Opinion
No. 106,939.
2012-08-31
In the Interest of T.T. and B.T., Minor Children.
Appeal from Sedgwick District Court; James L. Burgess, Judge. Michael E. Lazzo, of Wichita, for appellant natural father. Larry S. Vernon, staff attorney of Kansas Department of Social and Rehabilitation Services, of Wichita, for appellee.
Appeal from Sedgwick District Court; James L. Burgess, Judge.
Michael E. Lazzo, of Wichita, for appellant natural father. Larry S. Vernon, staff attorney of Kansas Department of Social and Rehabilitation Services, of Wichita, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
C.T. (Father), the natural father of T.T. and B.T., appeals from the district court decision terminating his parental rights. Specifically, Father contends the evidence was insufficient to support the district court's decision. For the reasons stated below, we affirm.
Facts
In April 2008, the State filed a petition in which it sought to have 9–year–old C.C, 7–year–old T.T., and 2–year–old B.T. declared to be children in need of care (CINC). C.C. is not Father's biological child; the present appeal only involves Father's parental rights as they pertain to his biological children, T.T. and B.T.
From 2000 to 2008, the Kansas Department of Social and Rehabilitation Services (SRS) received 16 reports alleging unsafe conditions and absence of supervision for the children living in Mother and Father's home. Of those 16 reports, 12 were found to be unsubstantiated with no further action required. The results of an investigation into four of the reports, however, prompted SRS to refer Mother and Father to various community agencies for assistance.
In 2007, SRS referred the family to DCCCA Family Preservation for education and other support services. At the time the CINC petition was filed in 2008, DCCCA agreed that the children should be removed from the home and placed in SRS custody. The CINC petition alleged that Mother failed to provide a safe and stable living environment for the children, did not have a source of income, failed to follow through with DCCCA and SRS recommendations, and had a history of domestic violence and contact with law enforcement.
Father was incarcerated when the CINC petition was filed and when the temporary custody hearing was held. He was, however, released in time to attend the adjudication hearing. Mother and Father both stipulated to the allegations in the CINC petition, and the district court adjudicated the children to be in need of care. The court issued several interim orders for Mother and Father, which included maintaining appropriate housing and full-time employment, attending individual therapy and couples counseling, and completing parenting classes and psychological evaluations.
At permanency hearings in late 2008 and throughout 2009, the district court found that the parties were making adequate progress towards reintegration and that reintegration continued to be a viable option. The district court approved a reintegration plan on November 12, 2009, and the children were reintegrated into the home on February 26, 2010, after completing a 30–day provisional reintegration.
In August 2010, approximately 6 months after reintegration, the children were removed from the home a second time due to Mother's inability to function, allegations that Mother had given the children the wrong medication, and reports that Mother had left the children unsupervised.
In March 2011, the State filed a motion to terminate the parental rights of both Mother and Father. With respect to Mother, the motion alleged she failed to comply with district court orders and requirements, lacked independent housing, was inconsistent in attending visits, and failed to complete reintegration or safety plans. With respect to Father, the motion alleged he failed to provide T.T. and B.T. with a safe and stable home environment and failed to come up with a plan to meet the ongoing physical, mental, and emotional needs of the children given Mother's evident inability to do so.
On June 27–28, 2011, the district court held an evidentiary hearing to consider the State's motion to terminate parental rights. At the end of the second day, the court indicated that although it already had decided Mother's parental rights would be terminated, it did not yet feel comfortable making a decision about Father's rights and therefore would continue the matter to a later date. Citing concern about deficiencies in Father's individual therapy sessions and Father's failure to sever his relationship with Mother, the court directed Father to use the time before the next hearing to attend therapy and gain insight into his relationship with Mother and the reasons he had stayed in the relationship to the detriment of his children.
The parties reconvened on August 29, 2011. Mother did not appear. When the hearing concluded, the district court determined by clear and convincing evidence that Father was unfit and that his conduct or condition was unlikely to change in the foreseeable future. After determining that termination was in the children's best interests, the district court terminated Father's parental rights.
Standard of Review
Termination of parental rights is controlled by K.S.A.2011 Supp. 38–2269(a), which requires the district court to find “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.” The court considers a variety of statutory factors in making a determination regarding fitness. See K.S.A.2011 Supp. 38–2269(b) and (c). The existence of any of these factors, “standing alone may, but does not necessarily, establish grounds for termination of parental rights.” K.S.A.2011 Supp. 38–2269(f).
When this court reviews a district court's termination of parental rights, we 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” requires the factfinder to believe “that the truth of the facts asserted is highly probable.” 286 Kan. at 697. The appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. In addition, the court construes the phrase “foreseeable future” in terms of “child time” as opposed to “adult time.” See In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
Analysis
Father argues on appeal that there was insufficient evidence presented to support the district court's decision to terminate his parental rights. Father's argument is threefold. First, he alleges the district court's finding of unfitness was not supported by clear and convincing evidence. Second, Father alleges that efforts made to rehabilitate the family were not reasonable because a reintegration plan involving Father alone was never implemented. Finally, Father alleges the evidence was contrary to the district court's ruling that termination was in the best interests of the children. We address each of these allegations in turn.
The evidence supports a finding of unfitness
The district court found Father unfit based on a lack of effort by Father to adjust his circumstances, conduct, or condition to meet the needs of the children (K.S.A.2011 Supp. 38–2269[b][8] ) and his failure to assure care of the children in the parental home when he clearly was able to do so (K.S.A.2011 Supp. 38–2269[c][1] ). The court also found that Father's failures in this regard were unlikely to change in the foreseeable future. Based on the facts in the record, we affirm the court's decision.
The CINC petition filed in April 2008 alleged that Father was not an appropriate placement because he was incarcerated, had failed to provide a safe and stable living environment before he was incarcerated, and had a history of domestic violence with Mother. When the motion to terminate parental rights was filed against him 3 years later, he no longer was incarcerated and had no additional reported incidents of domestic violence. Nevertheless, the principal allegation in the motion to terminate was identical to the main allegation in the original CINC petition filed 3 years earlier: Father failed to provide a safe and stable living environment for his children.
Father testified at the termination hearing that although the CINC case had been pending for over 3 years, he had never requested, obtained, or even read the allegations in the CINC petition brought against him. Father admitted that he and Mother had problems with the children prior to his incarceration and before they were removed from the home. Father shared the blame with Mother for the children's initial custody removal in 2008, but he noted that those problems developed, in part, because he worked 12– to 14–hour days and was not spending quality time with them.
Notwithstanding Father's belief that the children were taken from the home in 2008 because they were not properly cared for in his absence, the evidence at the hearing established that Father was aware during the reintegration period that Mother was failing to provide T.T. and B.T. with a safe and stable home environment but failed to take any affirmative steps necessary to remedy the situation. In fact, Father conceded at the hearing that when the children were reintegrated back into the home 21 months after they were removed, he did not pay attention to whether they were getting to school, whether they were getting their medication, or whether they were maintaining the structured schedule needed for them to successfully reintegrate back into the home. At the time of the hearing, Father testified that he worked or attended school from 8 a .m. to 10 p.m.
Brandon Jacobs, a clinical specialist with Youthville who provides in-home therapy, began working with Father and the family when reintegration occurred in January 2010, and he continued to work with them until the second removal of the children in August 2010. Jacobs prepared a monthly summary of work done with the family during that month. His records showed that he had 16 sessions, each lasting 1 1/2 hours with the family. His goals were to help them establish structure within the family and to focus on the relationship between the parents.
Jacobs testified that when he began working with Father, Mother, and the children, there appeared to be a normal level of anxiety in the home for families going through transition. The children could be redirected and discipline was appropriate. Some work was needed to establish structure and routine but the level of structure appeared appropriate. Jacobs said he concentrated a lot of effort on coparenting. It was apparent that Mother had emotional issues and that Father's presence helped stabilize the home. Most of Jacobs' concerns revolved around Mother.
Jacobs said that by August 2010, however, the overall tone of the family relationship was noticeably different by self-report and by his own observations. There was a heightened level of conflict and anxiety. Specifically, family therapy conducted in June and July focused on Father's frustration with Mother's inability to properly care for and supervise the children during the day when he was gone. By August, it became clear that Father's frustrations gave rise to significant conflict between Mother and Father. The parents reported to Jacobs that they both had difficulty managing the children's behavior and that the behavior of the children continued to decline. As the parents progressively lost control of the structure and routine of the home, Jacobs observed the children react accordingly. Jacobs testified that by August, the children were increasingly defiant, had more trouble regulating their behavior and maintaining their composure, and were harder to redirect.
Father testified that pursuant to a court order, he saw a therapist, Sid Mead, periodically over the 3–year period during which this case was pending. Father reported that the issues addressed in therapy, however, dealt with his own attempt to cope with the removal of the children from his home in 2008 and then again in 2010 and not with the steps it would take to provide a safe and stable home environment for his children. Although Mead testified to his opinion that reintegration with Father alone could be successful, Mead admitted on cross-examination that his opinion was primarily based on what Father had told him. While Father informed Mead that he had previously spent time in jail and had abused drugs in the past, Mead never saw the CINC petition, never met the children, knew very little about the children's diagnoses, and knew “next to nothing about” Mother. Mead also never read any official documents relating to why the children initially came into custody in 2008 or why they were removed again after the 2010 reintegration. Mead was not aware that SRS had received 16 prior intakes concerning the family when Father had been living in the home.
Considering all of the facts set forth above in a light most favorable to the State, a rational factfinder could have found it highly probable that Father did not put forth the effort necessary to adjust his circumstances, conduct, or condition to meet the needs of the children and, because he already had been given 3 years to do so, Father's failure to do so was unlikely to change in the foreseeable future.
Rehabilitation efforts were reasonable
Father also claims that rehabilitation efforts were not reasonable because they did not involve reintegration with him alone; rather, every plan and reintegration effort involved coparenting between Mother and Father. Father contends these efforts were “doomed to fail” because Mother was an impediment to reintegration.
Contrary to Father's argument, the evidence demonstrates that he was provided with opportunities to participate in reintegration without Mother. To that end, Mother testified that in September 2010, after the children were removed from the home a second time, Youthville met with Mother and Father to advise them that the possibility of reintegration remained a viable option only if it was pursued with Father alone. Notwithstanding this advice, Mother decided she would continue to live with Father until their income taxes were filed in the spring of 2011 and then she would think about moving out. Mother informed Youthville of their decision on or about December 5, 2010. At the termination hearing, Mother readily admitted her personal belongings remained in Father's home as late as March 2011, and she did not change her mailing address until approximately May 2011. Mother explained that she was grieving over the fact that she was being forced to divorce Father when she still loved him very much.
A Youthville employee confirmed Mother's testimony. Specifically, the employee testified that in September 2010 Youthville contemplated a plan where the children would first be reintegrated with Father and the agency would later assess whether it was safe to reintegrate Mother back into the home. Although he knew about this plan, it appears that Father permitted Mother to live in the family home for approximately 7 more months. At this point, Youthville abandoned its plan to reintegrate the children with Father only and recommended that a motion be filed to terminate Father's parental rights.
Other Youthville employees providing services to the family testified as well. These witnesses testified that they also had questions about whether Father really had severed contact with Mother. After Father reported that Mother had moved out of the home in February 2011, a Youthville employee made an unannounced visit to the home in March 2011 and found evidence of Mother's continued presence there, including Mother's clothes in the closet and drawers, female hygiene products, and two toothbrushes in the bathroom. Even after the divorce, Mother was often seen leaving Father's house and carrying mail as the supervisor arrived for Father's visitation.
Youthville employees further testified that following the June 2011 hearing, Father was allowed additional unsupervised visitation with the children in order to see if he could truly separate himself from Mother and parent the children on his own. In July, the children reported that they were talking to Mother during the visits. Thereafter, Father's visitations were supervised. When Father was informed that the visits were going to be supervised because of what the children had reported, Father claimed that the children were lying. A Youthville employee asked if he could review Father's phone logs from the dates of the visits. The employee observed multiple phone calls and text messages made to Mother on those dates. When the employee questioned Father about retrieving call logs from other dates that had been deleted from the phone, Father said that his phone company could not provide those records. The employee later learned that the phone company could provide the records upon request. The employee also testified that Father had not attended any of the children's doctor's appointments and did not appear to be working diligently to attend individual therapy, as ordered by the district court. Citing concerns about the safety and mental health of the children if they were placed back in the home, as well as the length of time the children had been in custody and the lack of progress since 2008, Youthville employees recommended termination of Father's parental rights.
T.T.'s therapist testified that if Father was being dishonest about contact with Mother, he would have concerns about Father's ability to effectively parent his children without Mother. The therapist also testified that he would have serious concerns if Father knowingly allowed the children to have contact with Mother. Youthville employees, who had supervised numerous visits and worked with the family during the reintegration process, testified that Mother continued to play a big part in Father's life. Although Father appeared to do a good job managing the children during supervised visits, the Youthville employees believed reintegration with Father alone would place the children's health and safety at risk because his recent actions demonstrated that he could not be trusted to keep Mother away from the children.
Considering all of the facts set forth above in a light most favorable to the State, a rational factfinder could have found it highly probable that the appropriate agencies put forth a reasonable effort to reintegrate the children with Father alone but that effort failed based on Father's decision to permit Mother to live in the family home for approximately 7 months after the plan was presented.
Termination of Father's parental rights was in the best interests of the children
Finally, Father claims there was insufficient evidence to show that termination of his parental rights was in the children's best interests. He alleges that the district court's ruling in this regard was conclusory and unsupported by the evidence.
After finding that a parent is unfit under K.S.A.2011 Supp. 38–2269(a), a district court must determine whether it would be in the best interests of the children to terminate the parental rights. K.S.A.2011 Supp. 38–2269(g)(l) states in pertinent part:
“If the court makes a finding of unfitness, the court shall consider whether termination of parental rights as requested in the petition or motion is in the best interests of the child. In making the determination, the court shall give primary consideration to the physical, mental and emotional health of the child. If the physical, mental or emotional needs of the child would best be served by termination of parental rights, the court shall so order.”
The district court is in the best position to make findings on the best interests of the children, and its judgment will not be disturbed in the absence of an abuse of judicial discretion. In re K.P., 44 Kan.App.2d 316, 318, 235 P.3d 1255,rev. denied 291 Kan. 911 (2010). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009).
Father's argument that the district court failed to make specific findings as to why termination of his parental rights was in the children's best interests is without merit. K.S.A.2011 Supp. 38–2269(g)(1) does not require a district court to make specific findings when determining that termination is in the child's best interests; all that the statute requires is that the court give consideration to the child's physical, mental, and emotional health. See K.S.A.2011 Supp. 38–2269(g)(1). Here, the court gave such consideration. The evidence before the district court established that contact with Mother was detrimental to the children and that Father had facilitated this contact to the detriment of his children. The evidence also established that the children were doing well in their respective placements. Thus, it was entirely reasonable for the district court to conclude that terminating Father's parental rights would be in the best interests of the children. The court's decision in this regard was neither arbitrary nor fanciful.
In sum, clear and convincing evidence supports the district court's finding that Father was unfit and that it would be in the children's best interests to terminate Father's parental rights under K.S.A.2011 Supp. 38–2269(a) and (g)(1).
Affirmed.