Opinion
No. 108,320.
2012-12-28
In the Interest of X.M.
Appeal from Ellis District Court; Edward E. Bouker, Judge. Mark A. Blehm, of Russell, for appellant natural father. Charlene Brubaker, assistant county attorney, for appellee.
Appeal from Ellis District Court; Edward E. Bouker, Judge.
Mark A. Blehm, of Russell, for appellant natural father. Charlene Brubaker, assistant county attorney, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
C.F. (Father), the natural father of X.M., appeals the termination of his parental rights. Because the district court's decision is supported by clear and convincing evidence, we affirm.
Facts
Father resides in Mississippi and has done so for at least the last 20 years. With the exception of a 60–day period before moving to Kansas with Mother, X.M. has never lived with Father. After moving to Kansas, X.M. lived with Mother, Mother's fiancé, and X.M.'s two younger sisters.
X.M. started kindergarten at Roosevelt Elementary School in Hays, Kansas. Although school started on August 20, 2008, X.M. did not begin attending until September 19, 2008. Thereafter, X.M.'s school attendance was sporadic and, by the end of the 2008–2009 year, he had missed over 3 months of instruction.
The Kansas Department of Social and Rehabilitation Services made a family preservation services referral to St. Francis Community Services (SFCS) on March 19, 2009. Family preservation services were provided to X.M. in his mother's home from March 19, 2009, to May 19, 2009. In addition, Mother sought out assistance and support from High Plains Mental Health Center with regard to X.M. Kenneth Windholz, a licensed clinical psychotherapist at High Plains Mental Health Center, first saw X.M. in April 2009. Mother reported to Windholz that X.M. had attention deficit hyperactivity disorder, was aggressive and difficult to control at home, and was having trouble at school. In an attempt to gather more information about X.M., Windholz contacted school personnel. School staff reported that they saw X.M. as withdrawn, sad, and isolating, and they did not observe hyperactivity or aggressive behaviors. Windholz and Dr. Larry McDonald, a staff psychiatrist at High Plains Mental Health Center, ultimately diagnosed X.M. with post traumatic stress disorder subsequent to neglect.
On May 19, 2009, Mother called an SFCS case worker to request that X.M. be removed from her home. Law enforcement and social services staff removed X.M. from Mother's home and placed him in protective custody that same day. On May 21, 2009, the State filed a petition requesting the court adjudge X.M. as a child in need of care (CINC). The petition was filed based on concerns about X.M. related to reports of excessive absenteeism at school, physical abuse and neglect, hoarding food at school, and “undue” weight loss. The petition stated that Father lived in Mississippi, but the State did not have enough information to know whether Father would be an appropriate placement for X.M.
X.M. was formally adjudicated a child in need of care at a hearing on July 1, 2009. Both Mother and Father appeared at the hearing in person and through counsel. Father entered a no contest plea to the allegations set forth in the CINC petition. In conjunction with adjudication, both parents were ordered to submit to psychological evaluations with a parenting emphasis. Father was ordered to pay child support in the amount of $20 per month. The court also ordered the State to initiate the Interstate Compact on the Placement of Children (ICPC) process to determine whether Mississippi would approve X.M. moving from Kansas to Mississippi to live with Father.
An order of disposition was entered on July 29, 2009, with a concurrent plan of reintegration and adoption. In November 2009, Father was given case plan tasks, which included completion of parenting classes, a mental health assessment, a drug and alcohol assessment, and random drug tests. At some point after adjudication, Mississippi notified Kansas that it would not approve X.M.'s move from Kansas to Mississippi based on Father's history of domestic battery convictions, his lack of sufficient income to support X.M., and concerns over X.M.'s lack of bonding with Father.
In September 2010, the State filed a motion seeking the termination of parental rights. Although acknowledging in the motion that Father completed many of his case plan tasks, the State alleged he remained unfit to parent X.M. under several of the statutory factors set forth in K.S.A.2011 Supp. 38–2269.
The district court held an evidentiary hearing over a series of days in order to evaluate the State's claims. After hearing testimony from witnesses and arguments from counsel, the district court found by clear and convincing evidence that Father was unfit and that his unfitness was unlikely to change in the foreseeable future. In so finding, the district court relied on K.S.A.2011 Supp. 38–2269(b)(8) (lack of effort on the part of the parent to adjust the parent's circumstance, conduct, or conditions to meet the needs of the child); K.S.A.2011 Supp. 38–2269(c)(2) (failure to maintain regular visitation, contact, or communication); K.S.A.2011 Supp. 38–2269(c)(3) (failure to carry out a reasonable reintegration plan); and K.S.A.2011 Supp. 38–2269(c)(4) (failure to pay a reasonable portion of child care costs).
The journal entry actually references K.S.A.2011 Supp. 38–2269(c)(8), which does not exist. Based on the language which accompanies the statutory citation, it is clear the district court meant to reference (b)(8).
Father appealed that decision to this court. A panel of this court reversed and remanded the case after finding that the district court failed to consider whether termination of parental rights was in X.M.'s best interests. The matter returned to the district court, where the parties agreed that there was no need to present additional evidence. The district court found that termination would be in X.M.'s best interests. Father again appeals that finding to this court.
Analysis
Father argues there is insufficient evidence from which the district court could have found that he was unfit. Father also challenges the court's finding that termination of parental rights was in X.M.'s best interests.
The district court is required to make three findings before terminating parental rights. The court must find by clear and convincing evidence that the parent is unfit, that the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future, and that termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1).
When an appellate court reviews a district court's termination of parental rights, it considers “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). In that case, the court explained that “clear and convincing evidence” requires the factfinder to believe “that the truth of the facts asserted is highly probable.” 286 Kan. at 697.
1. Unfitness
In July 2009, case workers initiated the ICPC process with Mississippi. The ICPC was denied by Mississippi on three grounds: first, that Father had a prior domestic battery charge; second, that he had no source of income; and third, because of concerns over X.M.'s lack of bonding with Father. At some point in 2010, a second ICPC was submitted to Mississippi for Father. It was again denied since there had been no changes made since the first ICPC was rejected.
After the ICPC was denied, a case worker spoke with Father about him moving to Kansas, which would render the ICPC unnecessary. Father told the case worker that such a move would be “impossible,” since he owned his home, had no source of income, and was essentially “stuck” where he was. At the termination hearing, Father testified that he would come to Kansas if the State was willing to help him. Father testified that he “did nothing” to his child and did not in any way cause X.M. to be “in this predicament.” Father suggested that X.M. should be put in his home and that a TV monitor be installed, like on “Dr. Phil.”
It took Father approximately 1 year to complete his parenting classes and drug and alcohol assessment. A case worker also described Father's psychological evaluation as “not being that favorable.” That evaluation, performed in July 2009, produced a diagnosis of narcissistic personality disorder, schizoid personality features, and paranoid personality features. The evaluator thought that Father was “genuinely interested in caring for his son.” But Father's personality profile suggested that there were doubts that he would be able to parent on a consistent basis. It was the evaluator's opinion that if Father were allowed to parent it would be “essential” for him to begin therapy to boost his parenting skills, “address his impulsivity and anger outbursts,” and provide an environment that met X.M.'s needs. As of the time of the termination hearing, Father had not sought any therapy but indicated that he would if asked to do so.
At the termination hearing, Father testified that he was awaiting word on his disability status and that a hearing was pending. A notation in Father's psychological evaluation reflects that Father's initial disability claim was denied and that Father's mother had been financially supporting him.
During the course of this case, Father had fewer than 10 visits with X.M. The last recorded visit that Father had with X.M. in Kansas was in August 2010. Father skipped a visit in October 2010 after coming to Kansas for a court hearing. With that said, Father maintained more or less weekly telephone contact with X.M. and, during the visits he did have with X.M., Father was described as “attentive.”
When Windholz started therapy with X.M. in April 2009, X.M. essentially was nonverbal. His affect improved almost immediately after being removed from Mother's home. X.M.'s only remaining diagnosis as of the termination hearing was post traumatic stress disorder subsequent to neglect. X.M. told Windholz that Father once gave him beer and that Father once spanked him for putting his shoes on the wrong feet. Father denied those allegations.
When asked if he wanted to live with Father, X.M. was ambivalent. It was Windholz' opinion that if X.M. were to be reintegrated with a parent, it would need to happen in Kansas. This opinion was based on the fact that there had been very limited contact between X.M. and Father over the last couple of years. Windholz simply could not recommend that X.M. be returned to Father's home given the time that had elapsed without contact.
Father has a total of seven children. He is in regular contact with the four older children. He described having a “[v]ery good” relationship with all of them. Father lives with his fiancee. Father has never been a primary parent for any of the children. He testified that there was never a need for him to do so because he trusted the children with their mothers. Father had not paid any of the $20 per month in child support that he was ordered to pay. X.M. sometimes referred to Father as his uncle.
In ruling from the bench, the district judge found that before X.M. was removed from Mother's home, Father was a “hands-off, stand-off, far-away father without much connection to the child's life in a real and impactful nature.” Following X.M.'s removal, the court considered Father's lack of effort to adjust Father's circumstances, conduct, or conditions to meet the X.M.'s needs, which is the conduct contemplated in K.S.A.2011 Supp. 38–2269(a)(8). Given the fact that Father's ICPC was denied, the district court saw no avenue by which reintegration with Father in Mississippi could be pursued. X.M. needed Father to bond with him and parent him in Kansas. Father failed to explore or take any step toward moving to Kansas during the 2 years in which this case was pending and there was no evidence presented to establish that these circumstances would change in the reasonably foreseeable future.
Based on the evidence presented, the district court concluded that Father was unfit to parent X.M. under K.S.A.2011 Supp. 38–2269(b)(8) (lack of effort on the part of the parent to adjust the parent's circumstance, conduct, or conditions to meet the needs of the child); K.S.A.2011 Supp. 38–2269(c)(2) (failure to maintain regular visitation, contact, or communication); K.S.A.2011 Supp. 38–2269(c)(3) (failure to carry out a reasonable reintegration plan); and K.S.A.2011 Supp. 38–2269(c)(4) (failure to pay a reasonable portion of child care costs). We find the district court's ruling is supported by clear and convincing evidence. We acknowledge, as did the district court, that Father completed many of his reintegration tasks. But the simple fact is that X.M. cannot be sent to Mississippi and Father did not pursue or make any other effort to relocate to Kansas in the 2 years during which this case was pending. 2. Best Interest of the Child
Father asserts the district court erred in finding that termination of his parental rights was in X.M.'s best interest. We disagree.
The applicable statutory provision is K.S.A.2011 Supp. 38–2269(g)(1), which sets forth the following standard:
“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 interest 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.”
We find the district court fully complied with the statutory requirement. In terminating Father's parental rights and approving a permanency plan of adoption, the court specifically found X.M. to be a “particularly needy young man” who needs parents “willing to conform their behavior to his particular needs, and their circumstances to his needs.” At the June 5, 2012, hearing on remand for further findings, the court stated that X.M. “has great physical and emotional needs” and concluded that Mother and Father “are simply unable to step forward to meet those needs—and particularly let's address father—that he had some hard choices to make and he made those choices ... those choices were not to do what was necessary to help” X.M. The court also found at the June 5, 2012, hearing that “the best interest of [X.M.] is stability, is permanency, and as quickly as he can get it, and that is only achievable by termination of parental rights.”
We find clear and convincing evidence supports the court's determination under K.S.A.2011 Supp. 38–2269(g)(1) that X.M.'s physical, mental, and emotional health would be best served if Father's parental rights were terminated.
Affirmed.