Opinion
112,776.
05-08-2015
In the Matter of M.T.S., a Minor Child Year of Birth 2012 a Male.
Symmonds, of Symmonds & Symmonds, LLC, of Emporia, for appellant natural father. Brandy Roy–Bachman, of Law Office of Brandy Roy–Bachman, of Emporia, for appellant natural mother. Meghan K. Morgan, assistant county attorney, and Marc Goodman, county attorney, for appellee.
Symmonds, of Symmonds & Symmonds, LLC, of Emporia, for appellant natural father. Brandy Roy–Bachman, of Law Office of Brandy Roy–Bachman, of Emporia, for appellant natural mother.
Meghan K. Morgan, assistant county attorney, and Marc Goodman, county attorney, for appellee.
Before HILL, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mother and Father, the natural parents of M.T.S., appeal from the decision of the district court to terminate their parental rights. Specifically, they maintain there was insufficient evidence to support the district court's findings that they were unfit, that their unfitness was unlikely to change in the foreseeable future, and that termination of their parental rights was in M.T.S.'s best interests. We affirm the findings of the district court.
On April 2, 2013, the Greenwood County District Court entered an ex parte order placing M.T.S. in police protective custody because Mother had been arrested and Father could not be contacted. The next day, the State filed a petition that sought to have M.T.S. declared a child in need of care (CINC). M.T.S. was placed in the temporary custody of the Kansas Department for Children and Families (DCF), and an adjudication hearing was scheduled for April 12, 2013.
Neither Mother nor Father personally attended the adjudication hearing. At the hearing, the district court adjudicated M.T.S. as a child in need of care and transferred venue to Lyon County.
A dispositional hearing was held on June 25, 2013. Again, Mother and Father did not personally appear at the hearing. The district court determined that M.T.S. should remain in DCF custody and adopted a permanency goal of reintegration. The court noted that DCF was attempting to engage Father in reintegration and would establish services for Mother when she was released from jail.
At subsequent permanency hearings, the district court found that reintegration continued to be a viable goal. Weekly visitation was offered to Father and to Mother upon her release from jail. On November 13, 2013, the court found that both parents had obtained employment and new housing together and had scheduled intakes at the mental health center. The court also noted that Mother had completed a parenting class, while Father still needed to complete a parenting class and a drug and alcohol evaluation. On March 12, 2014, the court found that Mother was attending therapy, treatment, and meetings and that Father had reported completing an alcohol and drug evaluation but had not provided a copy to St. Francis Community Services (SFCS).
On June 11, 2014, the court found:
• The parents had last visited M.T.S. on April 23, 2014;
• Both parents had submitted positive UAs on April 15, 2014, and had failed to submit UAs on May 6, 2014;
• Father had not completed a parenting class or an alcohol and drug evaluation and SFCS had been unable to obtain his records from the Veterans Administration (VA);
• Mother was no longer in individual therapy and needed to be reassessed for drugs and alcohol;
• Both parents had been fired from their jobs on May 6, 2014;
• Neither parent had attended a review hearing for M.T.S. and neither parent's attorney had been able to contact them.
On July 8, 2014, the district court found that reintegration was no longer a viable option because the parents were no longer making reasonable efforts. The court noted that the parents had continued to use drugs, were not completing case plan tasks or participating in visitation, and were currently in jail. Additionally, Mother's probation had been revoked and she had been ordered to serve an 18–month jail sentence. The court ordered the State to file a motion to terminate parental rights within 30 days.
On August 1, 2014, the State filed a motion to terminate the parental rights of Mother and Father. The State's motion alleged that Mother had a history of depression but was no longer participating in mental health services; had a history of drug and alcohol problems; had recently tested positive for drug use and been charged with drug crimes; struggled with attending visitations, maintaining contact and cooperating with service providers, and following through with services; failed to provide financial support or otherwise provide for M.T.S.'s daily needs; failed to provide appropriate housing and income to provide for M.T.S.'s needs; and was currently incarcerated and serving an 18–month jail sentence. With respect to Father, the motion alleged that he had a history of depression and symptoms of psychosis and hallucinations; had recently tested positive for drug use and had been charged with drug crimes; struggled with attending visitations, maintaining contact and cooperating with service providers, and following through with services; failed to provide financial support or otherwise provide for M.T.S.'s daily needs; and failed to provide appropriate housing and income to provide for M.T.S.'s needs.
Mother and Father attended the evidentiary hearing held on September 29, 2014. After hearing testimony, the district court terminated the parental rights of Mother and Father. Mother and Father timely appeal.
On appeal, Mother and Father argue there is insufficient evidence in the record to support the district court's ruling terminating their parental rights. Specifically, they contend there was insufficient evidence to support the district court's findings that they were unfit, that their unfitness was unlikely to change in the foreseeable future, and that termination of their parental rights was in M.T.S.'s best interests.
In reviewing a district court's decision terminating parental rights, an appellate court must 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 parent's rights should be terminated.]” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). Clear and convincing evidence is “an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt.” 286 Kan. at 691. Appellate courts do not reweigh the evidence, judge the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
Before terminating parental rights, the district court must find that the moving party has proven three elements by clear and convincing evidence: (1) The parent is unfit, (2) the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future, and (3) termination of parental rights is in the best interests of the child. K.S.A.2014 Supp. 38–2269(a), (g)(1). K.S.A.2014 Supp. 38–2269(b) and (c) provide a nonexclusive list of factors that the court must consider when determining parental unfitness. The existence of any one of these statutory factors “standing alone may, but does not necessarily, establish grounds for termination of parental rights.” K.S.A.2014 Supp. 38–2269(f).
In the present case, the district court relied on the following statutory factors in deciding that Mother and Father were unfit, that the conduct or condition rendering them unfit was unlikely to change in the foreseeable future, and that terminating their parental rights was in M.T.S.'s best interests:
• K.S.A.2014 Supp. 38–2269(b)(3) (excessive use of liquor or drugs that renders parent incapable of caring for child);
• K.S.A.2014 Supp. 38–2269(b)(7) (failure of social service agency efforts to rehabilitate the family);
• K.S.A.2014 Supp. 38–2269(b)(8) (lack of effort by the parent to adjust his or her circumstances to meet needs of child);
• K.S.A.2014 Supp. 38–2269(c)(l) (failure to assume care of child in the parental home);
• K.S.A.2014 Supp. 38–2269(c)(2) (failure to maintain regular visitation, contact, or communication with child);
• K.S.A.2014 Supp. 38–2269(c)(3) (failure of a reasonable court-approved plan to get child into parent's home);
• K.S.A.2014 Supp. 38–2269(c)(4) (failure to pay a reasonable portion of child care costs).
At the evidentiary hearing, the district court heard testimony from several witnesses, including the relevant testimony detailed below.
Laura Price, TFI Family Services/SFCS case manager, testified she was assigned to M.T.S.'s case in April 2013. Price stated that from April to July 2013, when the case was transferred to SFCS, Father did not make any progress on his assigned case plan tasks or attend any case plan meetings. Price stated she had asked Father to come to her office the day after M.T.S. was removed from the home, but Father had no contact with TFI and no visitation with M.T.S. while the case was supervised by TFI. Price testified that Father had not completed a drug and alcohol evaluation or a parenting class and had not attended AA meetings or treatment. Although Father had reported participation in services with the VA, Price had not been able to confirm this. Price noted that it was Father's responsibility to obtain his records from the VA. Price testified that Father had 30 supervised or monitored 1–hour visits with M.T.S. over the previous 78 weeks.
Price testified that Mother had made progress on case plan tasks at times but had not been consistent. In September 2013, Price went to Mother's home to drop in during an unsupervised visit and discovered Father in the basement bathroom with the lights off. Mother acknowledged that Father was not authorized to be at that visit and Mother's visits returned to supervised thereafter. Mother had completed a parenting class and a drug and alcohol evaluation and had participated in treatment but struggled to maintain her sobriety. Mother had multiple failed UAs, had failed to submit UAs, and at the time of the termination hearing, was incarcerated on a drug crime. As a result, there was no opportunity for Mother to participate in visitation with M.T.S.
Price testified the parents were required to find suitable housing for M.T.S. While Mother had suitable housing prior to her incarceration, she was in jail at the time of the hearing. Father was living with his mother at that time, but Price had not been in the home. Both parents were to have weekly contact with SFCS but neither had completed this task, although Father's contact had improved recently. Both parents had failed UAs and had not gotten any further treatment as a result of their positive tests.
Nicole Dawson was the family's reintegration case manager at SFCS beginning in July 2013. According to Dawson, Mother's and Father's case plan tasks included: (1) maintaining appropriate housing and income to meet M.T.S.'s needs; (2) completing a drug and alcohol evaluation or assessment; (3) participating in NA and AA meetings; (4) participating in mental health services and providing SFCS with records; (5) scheduling visitation with M.T.S.; and (6) submitting to random UAs.
Dawson testified that at the time of the hearing, Mother was incarcerated and serving an 18–month jail sentence. Mother also had a pending charge and was facing an additional 34 months of incarceration. Prior to Mother's incarceration, she had appropriate housing and a full-time job. Mother's visits with M.T.S. began in July 2013. Mother attended 34 out of 78 visits that were offered. There were concerns at some visits that Mother did not bring items necessary to care for M.T.S., such as diapers, wipes, or appropriate snacks. Mother only had one unsupervised visit before the visits were returned to supervised or monitored. Dawson had not been in Mother's home since May 2014. Dawson stated that since that time, she had tried to drop in for a visit but no one answered the door although she could hear people inside. Mother had completed a parenting class and a mental health evaluation but had not consistently completed any of the other case plan tasks. Mother had failed to submit to at least three UAs. Dawson opined that Mother's addiction was getting in the way of reintegration with M.T.S. and did not feel it was in M.T.S.'s best interests to wait until Mother had served her sentence.
Father began supervised visits in September 2013 and attended 30 out of 78 visits. Father's visits were never unsupervised. Initially, there were concerns that Father was not bringing necessary items to the visits and was not interacting with M.T.S. when Mother was there, but Dawson stated that Father had recently improved and was interacting more with M.T.S. Father reported that he was living with his mother, but Dawson had not been to this residence. She attempted to visit in September 2014 at a time when Father was not working, but no one was home. Father had a full time job and reported that he was attending AA and NA meetings, but Father had not provided SFCS with his VA records. Father had been arrested in June 2014 and had a pending criminal case. Sentencing in that case had been continued because Father had not completed a drug and alcohol evaluation. Father had failed to submit to at least three UAs. Dawson testified that neither Mother nor Father stayed in consistent contact with SFCS but stated that Father had been calling in regularly since his release from jail. In order for Father to move to unsupervised visits, however, Dawson needed to see more progress and stability. Dawson noted that Father still had not completed his drug and alcohol evaluation and mental health intake.
Father testified he had gone to the VA for drug and alcohol and mental health services and had followed all recommendations, and had completed a parenting class and attended AA and NA meetings. Father stated he had a full-time job at Simmons Pet Food and he and his mother owned a two-bedroom house and a three-bedroom trailer that would be available for M.T.S. to live in. Father felt he would be able to provide for M.T.S. and planned to pay child support in the future. He claimed his attendance at visits with M.T.S. was improving and they were interacting more and developing a bond.
Father admitted he had entered a no contest plea to possession of marijuana, possession of drug paraphernalia, and criminal misuse of a weapon charges and had not yet been sentenced. Father agreed he had not obtained the VA records for SFCS, he had submitted multiple positive UAs, and he had not consistently attended visitation. Father also testified he had another child in DCF custody because he was homeless and was unable to financially take care of her. Father stated he had a car but did not have a driver's license. He admitted he had made mistakes and failed to complete case plan tasks in the past, but he claimed he was on the right track now and M.T.S. was his priority. Father opined he would need about 2 or 3 months to complete his case plan tasks and nothing would prevent him from obtaining services at SFCS in the near future.
Father's mother testified that Father had lived with her since his release from jail in August 2014. Since that time, she had noticed positive changes in Father's behavior and his attitude toward M.T.S. She stated she was willing and able to provide transportation for Father.
Mother testified she was currently in jail because she had violated her probation. She did not know her release date but did not think she had the full 18 months left to serve. She admitted she had other drug charges pending but believed she would receive probation. Mother testified that during her incarceration, she attempted to work at reintegrating with M.T.S. but it had been difficult because of her pending charges and because she did not know her release date. Nevertheless, she had attended anger management and individual counseling sessions. Mother stated she had not been able to afford a drug and alcohol evaluation but would be able to get one and follow recommendations in the near future.
Mother noted that prior to her incarceration, she had successfully completed a parenting class, completed a mental health intake, completed drug and alcohol treatment, and attended AA and NA meetings. Prior to her incarceration, Mother had lived in a three-bedroom house. She testified she had always cooperated with SFCS workers when they came to her house, although she admitted that she did not always set up visits with M.T.S. She had been employed at Simmons full-time and had spoken to her attorney about the possibility of work release. Mother claimed she had not known she was required to pay child support but stated she intended to do so if she was able to obtain employment.
Mother admitted that M.T.S. had been bom with drugs in his system. She claimed she had smoked some “weed” while she was pregnant with M.T.S. and did not know it contained meth. Mother stated that in the last 2 years, her longest period of sobriety was 6 months. Mother also admitted she had positive UAs and she had used meth while in jail. Mother testified she let Father see M.T.S. during one of her unsupervised visits because she felt it was the right thing to do at the time. She stated she was aware of the case plan tasks and had messed up but claimed she was a good mom, loved her kids, and could be a good mom from jail.
Mother challenges the district court's findings that she was unfit, primarily relying on the case plan tasks that she did complete both prior to and during her incarceration and the positive steps she took to address her drug addiction issues.
However, there is sufficient evidence in the record to support the district court's finding of unfitness. Despite Mother's participation in drug and alcohol counseling and inpatient treatment, there is overwhelming evidence that she has continually struggled to maintain her sobriety, as evidenced by her multiple positive UAs, failure to show up for testing, and incarceration for drug crimes. See K.S.A.2014 Supp. 38–2269(b)(3) (excessive use of liquor or drugs that renders parent incapable of caring for child). Among the many factors the district court cited, it also found that Mother had not availed herself of numerous opportunities to participate in case planning and reintegration goals, and the record is replete with uncompleted case plan tasks or requirements that had been communicated to Mother. See K.S.A.2014 Supp. 38–2269(b)(7) (failure of social service agency efforts to rehabilitate the family); K.S.A.2014 Supp. 38–2269(b)(8) (lack of effort by the parent to adjust his or her circumstances to meet needs of child); K .S.A.2014 Supp. 38–2269(c)(l) (failure to assume care of child in the parental home); K.S.A.2014 Supp. 38–2269(c)(2) (failure to maintain regular visitation, contact, or communication with child); K.S.A.2014 Supp. 38–2269(c)(3) (failure of a reasonable court-approved plan to get child into parent's home). Finally, the record supports the district court's finding that Mother failed to pay a reasonable portion of child support based on ability to pay. See K.S.A.2014 Supp. 38–2269(c)(4). Mother asserts the district court's finding in this regard is contrary to the record because there was no evidence that she was able to provide any financial support due to her incarceration or that she was aware that she was required to do so. But Mother's argument ignores the time prior to her incarceration, when the record reflects she had full-time employment and did not provide any financial support for M.T.S. Mother's ignorance of her responsibility to do so is irrelevant with respect to the sufficiency of the district court's finding that she had failed to provide financial support for M.T.S.
The record reflects that Mother did complete some case plan tasks prior to her incarceration and continued to make some efforts while she was incarcerated. Despite these efforts, however, there is still clear and convincing evidence to support the district court's finding that Mother was unfit.
Father challenges the district court's findings that he was unfit, primarily relying on the case plan tasks that he did complete and the progress he had made after his release from jail.
There is ample evidence in the record to support the district court's finding of unfitness. Significantly, Father had submitted positive UAs, failed to show up for testing, and had been arrested on drug and firearm charges. See K.S.A.2014 Supp. 38–2269(b)(3) (excessive use of liquor or drugs that renders parent incapable of caring for child). Father readily acknowledges his past drug use and conviction for possession of marijuana but claims he does not have a problem with drugs and claims there was no evidence to show that his drug use rendered him unable to care for, or was a danger to, M.T.S. To the contrary, evidence of Father's drug use and his convictions involving drugs and firearms clearly reflect involvement in dangerous activities. Additionally, the district court found that Father did not take advantage of numerous opportunities to participate in case planning and reintegration goals, and the record reflects multiple uncompleted case plan tasks or requirements that had been communicated to Father. See K.S.A.2014 Supp. 38–2269(b)(7) (failure of social service agency efforts to rehabilitate the family); K.S.A.2014 Supp. 38–2269(b)(8) (lack of effort by the parent to adjust his or her circumstances to meet needs of child); K.S.A.2014 Supp. 38–2269(c)(1) (failure to assume care of child in the parental home); K.S.A.2014 Supp. 38–2269(c)(2) (failure to maintain regular visitation, contact, or communication with child); K.S.A.2014 Supp. 38–2269(c)(3) (failure of a reasonable court-approved plan to get child into parent's home). Finally, the record supports the district court's finding that Father failed to pay a reasonable portion of child support based on ability to pay. See K.S.A.2014 Supp. 38–2269(c)(4). Father asserts the district court's finding in this regard is contrary to the record because there was no evidence that he was able to provide any financial support due to his indigence and recent incarceration. Father's argument ignores the time prior to his incarceration, when the record reflects he had full-time employment and did not provide any financial support for M.T.S.
Father rightfully notes there were some facts weighing in his favor, especially after his release from jail when he regularly attended visits with M.T.S., moved home to live with his mother, and obtained full-time employment. Despite these efforts, however, there is still clear and convincing evidence to support the district court's finding that Father is unfit.
Moreover, there is clear and convincing evidence to support the district court's finding that the conduct or condition rendering Mother and Father unfit was unlikely to change in the foreseeable future. We consider whether a condition is likely to change in the foreseeable future from the perspective of the child and not the parent. See, e.g., In re M.B., 39 Kan.App.2d 31, 45, 176 P.3d 977 (2008) ; In re C.C., 29 Kan.App.2d 950, Syl. ¶ 2, 34 P.3d 462 (2001). Consequently, efforts at rehabilitation or reintegration must proceed promptly to a successful conclusion. See In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
Parental unfitness can be judicially predicted from a parent's past history. See In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982). Considering Mother's and Father's history, there is sufficient evidence to support the district court's finding that neither parent's unfitness was likely to change in the foreseeable future. M.T.S. has been in state custody since April 2013. At the time of the termination hearing, Mother was in jail serving an 18–month sentence and was facing an additional 34 months' incarceration. Although Mother believed she would get probation for her pending charges and contends there was no evidence showing why reintegration was not appropriate given her incarceration, this court has held that incarceration can be used as a factor to support a finding that a parent's condition would not change in the foreseeable future. See In re M.B., 39 Kan.App.2d at 47–48 (finding that incarceration for as few as 7 additional months from the date of the hearing, along with other factors, was sufficient to establish that the parent's condition would not change in the foreseeable future). Dawson testified that reintegration with Mother was not likely to occur in the foreseeable future due to her incarceration. Father was also facing incarceration for his pending drug and firearm charges at the time of the hearing. And while Father suggests that many of his case plan tasks could be completed in the near future, his case worker expressed doubt that Father would be able to reintegrate with M.T.S. in a short amount of time because he needed to show stability over a period of time.
At the time of the hearing, M.T.S. had been in state custody for more than 17 months. The district court was justified in finding that any additional time was more than the State or the parents should ask of M.T.S. There is clear and convincing evidence that the conduct or condition rendering Mother and Father unfit was unlikely to change in the foreseeable future.
Finally, we must consider whether the district court correctly determined that terminating Mother's and Father's parental rights was in M.T.S.'s best interests. K.S.A.2014 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, giving “primary consideration to the physical, mental and emotional health of the child.”
As a preliminary matter, Mother and Father contend the district court failed to make an express best interests finding on the record. This argument lacks merit. Although the district court did not discuss K.S.A.2014 Supp. 38–2269(g)(l) or make a specific finding mentioning M.T.S.'s best interests in its oral ruling at the termination hearing, the written journal entry of judgment states: “Considering the physical, mental or emotional health of the child, termination of parental rights is in the best interests of [M.T.S.] and the physical, mental or emotional needs of the child would best be served by termination of parental rights.” Thus, the district court complied with K.S.A.2014 Supp. 38–2269(g)(1).
Nevertheless, Mother and Father argue the record is insufficient to support a finding that termination of their parental rights was in M.T.S.'s best interests since no child psychologist testified to this. Because the district court hears the evidence directly, it is in the best position to determine the best interests of a child, and an appellate court cannot overturn it without finding an abuse of discretion. In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied (October 7, 2010). An abuse of discretion occurs when the district court acts in an unreasonable, fanciful, or arbitrary manner or when the court bases its decision on an error of fact or an error of law. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013).
Given the evidence before the district court, the testimony of a child psychologist was not necessary to make a best interests finding. The court heard evidence that M.T.S. was initially taken into state custody in April 2013 because Mother was incarcerated and Father was unavailable. Since that time, the State attempted to work with the parents through multiple case plan tasks, but the parents were unable to follow through consistently. Both Mother and Father have a history of drug and alcohol issues. At the time of the termination hearing, Mother was incarcerated on an 18–month sentence and was facing additional time in jail. Father also had pending charges that he had not yet been sentenced on. The parents had more than 17 months to sufficiently make the changes that could have resulted in M.T.S.'s reintegration into their home. A reasonable person could agree with the district court's best interests decision, and there is no indication that the decision was based on any error of fact or law. The district court did not abuse its discretion when it concluded that terminating Mother's and Father's parental rights was in the best interests of M.T.S.
For all these reasons, when viewed in the light most favorable to the State, there is clear and convincing evidence to support the district court's findings that Mother and Father were unfit, that the conduct or condition that rendered them unfit was unlikely to change in the foreseeable future, and that termination of parental rights was in M.T.S.'s best interests.
Affirmed.