Opinion
112,445.
05-15-2015
In the Interest of D.M., date of birth xx/xx/08; A.M., date of birth xx/xx/05; and J.M., date of birth xx/xx/13.
Jeffrey Leiker, of Leiker Law Office, P.A., of Overland Park, for appellant natural mother. Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Jeffrey Leiker, of Leiker Law Office, P.A., of Overland Park, for appellant natural mother.
Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mother appeals the district court's termination of her parental rights, arguing the district court's determination that she was unfit, that her unfitness was unlikely to change in the foreseeable future, and that it was in the best interests of her children to terminate her parental rights was not supported by clear and convincing evidence. Because we agree that the State failed to prove by clear and convincing evidence that Mother was unfit, we reverse the district court and remand for further proceedings.
Mother is the natural mother of A.M. (born in 2005), D.M. (born in 2008), and J.M. (born in 2013). While A.M.'s natural father is unknown, Je.M. is the natural father of D.M., and B.W. is the natural father of J.M. Neither father is part of this appeal.
Mother had been the victim of domestic violence over the years yet had been strongly opposed to prosecuting cases in which she had been the victim. In 2004, Mother began an on-again/off-again relationship with Je.M. that was, at times, violent. One such instance of domestic violence resulted in Je.M.'s arrest, conviction, and incarceration for 2 years. Mother recalled that she had been offered services for victims of domestic abuse such as Safehome, but she did not take advantage of those services because she felt they were unnecessary.
Mother gave birth to A.M. in 2005 while Je.M. was incarcerated. When Je.M. was released from prison, he and Mother resumed their relationship that again consisted of domestic abuse. In 2007, Je.M. was charged with domestic violence and criminal threats against Mother. For a second time Mother was offered services designed to help victims of domestic violence, and she again declined them as unneeded. Mother gave birth to D.M. in 2008 during Je.M.'s second incarceration. Je.M. was determined to be the father of D.M.
In 2008, following the birth of D.M., Mother began a relationship with B.W. Mother recalled that there were two domestic violence issues involving B.W. She described the first incident with B.W.: “It wasn't necessarily physical.... [H]e took my [license plate] and then I called the police because I needed to go to school. I couldn't drive my car without my tag. [B.W.] drove by and threw it at me.” In the second incident, B.W. brought guests Mother did not approve of to A.M.'s birthday party at Mother's home. As Mother recalled: “[B.W.] and his sister and I began arguing, and it just got escalated.” In 2011, following this argument, Mother and B.W. broke up. Mother filed for a protection from abuse order against B.W. after she discovered sugar in her car's gas tank, an act she attributed to B.W. The charges against B.W. in the sugar incident were eventually dropped because Mother did not show up for court.
In 2011, Je.M. began cohabitating with Mother and the children following his release from prison. There were, again, multiple instances of domestic violence between Mother and Je.M. One instance in October 2011 resulted in charges against Je.M. of aggravated robbery, felony domestic battery, possession of a firearm by a felon, criminal deprivation of property, and three counts of violation of a protection order. Mother sent a letter to the prosecutor, stating she did not want to prosecute the case against Je.M. At the termination hearing Mother explained: “[Je.M.] kept calling me from jail and trying to persuade me and asking me not to do this to him. He has been in jail so many times because of me, and basically just put a guilt trip on me.”
On November 8, 2011, Mother attempted to modify the no-contact order that had been imposed earlier between her and Je.M. The court denied Mother's request. Mother was ordered to appear for a hearing on December 2, 2011; she failed to appear. Instead, she sent a notarized letter to the Johnson County District Attorney's office, stating she would not cooperate in pursuing any changes against Je.M. A material witness warrant was issued for Mother, and she was arrested on December 2, 2011. Mother bonded out and was ordered to appear on December 20, 2011.
On December 20, 2011, a child in need of care (CINC) petition was filed on behalf of A.M. and D.M., alleging, among other things, a physical altercation between Mother and Je.M. in October 2011 and reciting the previous reports of violence between Mother and B.W. On January 12, 2012, Mother appeared in court with respect to the CINC petition and tested positive for marijuana and phencyclidine (PCP). The court issued an order of temporary custody placing A.M. and D.M. in out-of-home placement because Mother was in direct contempt of court for substance abuse concerns and paternity had not been established. The court also ordered Mother to have no contact with B .W.
Following an attempt to genetically establish paternity (the court was unable to establish paternity for A.M. but established that Je.M. was D.M.'s father), in June 2012 the court issued another order of temporary custody placing A.M. and D.M. in the custody of the Secretary of the Kansas Department of Social and Rehabilitation Services—now the Department for Children and Families (DCF)—because an emergency existed which threatened the children's safety. The children had been placed in police protective custody after being left alone in a park for over an hour, and Mother had violated the no-contact order with B.W. Mother did not contest the CINC petition, and A.M. and D.M. were adjudicated CINCs in September 2012. Mother was offered a 6–month reintegration plan.
At a review hearing in December 2012, the guardian ad litem advised the court that he felt Mother had made no progress on her reintegration goals and had violated the no-contact order with B.W.; in fact, Mother was pregnant with B.W.'s child. The district court directly reiterated to Mother that neither she nor the children were to have contact, direct or indirect, with B.W.
At the March 2013 review hearing, the court found that Mother was making progress and extended the reintegration plan. Mother gave birth to J.M. on May 16, 2013, and A.M. and D.M. were reintegrated with Mother later that month. As a condition of reintegration, Mother and the children were to have no further contact with B.W.
On August 6, 2013, A.M. and D.M. were removed from Mother's home following a therapy appointment in which A.M. told the therapist that B.W. was living in the home. Two days later, Mother surrendered J.M. to DCF. On August 27, 2013, Mother entered a no-contest statement that J.M. was a CINC. On September 17, 2013, the State filed an amended petition alleging J.M. was a CINC and asked for termination of Mother's and B.W.'s parental rights to J.M.; the State also filed a motion to terminate parental rights to A.M. and D.M.
The termination hearing was held in June 2014. Mother admitted the CINC case was predicated on her violation of a no-contact order with B.W., and she testified that in December 2011 she attended individual therapy at the Wyandotte County Medical Health Center to try to break the cycle of domestic violence. She completed a Safehouse domestic violence class in March 2013.
Mother testified at the termination hearing that she stopped using drugs following her January 2012 court appearance. However, Mother also admitted she had resumed a romantic and sexual relationship with B.W. and “violated the no contact order periodically through 2012 because I found out I was pregnant in October of 2012.”
Specifically, Mother testified she had contact with B.W. shortly after the birth of J.M.:
“I had a C-section and was on maternity leave for eight weeks. I didn't have any income. I was struggling to come up—I had just moved into my house. I was struggling to come up with June's rent, and [B.W.] offered to pay my rent and make my car payment and buy groceries for the house because I had absolutely no money.”
B.W. wanted to be in J.M.'s life and eventually moved in with Mother and her children.
Mother testified that she did not understand why the no-contact order was issued because B.W. had never been physical or violent with her, but she knew she was putting her relationship with A.M. and D.M. in jeopardy by seeing B.W. Mother did not regard her contact with B.W. as wrong until her children were removed from her home.
After A.M., D.M., and J.M. were removed, Mother continued with the case plan goals of having stable housing, working utilities, a vehicle, car insurance, and valid driver's license. She had weekly visits with the children, and she voluntarily attended both individual psychotherapy and, when she could not afford individual sessions, group therapy through Safehouse. She admitted she had issues stemming from being the victim of molestation as a child and rape as a teenager. Mother testified she believed she had made excellent strides to better herself and figure out what was causing her behaviors. At the termination hearing, Mother testified she was able to provide a proper home environment and parenting skills for the children.
Je.M. and two KVC workers also testified. Following the hearing, the district judge took the case under advisement. On July 29, 2014, the district judge issued her order terminating the parental rights of Mother, Je.M., and B.W.
Mother timely appeals.
Did Clear and Convincing Evidence Support Termination of Mother's Parental Rights?
If a child is adjudicated a child in need of care, parental rights may be terminated “when the court finds 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.” K.S.A.2014 Supp. 38–2269(a). The Revised Kansas Code for Care of Children, K.S.A.2014 Supp. 38–2201 et seq ., lists a number of nonexclusive factors the district court must consider in determining a parent's unfitness. See K.S.A.2014 Supp. 38–2269(b) and (c). Any one of the factors “may, but does not necessarily, establish grounds” for terminating a parent's rights. K.S.A.2014 Supp. 38–2269(f). The district court is not limited only to the statutory factors in making a determination of unfitness. K.S.A.2014 Supp. 38–2269(b).
When reviewing a district court's findings on unfitness, our standard of review is clear: The district court's findings must be supported by clear and convincing evidence. K.S.A.2014 Supp. 38–2269(a). We determine whether such evidence could have convinced a rational factfinder such facts were highly probable by clear and convincing evidence when viewed in the light most favorable to the State. See In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In making this determination, we do “not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.” 286 Kan. at 705.
The district court applied the following factors in determining Mother was unfit:
K.S.A.2014 Supp. 38–2269(b)(4)—physical, mental, or emotional abuse or neglect, or sexual abuse of the children
Mother argues that the record is void of any indication that her relationship with B.W. resulted in the emotional abuse of her children. Rather, Mother argues the court incorrectly inferred the children must have been abused because Mother should have known contact with B.W. would lead to another removal.
The State counters that the children were in the home where abuse took place, sufficiently establishing the requisite physical or emotional abuse or neglect and clear and convincing evidence of neglect because the children were placed in police protective custody after being left alone in a park for over an hour. The State cites In re A.H., 50 Kan.App.2d 945, 950–51, 334 P.3d 339 (2014), in which another panel of this court held that a sibling of a child determined to be a CINC may also be determined to be a CINC pursuant to K.S.A.2013 Supp. 38–2202(d)(11) :
“Concerns about children residing in abusive homes are not new.... Our court has held: ‘If the trial court observes abuse of one child, the judge should not be forced to refrain from taking action until the next child suffers injury. [Citations omitted.]’ In re A.B., 12 Kan.App.2d 391, 392, 746 P.2d 96 (1987). Young bodies cannot withstand many savage blows; young psyches, even fewer.”
CINC and termination of parental rights determinations are two different adjudications. The State is correct in that K.S.A.2014 Supp. 38–2202(d)(11) indicates a public policy in Kansas that children residing in a home with a sibling or another person under the age of 18 who is the victim of abuse require the same protections as the victim. In re A.H., 50 Kan.App.2d at 946 (“The public policy of this state is found in K.S.A.2013 Supp. 38–2202(d)(11), which states that the definition of a child in need of care includes a child who ‘has been residing in the same residence with a sibling ... who has been physically, mentally or emotionally abused or neglected, or sexually abused.’ ”). However, we have no evidence in the record in this case to indicate that any of the children were themselves abused by Mother or B.W. Additionally, In re A.H. is inapplicable because it only establishes a court's ability to take action regarding a second child when the first child who resides with the second child has been subject to abuse; In re A.H. does not apply when the children reside in the same home as an abused parent. Further invalidating In re A.H.'s applicability is that there is no direct evidence on the record that Mother was abused by B.W. in view of the children.
The district court found that Mother continuously violated the no-contact order with B.W., that she knew she was violating the order, and that she knew or should have known that her continued involvement with B.W. would result in the removal of her children, thereby neglecting their emotional health and needs. More is required because there is no evidence equating Mother's violation of the no-contact order with abuse of the children.
With respect to the incident in which A.M. and D.M. were left unattended in a park for over an hour, this event obviously displays poor judgment on the part of Mother. However, a single documented instance of bad judgment is not sufficient, under the clear and convincing standard, to persuade us to terminate Mother's parental rights forever. Thus, the evidence, when viewed in the light most favorable to the State, does not indicate the district court had sufficient support from the information in the record to determine that Mother was unfit pursuant to K.S.A.2014 Supp. 38–2269(b)(4).
K.S.A.2014 Supp. 38–2269(b)(7)—failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family
Mother argues that the district court lacked clear and convincing evidence to find her unfit under this factor because the record contained no indication that Mother was unfit when in contact with B .W. Mother also cites testimony from two KVC workers who stated Mother was a fit parent if she stayed out of contact with B.W. The State counters that Mother was repeatedly offered services to break the domestic violence cycle in 2004, 2007, and 2011; yet Mother only accepted such assistance in 2013 while continuing to remain in contact with B.W.
The district court found that both DCCCA and KVC had provided reasonable and ongoing services and efforts but those efforts were unable to rehabilitate the family. The court emphasized that Mother's continued involvement with B.W. and her refusal to comply with the direct court order designed to protect Mother as well as the children showed lack of effort and insight on her part to adjust her circumstances, conduct, and conditions to meet her children's needs. Further, this failure to adjust her circumstances was not only based on the length of the cases, two of which began in 2012, but on Mother's 10–year history as the victim of repeated domestic violence.
We reiterate there is no direct evidence in the record that B.W. was abusive to Mother. While B.W.'s behavior was by no means perfect, there is no indication from Mother or the children that he was physically abusive. It is true that Mother refused help from the State regarding her issues with being a domestic violence victim, but it appears from the evidence in the record that she was not a victim of domestic violence while with B.W. It would appear, aside from Mother's involvement with B.W. in violation of a nocontact order, the agency efforts to rehabilitate the family had been successful. Thus, there was insufficient evidence on the record for the district court to determine Mother was unfit under K.S.A.2014 Supp. 38–2269(b)(7).
K.S.A.2014 Supp. 38–2269(b)(8)—lack of effort on Mother's part to adjust her circumstances, conduct, or conditions to meet the needs of the children
Mother emphasizes her 6 months of stability and compliance leading up to the termination hearing. The State responds that the record supports the district court's findings because Mother continuously violated the no-contact order in the case, even lying about her involvement with B.W. while her children were still living in her home.
The district court found that Mother's continued involvement with B.W. and her refusal to comply with the court order designed to protect her and her children showed a lack of effort and insight on her part to adjust her circumstances, conduct, and conditions to meet the needs of her children.
Two agency workers testified that Mother was a fit parent so long as she was not around B.W. However, as already discussed, the evidence establishing B.W.'s presence as detrimental to Mother and her children is not strong enough to use her relationship with him as a proxy for a finding of unfitness under this factor. As is the case with the other factors, more is required. Thus, there was insufficient evidence for the district court to find that Mother was unfit under this factor.
K.S.A.2014 Supp. 38–2269(c)(1)—failure to assure care of the children in the parental home when able to do so
Mother argues that this factor does not weigh in favor of a finding that she is an unfit parent because there was no evidence in the record that her children were not cared for appropriately at any time during Mother's time with B.W. The State counters that Mother ignores the instance in which her children were placed in temporary police custody after being found unattended in a public park. Moreover, she also ignores that she violated the no-contact order with B.W., which placed her children in ongoing, potentially harmful situations.
The district court found that because emergency hearings had to be held and the older children were twice removed from Mother's home because she continued to willfully violate the no-contact order with B.W., her actions and lack of veracity demonstrated her failure to assure the care of the children in her home when able to do so.
We reiterate that while there is certainly evidence in the record establishing that mother and B.W. quarreled, the record does not establish that B.W. was physically abusive. Additionally, as stated, the park incident appears to be an isolated instance of poor judgment on the part of Mother that is not severe enough to warrant a termination of her parental rights. As with the other factors, when viewed in the light most favorable to the State, there was insufficient evidence in the record for the district court to find Mother unfit.
The district judge stated the difficulty she had was that she had trusted Mother not just once but over and over, only to be lied to again and again with respect to Mother's involvement with B.W. For the district court, this combined with Mother's history of domestic abuse supported its finding that Mother was unfit and such unfitness was unlikely to change in the foreseeable future.
We share the district court's frustration with parents who ignore court orders, and perhaps the district court should have instituted contempt proceedings again Mother for her disobedience. However, viewing the evidence on the record, this appears to be the primary basis for the district court's decision to find Mother unfit. Had the evidence directly established that B.W. was abusive toward Mother or the children, our decision would be different. However, under these facts more is required before it is appropriate to terminate Mother's parental rights forever.
Reversed and remanded for further proceedings consistent with this opinion.