Opinion
No. 107,455.
2012-07-13
In the Interest of B.V.
Appeal from Shawnee District Court; Daniel L. Mitchell, Judge. Rachell I. Hockenbarger, of Topeka, for appellant natural mother. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Jennifer Martin Smith, guardian ad litem, for appellee.
Appeal from Shawnee District Court; Daniel L. Mitchell, Judge.
Rachell I. Hockenbarger, of Topeka, for appellant natural mother. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Jennifer Martin Smith, guardian ad litem, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The natural mother of B.V. appeals the district court's termination of her parental rights. Because the district court's findings of fact and conclusions of law are supported by clear and convincing evidence, that decision is affirmed.
In May 2010, the State filed a petition in Jackson County seeking to have B.V. declared a child in need of care (CINC). The petition was filed after B.V., who was approximately 2 months old, was admitted to the hospital with extensive bruising, damage to his tongue, and two fractured bones. B.V. was removed from his home in May 2010, after the district court entered an order of temporary custody.
Mother entered a no contest plea to the allegations contained in the CINC petition, In March 2011, the State filed a motion in Jackson County to terminate Mother's parental rights. The motion was filed, in part, because of injuries to A.V., Mother's infant daughter, who had intracranial bleeding and a skull fracture. That same month, Mother filed a motion to transfer venue of the case from Jackson to Shawnee County, since she and the children's father (Father) were living in Topeka. That motion was granted.
The Shawnee County District Court held a pretrial hearing in July 2011. By September 2011, the district court ordered the case plan to be changed from reintegration to adoption.
The district court considered the issue of the termination of Mother's parental rights at an evidentiary hearing that was conducted over several days in September 2011. Father relinquished his parental rights prior to the hearing. After the hearing, the district court concluded by clear and convincing evidence that Mother was unfit and that her unfitness was unlikely to change in the foreseeable future. After determining that it would be in B.V.'s best interests, Mother's parental rights were terminated. She appeals.
On appeal, Mother contends that the district court erred in finding it highly probable that the evidence presented by the State was true. Mother argues that she “substantially complied” with her reintegration plan and never abused B.V. In fact, she claims that she “did what she could” to protect her son.
The district court is required to make three findings before terminating parental rights. The court must find by clear and convincing evidence: (1) that the parent is unfit; (2) that the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future; and (3) that termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1).
When this court reviews a district court's decision to terminate 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). In B.D.-Y., 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.
Officer Dudley responded to the call when B.V.'s aunt reported his injuries. Officer Dudley noticed some “odd bruising” around B .V.'s abdomen, legs, and buttocks. The officer also noticed a bump on the top of his head. B.V.'s aunt showed Officer Dudley how B.V.'s tongue had been cut.
B.V. was admitted to the hospital. A CT scan showed that his brain was not injured. However, a skeletal survey showed that B.V. had a healing fracture of his right arm and an older, healed fracture of his leg. A treating physician testified that B.V. could not have inflicted these injuries on himself. The physician also noted that B.V.'s frenulum linguae was torn; the frenulum linguae is the tether at the base of the tongue. Artifacts from the healing process showed the doctor that there had once been “significant bleeding” in that area. Again, the doctor testified that it would not have been “physically possible” for B.V. to cause that injury. B.V. had bruising “throughout” his body. Blood tests revealed that B.V. did not have any blood disorders that could have caused excess bruising. B.V. also bore the marks from cigarette burns on his rib cage.
Officer Dudley spoke with Father, whose initial explanation was that B.V. bruised more easily than normal. Father explained away the bruises by saying that the facial bruising was caused by kisses from his grandmother. Mother also claimed the bruising was caused by B.V.'s grandmother kissing him. Mother claimed the injury to B.V.'s tongue was caused by thrush. Mother did admit that she might have caused some bruising on B.V.'s legs by handling him roughly when he was fussy. When interviewed by the police, Mother never asked about B.V.'s condition.
Heather Wilson, the family support worker initially assigned to this case, testified that Mother did not understand why B.V. had been removed from her home. Mother completed “the majority” of her reintegration tasks with Wilson. During visits, Wilson noticed that Father had more interaction with B.V. and that Mother tended to be “more reserved” with her child.
Katie Holm took over the case from Wilson and first met with Mother the day before A.V. was born. Holm gave Mother reintegration tasks, which included maintaining stable employment, continuing safe and stable housing, following the supervised visitation plan, completing parenting classes, providing negative UAs, and continuing mental health treatment.
Holm characterized Mother as “very cooperative,” honest, and forthcoming. However, her opinion changed when A.V. was taken into protective custody following the discovery of her injuries. After that occurred, Mother began telling different stories about how her bills were being paid. At the time of the termination hearing, Mother was living with her father. That home was not safe or appropriate for the children. At one point, Mother adamantly insisted that she was no longer with Father. But she also expressed, after a court date, that Father's bond conditions were too high, and she wanted to enter couple's therapy with Father. Holm said Mother's statements about Father were “all over the place.”
Holm testified about one court date when Mother became very angry about Father not being able to be bonded out of jail. Mother said she was “pissed” and questioned why her case manager was at the hearing. Mother threatened the foster parents, saying that they would “have the kids over her dead body because she would kill them first.” Holm characterized Mother as having an explosive temper and testified that Mother's behavior could “get very volatile very quickly.” Holm never saw Mother take any responsibility for what happened to her children. Instead, Mother continually blamed other people. This caused Holm to fear for the children's safety if they were returned to Mother. Holm also believed that Mother wanted to continue to be with Father, which meant that the children would not be safe in her care.
Holm monitored some of Mother's visits with her children. It was Holm's impression that Mother could engage A.V. during the visits; Holm did not see that ability with B.V. Holm claimed that B.V, did not seem to notice that Mother was present in the room.
Janet Lyon performed a psychological evaluation of Mother in August 2010. Mother denied any knowledge of the cause of B.V.'s injuries. Mother also believed the reports of B.V.'s injuries were exaggerated, and she apparently did not believe that B.V. had any broken bones. Lyon's report stated that Mother was “oblivious” to B.V.'s injuries and that she was “primarily concerned that other people were lying” about her.
Mother reported that she was a good parent. However, Lyon determined that Mother was only providing information which placed Mother in a positive light. Lyon believed that Mother was attending therapy only because she was required to do so.
The testing performed by Lyon showed that Mother has narcissistic personality traits, schizoid personality features, and paranoid personality features. The results of one test also suggested that Mother had major depressive disorder. The results of Mother's MMPI test were invalid because of the “high level of inconsistent responding.” Based on these findings, Lyon recommended that Mother take parenting classes. However, Lyon thought that the lack of parenting skills was not the real problem. Rather, Mother needed to better understand her personality issues before being able to better parent her child. She also wanted Mother to continue with individual therapy in order to “confront her issues” and to take ownership of her role in the situation with B.V. Ultimately, Lyon gave Mother a “guarded” prognosis. Mother was supposed to have a second mental health evaluation performed in May 2011, but she did not attend the appointment.
A.V. was admitted to the hospital in March 2011. At the time, she was not quite 1 month old. The CT scan revealed subdural hemorrhages on both sides and on the back of her brain. She also had a skull fracture and five fractured ribs. It was determined that A.V.'s injuries were caused by physical abuse.
Detective Dickey was on duty when dispatch called about A.V. He was called to respond because, at the time, it was unclear whether A .V. would survive her injuries. Detective Dickey immediately located Mother and interviewed her about A.V.'s injuries. Mother told Detective Dickey that A.V. had been fussy and was vomiting. Mother said that any bruises on A.V.'s legs were caused by the straps on her car seat, and she rejected the doctor's opinion that the car seat was not the cause of the bruising.
Initially, Mother denied knowledge of Father abusing A.V. She said that Father sometimes held down A.V.'s legs forcefully when he was trying to get her dressed, and that he once bumped A.V.'s head on the faucet when bathing her. Mother did admit that she once heard a “slapping noise” when Father was caring for A.V. Mother blamed the noise on the cat and did not get up to investigate. Eventually, Mother admitted that she saw Father punch A.V.
Detective Dickey also asked Mother about B.V. Mother said that one time Father pushed down B.V.'s legs until she heard a “popping sound.” Mother did not question it after Father told her that babies' legs were supposed to make that sound. Mother said that Father once took B.V. into a bedroom and locked the door. By the time she was able to enter the room, B.V.'s mouth was bleeding. Mother also saw Father touch B.V. with a lighted cigarette because Father “thought it was funny” to make B.V. cry.
When asked why she had never admitted any of this, Mother explained that she was afraid of Father and that he had previously threatened to kill her. Mother alternately said that she could not believe that Father “could do this to her.” Detective Dickey testified that Mother seemed more concerned about Father than she was about her children. He also testified that Mother seemed “in denial that anything was wrong.”
Mother was called to testify by the State. She refused to answer most of the questions asked of her because she invoked her Fifth Amendment right to silence. Mother did testify that she had only spoken with Father one time since he had been in jail and that she did that just to get her phone returned. Mother claimed that she had not spoken with Father since March 2011, and any evidence to the contrary would be erroneous. The State presented rebuttal testimony from Sergeant Biltoft of the Shawnee County Department of Corrections. The logs that Sergeant Biltoft produced showed that Mother visited Father on numerous occasions in April, May, and June of 2011.
There was testimony at the termination hearing that Mother completed most of her case plan tasks and was generally cooperative and compliant. However, the bulk of the testimony at the hearing centered on the fact that Mother has apparently failed to internalize any knowledge regarding her obligations to keep her children safe. This is best evidenced by the fact that A.V. suffered life-threatening injuries while Mother was completing case plan tasks. It does not appear that Mother ever accepted any responsibility for her children's injuries and was instead focused on casting blame elsewhere. Further, she perjured herself by lying on the stand about her continued contact with Father.
The district court found that Mother's failure to protect her children from abuse was itself abusive. That finding appears to be supported by evidence in the record on appeal, as does the district court's finding that Mother also neglected her children by failing to keep them safe. Similarly, there is clear and convincing evidence in the record on appeal that Mother failed to adjust her circumstances in order to help her children. While Mother might have been able to comply with simple case plan tasks, it seems clear that she wholly failed to adjust her circumstances to parent her children. Accordingly, we affirm the district court's decision to terminate Mother's parental rights.
Affirmed.