Opinion
No. 108,359.
2013-10-7
In the Interest of X.O., DOB XX/XX/2010.
Appeal from Johnson District Court; Kathleen Sloan, Judge. Dennis J. Stanchik, of Olathe, for appellant, mother. Steven J. Obermeier and Donald W. Hymer, Jr., assistant district attorneys, and Stephen M. Howe, district attorney, for appellee.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
Dennis J. Stanchik, of Olathe, for appellant, mother. Steven J. Obermeier and Donald W. Hymer, Jr., assistant district attorneys, and Stephen M. Howe, district attorney, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
J.O. (Mother), the natural mother of X.O. appeals the district court's termination of her parental rights. The court concluded there was clear and convincing evidence that Mother was unfit, the conduct or a condition which renders her unfit was unlikely to change in the foreseeable future, and termination of parental rights was in the best interests of X.O. See K.S.A.2012 Supp. 38–2269(a), (g)(1). In this appeal, Mother asks us to determine whether the court's decision is supported by clear and convincing evidence. For the reasons set forth below, we answer the question “Yes” and affirm.
Facts
This case concerns the care and custody of X.O., a young boy born in April 2010 to Mother and R.A. (Father). Up to and following X.O.'s birth, Mother and Father were involved in an “on-again, off-again” relationship that was often volatile, in part due to Mother's severe mood swings.
Mother has a history of serious mental health issues. Two years prior to X.O.'s birth, she was diagnosed with depressive disorder, psychotic disorder, conduct disorder adolescent-onset type, parent-child relational problem, cannabis abuse, alcohol abuse, other/unknown substance abuse, and attention-deficit/hyperactivity disorder. She was prescribed medication to help control her resulting delusions, paranoia, and depression. However, she quit taking that medication prior to and during her pregnancy with X.O.
Shortly after X.O. was born, the Kansas Department of Social and Rehabilitation Services (SRS) received a report citing concerns for his safety. That report resulted from the hallucinations and paranoia Mother exhibited during X.O.'s birth and concerns she would quit taking her medications upon release from the hospital. After Mother refused SRS's offer of family preservation services, members of her family caused her to be involuntarily committed to a psychiatric hospital.
Consequently, the State petitioned the district court to declare X.O. a child in need of care (CINC) when he was just 12 days old. The court granted SRS temporary custody and SRS placed X.O. in the care of Mother's cousin. Almost 6 months later, after receiving no-contest statements from both parents and a stipulation by the guardian ad litem, the court declared X.O. a CINC and ordered a 6–month reintegration plan.
As part of the CINC proceedings, Mother submitted to a court-ordered level III psychological evaluation and parenting evaluation conducted by Dr. Steve Hazel in August and September 2010. Dr. Hazel diagnosed Mother with schizoaffective disorder (depressive type) and parent-child relational problem. According to Dr. Hazel, these conditions caused Mother to have thought disturbances, delusions, and paranoia, which were likely to persist throughout her life. They would not, however, necessarily preclude Mother from parenting if she continued with appropriate treatment and support services in place.
There is no dispute that during these CINC proceedings, Mother had successfully completed a majority of the tasks assigned to her in the reintegration plan. For example, she had secured stable and appropriate housing with proper food and supplies; submitted monthly budgets; followed the recommendations of her court-ordered psychological evaluation; and completed parenting classes.
During the course of the CINC case, the social worker, mental health caseworker, and therapist assigned to aid Mother in working toward completion of the reintegration tasks reached differing opinions about her progress toward improving her decisionmaking and judgment skills and controlling her mood and behavior.
On the one hand, Emily Morgan, the social worker assigned to supervise Mother's visits with X.O. and otherwise monitor her progress did not feel Mother was completely honest with her. Despite Mother's completion of reintegration tasks, Morgan harbored ongoing concerns for X.O.'s safety in light of Mother's questionable choices, her financial and emotional instability, and her observed parenting skills. As a result, Mother never progressed beyond 2–hour supervised visits with X.O. during the CINC proceedings.
On the other hand, Mother's mental health caseworker, Julie Ruth, and her mental health therapist, Lindsay Mills, believed Mother had achieved the emotional and financial stability necessary to parent X .O. But Ruth and Mills each admitted that their assessments relied heavily upon Mother's communication with them during their brief visits, which ranged from a few hours per week to a few hours per month. But the record reveals that Mother was not always candid with them. For example, neither Ruth nor Mills were aware of some of Mother's behaviors that tended to suggest she might not be as stable as they thought, including her use of illegal drugs, which caused her to ask her father's girlfriend to provide a urine sample so she could pass a court-ordered urinalysis, her unsafe consumption of alcohol while on her medications, and her Facebook postings about an intent to have a romantic relationship and babies with a man in prison for second-degree murder after he is released. Ruth and Mills also expressed concern after learning that Mother's own father—who Mother identified as her primary support figure—did not believe she suffered from any mental health issues. This caused concern because it was vital that Mother's support system understood her mental health issues.
When the 6–month deadline for completion of the reintegration plan expired and X.O. still had not been successfully reintegrated with either parent, the court declined to grant any extensions, and the State moved to terminate Mother's and Father's parental rights.
In January 2012, the district court conducted a 2–day evidentiary hearing on the State's motion to terminate parental rights. Just prior to the hearing, Father voluntarily relinquished his parental rights. During the hearing, the court heard the sometimes conflicting evidence regarding Mother's fitness to parent X.O., who was 21 months old by that time. At the close of the hearing, the court took the matter under advisement so it could obtain transcripts and thoroughly review the evidence and its notes.
After careful consideration, the district court entered a 16–page memorandum decision in May 2012, in which it thoroughly detailed its findings in support of its judgment terminating Mother's parental rights. Those findings demonstrate that the district court considered all the evidence which we will discuss where necessary to the analysis of Mother's appeal from that decision.
Standard of Review
In reviewing 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). Evidence is “clear and convincing” if “the truth of the facts asserted is highly probable.” 286 Kan. at 697. Importantly, we cannot weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact on review. 286 Kan. at 705.
The District Court's Findings
Before terminating a parent's rights, a 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.2011 Supp. 38–2269(a), (g)(1). Mother's appeal challenges the district court's findings on the first two elements.
K.S.A.2012 Supp. 38–2269(b) and (c) provide a nonexclusive list of factors that district courts can consider when determining parental fitness. The existence of any of one of these statutory factors “standing alone may, but does not necessarily, establish grounds for termination of parental rights.” K.S.A.2012 Supp. 38–2269(f).
Here, the district court found Mother unfit under three of these factors: Mother's emotional and mental illnesses were of such a duration and nature as to render her unlikely to care for X.O.'s ongoing physical, mental, and emotional needs (K.S.A.2011 Supp. 38–2269[b][1] ); the failure of reasonable efforts made by appropriate public or private agencies (SRS and KVC Behavioral Health Care [KVC] ) to rehabilitate the family (K.S.A.2012 Supp. 38–2269[b] [7] ); and a lack of effort on Mother's part to adjust her circumstances to meet X.O.'s needs (K.S.A.2012 Supp. 38–2269[b][8] ).
Mother's first three issues on appeal challenge the sufficiency of the evidence to support each of these findings. The State urges us to find that all of Mother's challenges disregard our standard of review because a rational factfinder could have found each to be highly probable. We agree.
Mother's Emotional and Mental Illnesses Are of Such a Duration and Nature as to Render Her Unlikely to Care for X.O.'S Ongoing Physical, Mental, and Emotional Needs
In support of its finding that Mother was unfit under K.S.A.2012 Supp. 38–2269(b)(1), the district court acknowledged that she had attended all of her mental health therapy sessions and taken all medications required of her under the reintegration plan. Nonetheless, the court also found “the evidence also makes clear that [Mother] is either unwilling or incapable of applying what she learns in these therapy sessions to her daily life” and it is “clear that despite therapy and medication, [Mother] is still exhibiting thought disturbances and behaviors that would be detrimental to [X.O.] if he were returned to her care.” Mother raises three challenges to these findings.
First, Mother argues the statutory factor of parental unfitness “should not be invoked absent clear and convincing evidence of a mental illness that cannot be managed adequately,” which evidence she claims was lacking here. In support, she distinguishes the facts of her case from those in several other cases in which the appellate court has held that clear and convincing evidence supported the termination of parental rights based, at least in part, upon parental unfitness stemming from mental health conditions. She specifically cites and discusses the factual circumstances in several of those decisions.
However, given the inherent fact-driven nature of these decisions, an in-depth discussion of Mother's cited cases does not contribute significantly to our analysis. Her argument on this issue essentially asks us to place greater weight upon the evidence offered in her favor or to reassess credibility. Our standard of review constrains us from doing so.
Second, Mother suggests the evidence was insufficient to support the district court's finding under this statutory factor to the extent that it is based upon Dr. Hazel's testimony and his psychological evaluation report. According to Mother, Dr. Hazel offered only a diagnosis, not a prognosis or definitive opinion concerning her present or future ability to parent X.O. Once again directing us to Mills' and Ruth's testimony in her favor, Mother contends Dr. Hazel's report could not “take the place of [their] diagnostic impressions formed over the course of a therapeutic relationship between a specific clinician and a specific patient.”
We have reviewed Dr. Hazel's testimony. While he did not specifically offer a prognosis of Mother's future ability to parent, he unequivocally stated that her mental issues of schizoaffective disorder (depressive type) and parent-child relational problems, which he had diagnosed a couple of years prior to her giving birth to X.O., were very likely to persist throughout her life. The fact he may not have offered a specific opinion about her future ability to parent does not render his testimony insignificant or unimportant in the totality of the evidence in light of this undisputed opinion about Mother's future mental health prognosis. Also, the district court based its decision on far more than just Dr. Hazel's opinions. It considered the effect of several of Mother's ill-advised behaviors in combination with her mental health condition.
Third, Mother argues for the first time on appeal that the district court “failed to consider the applicability of K.S.A.2011 Supp. 38–2201(c)(1) in arriving at the conclusion that [she is] unfit to parent” X.O. because of her emotional and mental illnesses. That statute precludes the court from terminating parental rights based on the disability of such a parent “without a specific showing that there is a causal relation between the disability and harm to the child.” K.S.A.2012 Supp. 38–2201(c)(1).
Mother contends the record lacks evidence to establish a causal relation between her mental health disabilities and an inability to care for X.O. She argues the evidence in the record included only theoretical or statistical examples of potentially harmful conduct that someone with her mental health diagnoses might exhibit, none of which were related to her actual behaviors.
We disagree. The district court's findings of fact were sufficient to establish a causal relationship between Mother's mental health disability and the resulting past and potential future harm to X.O. Those findings were not, as Mother suggests, based on mere “hypothetical possibilities.” They were based on real concerns voiced by several witnesses, not just Dr. Hazel. The concerns included possible harm to X.O. if Mother followed through on her stated intentions to have a relationship with a prisoner convicted of second-degree murder or if she continued to not be candid with her mental health caseworker and therapist so they could provide her the necessary care to control her alcohol and drug use along with her serious mental health issues.
Reasonable Efforts by Social Service Agencies to Rehabilitate the Family Have Failed
In her second issue, Mother challenges the sufficiency of the evidence to support the district court's finding that she was unfit under K.S.A.2012 Supp. 38–2269(b)(7) because reasonable efforts had been made by appropriate social service agencies to rehabilitate the family but failed. In support of this finding, the court highlighted the fact that Mother had not advanced beyond 2–hour supervised visits with X.O. This was despite the fact that SRS and KVC have provided Mother over the past 2 years with numerous reintegration services that included supervised visits, resource placement services, referral services designed to help Mother interact appropriately with X.O., and general case management. The court found such lack of progress to unsupervised visitation was “due to [Morgan's] observation of more than 40 visits between [Mother] and [X.O.] and concerns regarding [Mother's] ability to parent, interaction with [X.O.] and [X.O.]'s safety.”
On this issue, Mother emphasizes the evidence that she was fully cooperative and she substantially completed her reintegration plan. She acknowledges Morgan's testimony at the termination hearing about her concerns with Mother's parenting skills, which precluded her from unsupervised visits with X.O. Mother suggests, however, that the court could not rely upon Morgan's concerns because they were either uninformed, overblown, not specific enough, unexplained, or were never properly relayed to Mother and her therapist so that Mother could make necessary adjustments to alleviate Morgan's concerns.
As with her previous argument, Mother's challenge to this finding of unfitness by the district court does little more than call upon us to reweigh the evidence or assess credibility. Her arguments also disregard other evidence in the record, which tends to demonstrate that the reasonable efforts to rehabilitate this family were not based solely upon Morgan's concerns for Mother's parenting skills.
Lack of Effort on Mother's Part to Adjust Her Circumstances to Meet X.O.'S Needs
In her third issue on appeal, Mother argues the district court's finding that she was unfit under K.S.A.2012 Supp. 38–2269(b)(8) due to a lack of effort or unwillingness on her part to adjust her circumstances to meet X.O.'s needs was not supported by clear and convincing evidence.
The district court relied upon several incidences of Mother's conduct discussed during the 2–day hearing to support this finding. For example, the court focused upon: (1) Mother's decision to ask another person to provide a court-ordered urine sample for her because Mother suspected she would test positive for cocaine, which deception precluded the court from knowing whether, and to what extent, Mother might have used illegal drugs during the integration process; (2) Mother's lack of candor with her caseworker (Ruth) and therapist (Mills), who both admitted “would affect their analysis of [Mother's] success in controlling her mental illnesses”; (3) Mother's choice of her father as her support system, given that he did not believe or would not admit that she has mental health issues; and (4) Mother's intentions to move to Missouri, despite the fact that she had been warned it would significantly impede the reintegration process. The court further found that Mother had “failed on several occasions to apply the things she has learned in therapy to control her mood and behaviors,” citing Mother's postings on Facebook, which included: (1) derogatory comments about Father; (2) her intent to engage in the relationship with the prisoner as discussed above; and (3) instances in which she drank excessive amounts of alcohol.
Mother does not deny the evidence upon which the district court relied in making this finding. She suggests, however, that the court's findings “exaggerate the content of the evidence”; and she once again insists that we should instead look to the evidence in her favor to find the record lacks clear and convincing evidence to support the finding.
This is certainly not a case where, as Mother contends, the district court relied solely upon “Morgan's bald concern that Mother would not be able to care for X.O. adequately.” Moreover, as Mother openly acknowledged during the hearing, her completion of tasks on the reintegration plan did not necessarily mean that X.O. would be returned to her care.
Mother's Conduct or Condition Which Renders Her Unfit is Unlikely to Change in the Foreseeable Future
In her fourth and final issue on appeal, Mother challenges the sufficiency of the evidence to support the district court's finding that her conduct or condition which rendered her unfit was unlikely to change in the foreseeable future. In this regard, the district court specifically found:
“[Mother's] actions and attitude about her mental health up to this point lead to the Court's conclusion that she is unwilling to follow through on what is required of her to control her mental illness. She has decided to take illegal drugs, drink excessively after advice that doing so would detrimentally affect her mental health medications, she refuses to recognize that she needed psychological help after [X.O.'s] delivery, she has chosen to utilize family support which refuses to recognize she has a mental illness, she has not been completely honest with her mental health support professionals, and she has failed to apply many of the things she was supposed to have learned through therapy to control her mood and behaviors. Based on her behavior over nearly two years prior to trial, the court finds that her unfitness is not likely to change in the foreseeable future.”
It appears that several important legal principles found in both the CINC statutes and caselaw guided the district court in arriving at this conclusion. First, our legislature has declared it a public policy of this state to acknowledge that a child's perception of time differs from an adult's and “to dispose of all proceedings under [the CINC] code without unnecessary delay.” K.S.A.2012 Supp. 38–2201(b)(4). Our courts often cite to this policy in reiterating that courts will consider what constitutes the “foreseeable future” in “ ‘child time,’ “ not “ ‘adult time.’ “ In re D.T ., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002) (quoting In re C.C., 29 Kan.App.2d 950, Syl. ¶ 2, 34 P.3d 462 [2001] ). Second, we have noted that courts can consider a parent's past history to judicially predict the reasonable likelihood of any change in parental unfitness. See In re Price, 7 Kan.App.2d 477,483, 644 P.2d 467 (1982).
Mother acknowledges these legal principles in her brief. Nevertheless, she again asks us to focus on the evidence that she has completed almost all of the tasks assigned to her in the reintegration plan and determine that this finding lacks support by clear and convincing evidence. According to Mother, it was unfair or illogical for the district court to predict her future behavior based solely on single incidences of her poor judgment, to characterize those incidences as deliberate decisions on her part, or to predict that she cannot improve her parenting skills to the necessary levels—particularly when she was never informed by Morgan of what was wrong with her parenting skills in the first place. But a close review of the court's detailed 16–page decision reveals it considered facts occurring over a 2–year period in reaching its decision. It did not improperly draw inferences or make inappropriate, hypothetical leaps to find that Mother's conditions of unfitness were unlikely to change in the foreseeable future.
Once again, Mother's sufficiency challenges here are primarily reiterations of her positions taken on the previous issues concerning the evidence offered in her favor. They call for reweighing the evidence or assessing credibility in contravention of our standard of review.
In sum, the record here supports the district court's finding that it is highly probable Mother is unable to adequately care for X .O. now and that this reality is unlikely to change in the foreseeable future.
Affirmed.