Opinion
No. 107,950.
2012-11-2
In the Interests of S.C. and B.C.
Appeal from Johnson District Court; Kathleen Sloan, Judge. Dennis J. Stanchik, of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
Dennis J. Stanchik, of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Kathryn S. Barker, of Lawrence, guardian ad litem.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Prior to terminating a parent's parental rights, the district court must find by clear and convincing evidence that the parent is unfit, the conduct or a 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). E.C. (Mother), the natural mother of S.C. and B.C., appeals the district court's termination of her parental rights. We are asked to determine whether the district court's decision is supported by the evidence. Finding that it is, we affirm.
Factual and Procedural History
While performing a welfare check, authorities discovered B.C., age 2, and S.C., age 3, living with Mother in unsafe and unsanitary conditions in a home without utilities and with rotting food and beer cans littering the home. The children were placed in protective custody after Mother and a man found hiding in a bedroom of the home (not the children's father) were arrested, taken to jail, and charged with felony distribution of methamphetamine that was also found in the home. The children's father, C.C. (Father), was not a viable placement due to a pending domestic abuse charge with Mother as the victim.
Both parents subsequently stipulated that the children were in need of care (CINC), and the court placed the children in the custody of the Kansas Department of Social and Rehabilitation Services (SRS). The children were then cared for by a foster mother in Iola, Kansas. Venue was transferred to the Johnson County District Court in August 2010 because both parents had separately moved there. That court subsequently granted Mother at least two extensions of time to complete tasks she had been assigned to aid in reintegrating the children into her home. The district court reiterated those tasks in a formal reintegration plan in November 2010 to assure Mother had clear directions about what was expected of her. By April 2011, Mother had made some progress toward completing reintegration tasks, but the court refused to grant any more extensions because of how long the children had been in out-of-home placement.
Almost 14 months after the CINC determinations, the State moved to terminate both parents' parental rights to the children. Following an evidentiary hearing, the district court granted the motion. Mother appeals. Father did not appear at the termination hearing and has not appealed.
Analysis
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, 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 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). 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.
In making a determination of unfitness, K.S.A.2011 Supp. 38–2269(b) and (c) provide factors for the court to consider. Although the court is not limited to the factors listed in the statute, the existence of any one of the listed factors may establish grounds for termination. K.S.A.2011 Supp. 38–2269(f).
Here, the district court found Mother unfit under five of these statutory factors: failure of reasonable efforts by appropriate public or private agencies to rehabilitate the family (K.S.A.2011 Supp. 38–2269[b][7] ), lack of effort to adjust her circumstances to meet her children's needs (K.S.A.2011 Supp. 38–2269[b][8] ), failure to maintain regular visitation, contact, or communication with the children or the custodian of her children (K.S.A.2011 Supp. 38–2269[c][2] ), failure to carry out a reasonable reintegration plan (K.S.A.2011 Supp. 38–2269[c][3], and failure to pay a reasonable portion of the cost of child care (K.S.A.2011 Supp. 38–2269[c] [4] ). Mother challenges the sufficiency of the evidence to support each of these findings.
The following evidence was presented to support each of the listed factors.
Social service agencies made reasonable efforts to rehabilitate the family.
The court found that reasonable efforts were made by appropriate social service agencies to rehabilitate the family. Mother, however, showed only minimal improvement over the 16 months before trial, failed to consistently follow the reintegration plan, and her compliance had even deteriorated in some areas.
Mother contends that social service agencies failed to adequately assist her in the reintegration tasks associated with her mental health. But during the termination hearing, although Mother testified that she had been diagnosed as bipolar and suffered from anxiety and panic attacks, she denied that she had any serious mental health problems that required special accommodations. She only attended 6 or 7 therapy sessions out of a possible 36 sessions. Mother acknowledges some assistance that the social service agencies provided, such as paying for a psychological evaluation and trying to guide Mother toward a reduced-fee medication program that Mother never pursued. But she claims that was not enough, and they should have done more than passively monitor her condition. She contends that they should have helped her resolve her debt with the community health center, which had to be done for her to resume her individual therapy sessions.
Mother's argument overlooks the other reasonable efforts made toward helping her complete reintegration tasks other than those focused upon her mental health. That evidence demonstrates that Mother's failure to follow through with mental health services was just one of many road blocks to the children's reintegration with Mother during the 14 months before the State moved to terminate her parental rights. So even if this court were to find that the social service agencies could have possibly done more to assist Mother in fulfilling the reintegration task of receiving individual therapy to address her mental health, such a finding would not lead to a conclusion that the efforts expended were unreasonable.
Notably, the test is not whether the social service agencies could theoretically have done more to aid Mother in completing the reintegration tasks. It is certainly easy to imagine in hindsight that more could have been done. But, as this court has aptly pointed out in the past, “[a]n agency is not required to exhaust any and all resources to rehabilitate a parent,” and proof of “a herculean effort to lead the parent through the responsibilities of the reintegration plan” is not required for a court to determine a parent unfit under K.S.A.2011 Supp. 38–2269(b)(7). In re J.R., No. 104,975, 2011 WL 2175953, at *5 (Kan.App.2011) (unpublished opinion) (citing In re B.K.S., Jr., No. 95,297, 2006 WL 2443937, at *2 [Kan.App.2006] [unpublished opinion] ).
Mother's efforts to adjust her circumstances, conduct, or conditions to meet the children's needs were insufficient.
The court found that Mother's efforts to adjust her circumstances, conduct, or conditions to meet the children's needs were insufficient. This was in part because it took Mother almost 16 months to begin to make any measureable progress; and even with that progress, the court still had serious concerns about Mother's ability to properly care for the children in the future.
Mother's challenge to the sufficiency of the evidence to support this finding is similarly tied almost exclusively to the reintegration tasks related to her mental health. She argues that in light of her young age (20 at the time of the hearing), her lack of a high school diploma, and her lack of marketable job skills, it would be “patently unfair” and “unjust” to “characterize [her] unsuccessful attempts to improve her mental health status as failures” because she could not continue individual therapy sessions without first meeting the “daunting task” of paying off her outstanding therapy bill of $786. Mother insists that nothing in K.S.A.2011 Supp. 38–2269(b)(8) can be “interpreted as imposing an absolute legal requirement that contains no element of moral fault,” and that she did not deliberately refuse to adjust her circumstances with respect to her mental health issues.
Mother at least recognizes, but attempts to downplay the fact that her mental health was not the sole basis for the district court's “serious concerns” about Mother's ability to properly care for the children in the future in finding her unfit under K.S.A.2011 Supp. 38–2269(b)(8). For example, Mother admits there were concerns with her failure to obtain appropriate housing for the children. But rather than confronting those concerns head on, Mother merely suggests more should have been done to verify the propriety of her various housing situations before she moved into the small apartment she was living in at the time of the hearing.
The district court's finding of Mother's unfitness under this factor was partially based on her “ambivalence toward her mental health treatment,” but that was not the court's only, or primary concern. Rather, the district court's findings indicate that it was particularly concerned with Mother's refusal to acknowledge that her children had exhibited the reported sexualized behaviors and Mother's indication that planned for the children to share a bedroom if they returned to her home. Mother's argument does not even speak to the sufficiency of the evidence to support these findings. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707 (2010) (noting that issues not briefed by appellant are deemed waived and abandoned).
Mother failed to maintain regular visitation, contact, or communication with the children or with the children's custodian.
Where, as here, a child is not in the physical custody of the parent, K.S.A.2011 Supp. 38–2269(c)(2) requires the district court to consider the parent's “failure to maintain regular visitation, contact or communication with the child or with the custodian of the child.” (Emphasis added.)
The court found that during the almost 16 months the children were in out-of-home placement, Mother failed to consistently maintain regular visitation, contact, or communication with the children or their custodian, which inconsistencies detrimentally impacted the children's emotional and physical well-being.
In response to this finding, Mother argues that by using the term “or,” our legislature did not “create an obligation that the parent maintain visitation, contact, or communication with both the child and the child's custodian.” (Emphasis added.) Mother then contends that she could not be found unfit under this statutory factor because she did have regular contact with the children's custodian (SRS) via her monthly contact with the case managers at KVC, which is an entity that contracts with SRS to provide foster care services for children in SRS custody. In addition, Mother argues that based on the dictionary definition of the term “regular” her visitations were regular because “[t]he evidence of record establishes that the ratio between the dates on which [Mother] visited her children to the dates on which she was scheduled to do so but didn't is nearly equal” (she missed 12 out of 25 scheduled visits) and she consistently made it to the visitations in the 3 months leading up to the termination hearing.
We reject Mother's suggestion that the regularity of a noncustodial parent's contact with a child or the child's custodian can be resolved through applying a mathematical rule of averages. Instead, we recognize that a child's safety and welfare are paramount in proceedings under the CINC code. A child's perception of time differs from an adult's, and stability must be provided in the life of a child who is removed from a parent's home. K.S.A.2011 Supp. 38–2201(b)(1), (4), and (9). The evidence was clear and convincing that even though a schedule of visitation had been arranged, Mother consistently failed to attend. She gave several reasons for missed visitation including, incarceration, transportation, and absentmindedness. This was further complicated by the fact that the children had to travel 100 miles to the visitation site, just to discover upon their arrival that Mother was not there. The trauma of this process began to become evident in the deterioration of the children's behavior before and after a scheduled visit, including defiant behavior, bed wetting, crying fits, and head banging. In addition, at a time when the goal of Mother should have been to achieve increased visitation in order to prepare her to resume full custody of her children, visitation had to be reduced to address the stress it was placing on the children.
Mother failed to carry out a reasonable plan approved by the court directed toward the integration of the children into her home.
The court found that Mother failed to carry out a reasonable plan to reintegrate the children into her home despite court-ordered extensions of the plan. It was only after the plan technically ended that she made improvements in some key areas.
Throughout the course of the CINC cases, social service agencies worked with the family toward the goal of reintegrating the children with Mother. Rhoda Schwindt, a therapist with TFI Family Services, provided therapy services to the children to help them cope with their emotional distress, behavioral problems they exhibited in adjusting to their foster care placement, and their inconsistent visitations with Mother. Aftoun Moradi, who works for KVC Behavior Health Care, served as the case manager until April 1, 2011. Moradi wrote the reintegration plan for the family after venue was transferred to Johnson County and tracked and reviewed Mother's progress on at least a monthly basis. Emily Morgan took over as the case manager for KVC in April 2011 and continued to provide services to Mother and the children. Father never made any efforts toward reintegration.
Prior to the filing of the motion to terminate parental rights, Mother made some minimal progress toward completing some of the reintegration tasks, particularly in the last few months. For example, Mother completed parenting classes, received a mental health assessment, submitted to a psychological evaluation, attended some individual therapy sessions, obtained a drug and alcohol assessment, submitted to urinalyses that were negative, and had obtained transportation.
But Mother still had many reintegration tasks that she had not completed by April 2011. Of particular concern was the fact that Mother still had not obtained secure and suitable housing for the children. During the course of the CINC proceedings, Mother mostly lived in a 3–bedroom house with 4 other people, but the month before the termination hearing she rented a small apartment. Neither living arrangement provided the separate bedrooms that Mother was told the children had to have due to inappropriate sexualized behavior that their foster mother had witnessed. Other reintegration tasks Mother had not completed included: providing verification of steady employment; establishing a workable budget; consistently attending visitations with the children; parenting appropriately when she did attend the visitations; consistently attending individual mental health therapy sessions; making necessary arrangements to obtain and maintain medication to treat her mental health; or providing verification that she had taken care of her legal issues. Also during the course of the CINC proceedings, Mother was charged, jailed, and ultimately placed on probation in at least two separate criminal cases that involved a criminal threat and possession of marijuana. Mother did not report either case to Moradi, even though her resulting incarceration caused Mother to miss two case plan meetings.
Mother failed to pay a reasonable portion of the cost of substitute physical care and maintenance based on ability to pay.
The court found that Mother is $1,447.64 in arrears on her obligation to pay monthly child support of $100 while the children were not in her physical custody. Mother does not dispute her failure to pay, rather she disputes whether there was clear and convincing evidence of her ability to pay child support. However, in the district court Mother never challenged the $100 monthly child support obligation based on an inability to pay. In fact, she testified that with her current job at Sonic she felt comfortable that she could pay her bills. She believed she could receive assistance to pay for her medical needs and those of her children. She did not mention any concerns about her child support obligation. Therefore, she is prohibited from doing so on appeal. See In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009) (Issues not raised before the trial court cannot be raised on appeal.).
Mother's conduct or condition which renders her unfit is unlikely to change in the foreseeable future.
In her second and final issue on appeal, Mother challenges the sufficiency of the evidence to support the district court's finding that Mother's conduct or condition which renders her unfit is unlikely to change in the foreseeable future. In this regard, the district court specifically found:
“While [Mother] has shown interest in having the children reintegrated into her home, she has not made sufficient progress with the reintegration plan, her minimal progress over the course of the case together with the small progress after the reintegration plan ended, and her inconsistency in seeing her children [and its concomitant detrimental effects on the children's well-being] leads this court to conclude that [Mother]'s unfitness is unlikely to change in the foreseeable future as well.”
Several important legal principles found in both the CINC statutes and caselaw guided the district court in arriving at this conclusion. First, as noted above, our legislature has declared that it is 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.2011 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, this court has noted that courts can consider a parent's past history to judicially predict the reasonable likelihood of any change in parental unfitness. In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982).
Mother's sole argument on this issue again focuses upon her mental health and the alleged failures of the social service agencies to recognize and assist her in overcoming her problems. Mother complains that “[f]or the ten months that this case was pending in the District Court of Johnson County, [she] found herself vacillating between periods of manic activity and disabling depression,” yet “she received no more assistance from her KVC case managers than monthly reminders of her need to access mental health services that she simply could not afford.” Mother then highlights those reintegration tasks that she was able to complete “[i]n spite of this situation.” According to Mother, her circumstances are similar to those of the father who had difficulties accomplishing reintegration tasks as a result of a serious head injury as discussed in this court's unpublished opinion of In re M.T., No. 96,540, 2007 WL 1597823 (Kan.App.2007) (unpublished opinion).
But it is Mother's argument, not the district court's challenged finding, that is unsupported by the evidence. Mother never objected or offered any evidence to show that she was precluded from consistently visiting the children, from providing suitable housing, or from otherwise complying with a majority of the incomplete reintegration tasks due to any debilitating mental health issues. On the contrary, Mother testified that her missed visits with the children largely resulted from transportation issues, absentmindedness, or her incarceration. She also blamed most of her failures to complete the other reintegration tasks on money problems. Perhaps most importantly, Mother testified that she did not have any serious mental health problems that required any special accommodations and that she did not find her therapy or medication particularly helpful. She testified that she understood why her position may present some concern about her ability or willingness to follow through with mental health treatment in the future.
We recognize that Mother loves her children, but notwithstanding that love she failed to demonstrate that she was able to adequately care for them now or in the foreseeable future. As we have already indicated, we are limited to determining whether the evidence relied upon by the district court supports its findings. After a complete review of the facts, and the district court's well reasoned and factually supported order, we find that termination of Mother's parental rights was supported by clear and convincing evidence. Accordingly, we affirm.
Affirmed.