that could make it safe and healthy for the children to go home.
The court found by clear and convincing evidence that Mother was unfit by reason of conduct or condition that rendered her unable to care properly for her children and the conduct or condition was unlikely to change in the foreseeable future. The court cited the following reasons: emotional illness, mental illness, mental deficiency, or physical disability of Mother to a degree that she was unlikely to care for the ongoing physical, mental, and emotional needs of the children (K.S.A.2012 Supp. 38–2269[b][1] ); conduct toward the children of a physically, emotionally, or sexually cruel or abusive nature (K.S.A.2012 Supp. 38–2269[b][2] ); physical, mental, or emotional neglect of the children (K.S.A.2012 Supp. 38–2269[b][4] ); and lack of effort on the part of Mother to adjust her circumstances, conduct, or conditions to meet the needs of the children (K.S.A.2012 Supp. 38–2269[b][8] ). The court also found that the children were not in the physical custody of Mother and that she had failed to carry out a reasonable plan approved by the court directed toward the reintegration of the children into the parental home (K.S.A.2012 Supp. 38–2269[c][3] ).
The court further found that reintegration was not a viable alternative and gave primary consideration to the physical, mental, and emotional needs of the children in finding that it was in their best interests to terminate Mother's parental rights. Mother has appealed to this court.
Analysis
After a child has been adjudicated to be in need of care, the court must make three findings before parental rights may be terminated. The court must find by clear and convincing evidence that (1) the parent is unfit by reason of conduct or condition that renders the parent unable to care properly for the child, (2) the conduct or condition is unlikely to change in the foreseeable future, and (3) it is in the best interests of the child to terminate parental rights. K.S.A.2012 Supp. 38–2269(a), (g)(1). The court may look to a variety of factors listed in K.S.A.2012 Supp. 38–2269(b) and (c), and, pursuant to K.S.A.2012 Supp. 38–2269(f), finding any one of the factors may be sufficient to establish grounds for termination.
When the appellate court reviews a termination of parental rights case, it must determine “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 the determination to be highly probable” ( i.e., established by clear and convincing evidence that the parent's rights should be terminated). In re B.D.-Y., 286 Kan. 686, Syl. ¶ 4, 187 P.3d 594 (2008). For evidence to be clear and convincing, it must be sufficient to establish “that the truth of the facts asserted is highly probable.” B.D.-Y., 286 Kan. 686, Syl. ¶ 3, 187 P.3d 594. In making this determination, an appellate court is not to reweigh evidence, pass on credibility of witnesses, or redetermine questions of fact. B.D.-Y., 286 Kan. at 705, 187 P.3d 594.
To start, let us discuss what is—and isn't—at issue on appeal. First, Mother appeals the court's finding of her unfitness based on her use of intoxicating liquors or narcotic or dangerous drugs of such duration or nature as to render her unable to care for the ongoing physical, mental, or emotional needs of the children. See K .S.A.2012 Supp. 38–2269(b)(3). But the district court specifically found that there was not clear and convincing evidence of excessive drug or alcohol use and declined to find Mother unfit under this subsection. Thus, we need not further consider that statutory factor for an unfitness finding. Second, Mother's appellate brief does not challenge the district court's findings of unfitness based on K.S.A.2012 Supp. 38–2269(b)(2) (abusive conduct directed toward the children), (b)(4) (physical, mental, or emotional neglect), or (c)(3) (failure to carry out reasonable reintegration plan). As previously noted, the district court's finding of any one of these statutory bases for unfitness would be enough to support the court's decision to terminate Mother's parental rights. See K.S.A.2012 Supp. 38–2269(f). Because Mother has not addressed the findings of unfitness made pursuant to these provisions, she has waived those issues on appeal. McCain Foods USA, Inc., v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002). Third, Mother does not challenge the district court's finding that termination of her parental rights was in the children's best interests. That finding—plus unfitness—is required to terminate her parental rights. Thus, on appeal, only certain of the unfitness findings are at issue, not the separate best-interests finding.
We will proceed, then, to discuss Mother's appeal of the court's findings of unfitness based on K.S.A.2012 Supp. 38–2269(b)(l) (mental or physical disability or deficiency making parent unlikely to be able to provide appropriate care) and (b)(8) (lack of effort to adjust conduct and conditions to meet the children's needs). In regards to K.S.A.2012 Supp. 38–2269(b)(1), Mother claims there was not clear and convincing evidence that she had an emotional or mental illness or deficiency of such duration or nature as to render her unable to care for the ongoing physical, mental, and emotional needs of the children. Mother specifically asserts the State failed to prove its case since Mother completed the court-ordered psychological evaluation, participated in therapy, and at the time of trial was on medication for her mental health.
The State contends, though, that it proved Mother's unfitness based on her mental-health issues because of the lack of progress Mother made in completing the court orders that had been in place since December 2010. The State stresses that Mother did not complete her psychological evaluation until September 2011, she was discharged from individual therapy for missing half of her sessions, and as of a review hearing in December 2011 she had still not obtained medication. The State emphasizes Dr. Hazel's testimony that Mother's bipolar-disorder diagnosis and personality characteristics created risk factors for the safety of the children as well as his statements about the importance of sufficient progress in treating these issues before the court could return the children to her care.
It is clear from Mother's own testimony that she suffers from a mental illness. What is less clear is whether it is of such a duration or nature to render her unable to care for her children. Mother did make steps towards managing her bipolar disorder: she obtained a psychological evaluation, she began individual therapy, and she was on medication at the time of the trial. But by the time this case made it to the termination trial, the children had been out of the home for 1 year and 5 months. Mother had only begun making changes to manage her mental-health issues in the few months leading up to the trial. She had made no real progress in proving to the court that she would soon be able to take care of her children. In fact, in her psychological evaluation, she stated that she did not always see the children as positive or of benefit to her. Given her prior interactions with these children, this was very concerning. In addition, Mother testified that although she was on medication, she no longer felt it was helping her manage her illness. While there was certainly some evidence in Mother's favor, there was sufficient evidence to prove that she was in fact unfit due to an inability to care for her children because of her mental illness.
Mother next argues that the court erred in finding her unfit under K.S.A.2012 Supp. 38–2269(b)(8) because there was not clear and convincing evidence that there was a lack of effort on her part to adjust her circumstances, conduct, or condition to meet the needs of her children. Mother asserts that she participated in parent-management training, only missed one visit, was only out of individual therapy for a few weeks before resuming her treatment, and obtained medication. She therefore argues she was working on changing her circumstances, conduct, and conditions to meet her children's needs.
The State again emphasizes the timeline and the fact that no professionals involved in the case testified to seeing any progress or improvement in Mother's ability to parent. The State points to the fact that it took several months for Mother to complete her psychological evaluation, she was discharged from individual therapy for failure to attend her sessions, she did not obtain medication management until the case had been scheduled for a termination trial a second time, and, although the court did not find her unfit based on her drug use, Mother tested positive for drugs throughout the case—and attempted to submit a false UA the day before the termination trial.
Although Mother began to take steps toward changing her circumstances, conduct, and conditions to meet the needs of her children, she did so very late in the process. Mother was inconsistent in attending her individual therapy, did not obtain medication for quite some time, admitted to using alcohol the weekend before the trial, and although she attended her scheduled visitations with her children, she did not fully participate in the parent-management training that was to take place before the visits or apply the lessons during the visits. It seems that Mother merely went through the motions of therapy and her parent-management training, rather than utilizing the tools she was given to better herself as a parent. Mother had a team of professionals throughout the case that were there to help aid her in regaining custody of her children, yet by the March 2012 termination trial, none of them could say that Mother was in a position to care for her children.
Although towards the end of the case it seemed that Mother may have been more focused on working on changing things so that she could care for her children, the fact that it took over a year for her to make such a small amount of progress is sufficient evidence to show that there was a lack of effort on her part throughout the entirety of the case to do so. In determining whether her “conduct or condition is likely to change in the foreseeable future,” courts are to consider the “foreseeable future ... from the child's perspective, not the parent['s], as time perception of a child differs from that of an adult.” In re S.D., 41 Kan.App.2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009). The State established by clear and convincing evidence that there was a lack of effort by Mother to adjust her circumstances, conduct, or conditions to meet the children's needs.
In addition, as we have already noted, Mother's brief on appeal does not contest several of the district court's findings of unfitness, any one of which would have given the court grounds to terminate her parental rights. After review of the entire record, we find that the State established by clear and convincing evidence that Mother's parental rights should be terminated.
We therefore affirm the district court's judgment.