Opinion
No. 111,842.
2014-12-12
In the Interest of K.P.A. III, A Child in Need of Care, Date of Birth: xx/xx/2012.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.Jennifer Wyatt, of Salina, for appellant natural father.Kassie L. McEntire, assistant county attorney, and Ellen Mitchell, county attorney, for appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Jennifer Wyatt, of Salina, for appellant natural father. Kassie L. McEntire, assistant county attorney, and Ellen Mitchell, county attorney, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
K.P.A. II (Father) appeals from the termination of his parental rights to his third son, K.P.A. III. Father claims the evidence did not support the district court's finding of unfitness and decision to terminate his parental rights. We affirm.
Factual and Procedural History
K.P.A. III was born on May 24, 2012 to A.W. (Mother) and Father. K.P.A. was adjudicated a child in need of care on December 13, 2012, and the State filed a motion for termination of Father's parental rights on September 25, 2013. Mother voluntarily relinquished her parental rights and is not the subject of this appeal. After an evidentiary hearing, the district court terminated Father's parental rights, resulting in this appeal.
The Kansas Department for Children and Families (DCF) first received a report about K.P.A. when he was still in the hospital after being born. There was a concern about whether his parents had the necessary supplies at home to care for him. The DCF social worker met with K.P.A.'s parents who, at the time, were temporarily living in a hotel room in Salina with three other adults. Father indicated they would receive diapers, formula, and a car seat from the hospital and additional diapers from Father's grandmother. Two of the men living in the hotel room with the parents took the DCF social worker to a storage unit that contained a small supply of baby supplies for K.P.A., including a bassinette, a baby swing, and various baby clothes. The worker testified it all needed cleaned before it could be used for K.P.A. Ultimately, K.P.A. was allowed to go home with Father and Mother.
DCF received another report about K.P.A. about a month later that the living conditions were not good and that the parents were sleeping rather than getting up with the children (K.P.A. and another of Mother's children) in the morning. Three more reports were received in August 2012: one given anonymously; one by the DCF social worker herself; and one by Father, alleging Mother and K.P.A. were living with a sex offender in a house on Osage Street in Salina. The DCF worker who visited the home testified the main floor of the home was very dark and cluttered, and the kitchen was dirty, messy, and very unsanitary. When Mother brought K.P.A. from the basement, K.P.A. had such an overwhelming body odor that the worker had to hold him away from her. He was filthy. He had cradle cap about a half inch thick, head lice, and open sores under his neck and arms, and his head leaned to one side. K.P.A. was removed from the home and placed in foster care on August 17, 2012; he was about 2 1/2 months old. After being removed, he was diagnosed with toticollis, meaning his neck muscles were very tight and difficult for him to use due to being in a lying down position or strapped in a car seat for extended periods of time.
Father testified he lived with Mother and K.P.A. on State Street in Salina for the first 2 1/2 weeks after K.P.A. was born. Father claimed he provided K.P.A.'s care and Mother did not participate. He testified he tried to take K.P.A. and leave the home, but Mother and the two other men living in the home prevented it. Father testified he was worried about K.P.A. so he called the police who tried to do a welfare check, but no one answered the door. However, Father did not tell the police that Mother and the other men had kept him from leaving the house with K.P.A. Father claimed that because he did not have the money to hire an attorney and was unaware that Kansas Legal Services provided free or low cost legal assistance, he decided to call DCF and report the abuse and neglect of K.P.A.
Father testified he lived with a friend in Salina after he left the house on State Street. In August, Father told the DCF worker he had stayed in the house with Mother and K.P.A. for at least a few days. Mother and K.P.A. were living in the State Street house on August 7, 2012, when Father made the report to DCF, but when the DCF worker tried to locate them a few days later, Mother and K.P.A. had moved to a house on Osage Street. K.P.A. was removed from the Osage Street house and placed in foster care. Father blamed Mother for K.P.A.'s physical condition, but the DCF worker testified K.P.A.'s physical condition developed over the course of his 2 1/2 months of life, not within a matter of days.
DCF's contracting agency, TFI, handled this case from August 2012 when K.P.A. came into its care until July 1, 2013, when the contracting agency changed and St. Francis Community Services (SFCS) took over the case. The original case plan goal was reintegration, but it was changed to adoption in November 2013.
Father's work and living arrangements
Father testified his own father kicked him out of the house when he was 17 years old. Father worked at Long John Silver's and Wendy's while attending school. He lived on his own and paid his own bills for a year.
In 2011 Father began a relationship with Mother. She became pregnant almost right away. Their relationship lasted about 10 months and ended when K.P.A. was born. Father then lived with a friend in Salina for 2 months while looking for a job. After that, he moved to Great Bend to live with his grandparents for a couple of months. While in Great Bend he met J.M., and they started a relationship. Father moved in with her and her two children in late 2012. During that relationship, Father testified he worked as the head cook for a bistro for 3 months, at Sonic for 7 months, and provided child care for J.M.'s children. Father claimed he provided pay stubs to SFCS every other week while working for Sonic, but the case worker testified the only pay stubs provided to the agency while Father lived in Great Bend were 2 months from Sonic in August and September 2013. Father never provided pay stubs to verify his employment at the bistro. Father estimated his relationship with J.M. lasted about 13 months; in the fall of 2013, he moved out of her home and back in with his grandparents.
Soon after, he returned to Salina to live with his other grandparents. Father testified he chose to move to Salina because he wanted to see one of his other children (J.W.) more often. J.W. lived in Salina with J.W.'s maternal grandparents who held temporary guardianship of him. Father also had a son (T.N.) who resided with his mother in Colorado. Father testified he received pictures of T.N. but did not have regular contact with him. Father paid child support for T.N. that was withheld from his paychecks when he worked at Sonic and the bistro in Great Bend.
Father reported he became employed by Spangles in Salina but again failed to provide pay stubs to verify his employment. In September 2013, he met and started a relationship with K.T., who lived outside Salina in Culver, Kansas, with her four children. In December 2013, Father started watching K.T.'s children while she worked the dayshift as a nurse. K.T. testified she would pick Father up from his grandmother's house in Salina, he would stay with K.T. in Culver for a few days and watch her children while she worked, then she would take him back to Salina.
In February 2014, Father reported he was working “under the table” for the City of Culver by knocking on doors and requesting vehicles in the street be moved for snow removal. Again Father did not provide documentation to verify his employment. Also in February 2014, Father and K.T. signed a lease together for a house in Salina. The monthly payments covered all bills and expenses, such as utilities, related to the home. K.T. and Father agreed she would continue working as a nurse and Father would provide her child care services. K.T. began working the night shift, so Father watched her children all night as well as her 5–year–old son during the day while the older three children attended school and K.T. slept. Every other week, K.T.'s children would spend Thursday and Friday with their father. K.T. testified she expected they would change their child care arrangement once the 5–year–old started school. K.T. testified Father had recently applied for jobs at a few stores, fastfood restaurants, and gas stations in Salina and was also interested in attending school in the fall.
Father's Case Plan Tasks
Father's case plan tasks required him to: (1) obtain and maintain an appropriate residence which would remain clean, sanitary, and free from bedbugs and head lice; (2) provide monthly rent and utility receipts; (3) maintain employment adequate to meet his family's financial needs; (4) provide pay stubs as employment verification; (5) complete a psychological evaluation with a parenting component and follow all recommendations; (6) participate in parenting classes geared towards age specific information for parenting his children; (7) submit random urinalysis (UA) samples upon request; (8) complete a drug and alcohol evaluation and follow all recommendations; (9) keep the agency apprised of all other individuals residing in the home with him; and (10) attend all visits and appointments as scheduled.
The case manager testified Father did maintain appropriate housing for periods of time during the case; however, he also lived with his girlfriend in Great Bend who was financially responsible for the rent and all utilities. Father was listed on the lease for the house in Salina with K.T., but he was not financially contributing to paying those expenses. Father never provided the agency with proof of paid rent or utilities.
Father completed his psychological evaluation in June 2013. The evaluation diagnosed Father with a narcissistic personality disorder with antisocial features and recommended Father seek individual therapy and mental health services. The psychologist testified treatment would need to involve long-term weekly counseling sessions. In September 2013, Father attended an intake appointment at the Center for Counseling in Great Bend and scheduled additional appointments in October and November; however, he failed to attend those appointments. From September 28, 2013, through March 13, 2014, Father did not participate in any mental health services. Father testified that he contacted Central Kansas Mental Health to set appointments for therapy after he moved back to Salina in the fall of 2013, but he was never able to schedule an appointment because Central Kansas Mental Health did not return his calls. On March 14, 2014, Father participated in an intake appointment in Salina with a different mental health provider, and he attended his three scheduled appointments there in March and April 2014.
Father participated in a parenting skills program from July through September 2013 in Great Bend while he was living with his then-girlfriend J.M. The program involved J.M.'s children, one of whom was similar to K.P.A.'s age. The case manager testified she provided Father with information on where he could sign up for parenting classes after Father returned to live in Salina. The case manager called the parenting class provider and arranged for Father to obtain the required paperwork, but Father never returned the paperwork in order to begin parenting classes.
Father completed an alcohol and drug assessment in February 2013. Father indicated he had smoked marijuana when he was younger but had not used marijuana or any other drugs since 2009. The assessment did not recommend Father pursue any kind of treatment. The agency requested Father submit to a UA test 10 times in 2012 and 2013. He submitted to 7, the results of which were negative. Father failed to take 2 requested UAs, one because he claimed he had a staph infection, and the other because he forgot to take it after a scheduled visit with K.P.A. Because he forgot, Father testified he had to take three more UAs, which were negative, before he saw K.P.A. again. On April 2, 2014, Father had a positive UA. Father claimed it was a false positive due to medication he was taking. SFCS asked him to take another UA the following day which could be tested to identify exactly why it was positive, but Father did not take it.
The case worker testified she never had any drug or alcohol usage concerns with Father until she received a status report from his therapist which stated Father had been hungover during his session on March 28, 2014. Father testified he consumed alcohol on March 27, 2014, while K.T.'s children were asleep. He did not have to watch K .T.'s children the following day because they went to their dad's house.
Father's visits with K.P.A.
When K.P.A. was first removed from Mother's home, Father was allowed 1–hour weekly visits with K.P.A. which were supervised at the contracting agency's office in Great Bend or Salina. Father was expected to bring a diaper bag to each visit and provide diapers, an extra set of clothing, and a snack or meal depending on the visitation time. The case manager testified this requirement was intended to give Father the opportunity to demonstrate he could provide and care for K.P.A.
Between August 20, 2012, and June 26, 2013, Father had 45 scheduled supervised visits with K.P.A. Three of the visits were cancelled because Father could not find transportation to the visit or had transportation issues, two were cancelled because Father was ill, and two were cancelled because Father had failed to submit to a UA. The case worker assigned to K.P.A.'s case during this time testified she had concerns about Father's ability to soothe K.P.A. when he was crying; she had to encourage Father to actively participate with his son and addressed Father's use of his cell phone during the visits. The agency explained he could take pictures on his phone for the first 5 minutes of the visit but needed to put it away after taking the pictures. She testified Father seemed to enjoy seeing K.P.A. but during the visits Father would spend time talking to the supervising worker or would watch K.P.A. play instead of actively interacting with him.
From June 30, 2013, through April 8, 2014, Father had 35 scheduled visits with K.P.A. The visits ranged from 1 hour to 2 1/2 hours and were monitored by SFCS. Six of the visits were cancelled by SFCS due to K.P.A. being sick or dangerous winter weather conditions which made it unsafe to transport K.P.A. from his foster care placement to the agency's office. Father cancelled two visits due to not feeling well himself or because his girlfriend's children were ill and he believed he was becoming ill as well. Father was often offered additional visitation time; he declined additional parenting time three times.
In August and September 2013, four visits were held in locations other than at SFCS offices. Three of these visits were held at Father's grandmother's home and one at the public library. The case worker testified she was concerned after the visit at the library because K.P.A. returned to her office very dirty and unfed. She explained that Father knew he was expected to feed K.P.A. a jar of baby food during the visit but, instead, he asked a worker at the SFCS office to feed K.P.A. when he returned from the library.
During a 2–hour visit at Father's grandmother's home, a worker stopped by to check in with Father, but Father and K.P.A. were not at the home. Father told the worker he was running errands at Wal–Mart and K–Mart with K.P.A. The case manager was concerned because Father was expected to remain at his grandmother's house during the entire visit, and K.P.A. was returned to SFCS' office visibly dirty and with food on him. The case manager was also concerned that K.P.A. had consumed much more candy and sugar than was appropriate for a child of his age after a 2–hour unsupervised visit with Father in October 2013.
The case manager testified about specific concerns she had during various visits. Once K.P.A. was late in arriving to the visit; the case manager offered additional parenting time to compensate Father but he declined because he had other things to do. During that visit Father read K.P.A. a foreign language chapter book. K.P.A. was not interested in what Father was doing, so there was no interaction between them. Father told the case manager he was trying to teach K.P.A. a foreign language. The case worker asked Father whether another more age appropriate book would be better, and eventually Father switched books. During a visit in February 2014, Father did not bring a diaper bag with all the needed supplies, and he gave K.P.A. several drinks, juices, and snacks with a lot of sugar. Shortly after, K.P.A. had a loose stool and soiled his pants outside of his diaper. Father had not brought extra clothing, so K.P.A. ran around for 45 minutes without pants while Father went to Wal–Mart to buy him pants.
The case manager was also concerned because Father seemed to end his 1–hour visits with K.P.A. early. In December 2013, Father's girlfriend tried to attend the visit to take pictures of K.P.A. after the case manager had informed Father that no other persons were allowed to participate in the visits until background checks on each person were completed. Additionally, the case manager was concerned about introducing K.P.A. to yet another girlfriend until there was some assurance that the relationship between Father and the girlfriend was stable. The case manager testified that Father became upset and tried to end his visit 20 minutes early but the case manager's supervisor explained Father needed to be in the visitation room with K.P.A. until the scheduled end of the visit. Father complied.
In January 2014, the case manager testified K.P.A. fell asleep so Father brought him into the office lobby 10 minutes before the end of the visit. Father stated the chairs in the visitation room were so comfortable that he was likely to fall asleep, too, so he brought K.P.A. out to the lobby where Father was more likely to stay awake. At another visit in January 2014, SFCS offered Father additional visitation time, but Father declined and, instead, packed up to leave 5 minutes before the end of the visit. The case manager testified that throughout the case the worker supervising the visit had to encourage Father to interact with K.P.A. rather than passively watch him.
The case manager testified that for a case open as long as this case, she would typically expect visits to progress from supervised at the office to overnight, in-home visits, and weekend visits. In 2013, SFCS started to increase visitation time up to 2 1/2 hours, but in February 2014 visitation time was reduced back to 1 hour due to Father's cancellation of visits and his attempts to end visits early.
Father testified he did not have cell phone service on his phone so when the agency offered additional visitation time at the last minute, he had to decline because he could not contact his girlfriend to arrange a different transportation time. Father clarified he did have a cell phone during visits with K.P.A. but only used it to listen to music and take pictures. Father also testified he wanted more time to work on his case plan and have K.P.A. continue living in foster care for another 6 months while he attended therapy and worked on his reintegration plan.
The district court found Father unfit and terminated his parental rights. Father timely appeals.
Was the District Court's Order Terminating Father's Parental Rights Supported by Clear and Convincing Evidence?
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). The Revised Kansas Code for Care of Children, K.S.A.2013 Supp. 38–2201 et seq ., 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.
Once the district court finds present unfitness, our next step is to then 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’ “D 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).
In this case, the district court found Father to be unfit by clear and convincing evidence under the following statutory factors:
(1) K.S.A.2013 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”;
(2) K.S.A.2013 Supp. 38–2269(b)(9)—“whether the child has been in extended out of home placement as a result of actions or inactions attributable to the parent and one or more of the factors listed in subsection (c) apply”; and
(3) K.S.A.2013 Supp. 38–2269(c)(3)—“failure to carry out a reasonable plan approved by the court directed towards the integration of the child into a parental home.”
The written journal entry also cites to K.S.A.2013 Supp. 38–2271(a)(l) and (2), which state a parent may be presumed unfit if (1) the parent has “previously been found to be an unfit parent” or (2) the parent has twice before been convicted of certain listed crimes. There was no evidence that Father had been previously found unfit or that he had ever been convicted of any of the listed crimes in 38–2271(a)(2). Therefore, there was not sufficient evidence to support presumptions of unfitness under these sections. It is unclear how these sections ended up being listed in the journal entry since the district court never mentioned these sections or applied a presumption in its ruling from the bench.
To support its finding that Father failed to adjust his circumstances to meet the needs of the child, the district court noted: (1) Father continued to make relationship choices that were not in the best interests of his children or him; (2) Father entered relationships that benefited the women but to the detriment of his children because Father was not financially providing for his three children; (3) in 19 months, the visitations between Father and K.P.A. had not progressed beyond supervised visitation; and (4) Father refused additional time with K.P.A. Though there was some positive testimony about Father's relationship with K.P.A., the court found Father only made the changes that were in his own best interests, not K.P.A.'s best interests. The record indicates, and the court found, Father failed to complete or make consistent progress towards completion of his task plan. Though Father sometimes complied with requested tasks, it was always on his own terms. The evidence supports the district court's findings.
The district court also held K.S.A. 38–2269(b)(9) and K.S.A. 38–2269(c)(3) applied. The court considered that K.P.A. had been out of the home for almost his entire life due in part to Father's failure “to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home.” K.S.A. 38–2269(c)(3). DCF removed K.P.A. from his mother's care when he was approximately 2 1/2 months old, and he has remained in foster care ever since. DCF attempted to work with Father in an effort to reintegrate K.P.A. into Father's home and developed case plan tasks for Father to complete. However, Father made only limited efforts to complete his case plan tasks.
Father did participate in scheduled visits; however, the visitation never progressed past short, supervised, or monitored visits. Father completed his psychological evaluation but had not been in consistent treatment as recommended by the evaluation. While Father now has a suitable home with his name on the lease, he only obtained that home in February 2014. Prior to that time, Father had been living with relatives and with his girlfriend. In those situations, Father was not legally responsible for maintaining the residence or related utilities. Father did provide verification that he worked at Sonic for a 3–month period and testified he worked at a bistro in Great Bend, but he failed to provide verification of that or any other job he claimed to hold. His main employment was related to providing childcare for his girlfriend's children. He did not receive monetary payment for his childcare services. Therefore, Father was unable to show he could individually financially support K.P.A. if K.P.A. were to reintegrate with Father. Father participated in some parenting skills classes as required but never completed a program. Testimony also supported a finding that Father struggled to use appropriate parenting skills while with K.P.A.
The record supports a finding of unfitness under K.S.A 38–2269(b)(9) because K.P.A. was in out of home placement for 19 of his 22 months of life and Father failed to complete the tasks on his case plan. Therefore, after reviewing all of the evidence in the light most favorable to the State, we conclude a rational factfinder could have found it highly probable that Father was unfit and unlikely to change in the foreseeable future as K.P.A. had been removed from the home for almost his entire life.
The last consideration is whether the district court correctly determined that terminating Father's parental rights was in K.P.A'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. 912 (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 Toronto 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 ––––, 336 P.3d 903, 910 (2014).
The court found termination of Father's parental rights was in the best interests of K.P.A.'s physical, mental, and emotional health. The court noted K.P.A. was moving rapidly in life. K.P.A. had bonded with his foster family; he had overcome his physical limitations suffered while in the care of Father and Mother; and he was clean, healthy, and deserved the opportunity for permanency. We are unwilling to conclude the district court abused its discretion in making such a finding.
Affirmed.