Opinion
112,345.
05-15-2015
In the Interest of J.T.J., YOB 2009, a Female.
Andy Vinduska, of Manhattan, for appellant natural mother. Bethany C. Fields, deputy county attorney, and Barry Wilkerson, county attorney, for appellee.
Andy Vinduska, of Manhattan, for appellant natural mother.
Bethany C. Fields, deputy county attorney, and Barry Wilkerson, county attorney, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, I, and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
POWELL, J.
Mother appeals the district court's order terminating her parental rights to J.T.J., by raising three allegations of error: (1) The chief judge of the judicial district erred in not granting her request to have a different judge hear the termination proceedings; (2) there was insufficient evidence to support the court's unfitness finding; and (3) the court abused its discretion in terminating her parental rights. J.T.J.'s natural father, who has not been involved in J.T.J.'s life, voluntarily relinquished his rights during the course of the case and is not part of this appeal. Because we find: (1) The chief judge acted lawfully in appointing the magistrate judge who had heard all prior proceedings as the district judge pro tem to hear the termination proceeding; (2) there was sufficient evidence to support the district court's unfitness finding; and (3) the district court did not abuse its discretion in terminating Mother's parental rights, we affirm.
Factual and Procedural History
On April 7, 2011, while investigating a financial crime, law enforcement contacted the suspect, R.S., and noted he was behaving in a manner consistent with someone who was under the influence of drugs. A K–9 unit sniffed the exterior of the vehicle R.S. had been driving and alerted to the odor of narcotics. A subsequent search of the vehicle uncovered methamphetamine. Mother and 18–month–old J.T.J. were passengers in the vehicle. Mother also appeared to be under the influence and admitted she had taken some of her mother's oxycodone. Mother had a fresh and inflamed needle mark on her arm but claimed the mark was the result of a recent plasma donation. J.T.J. was in a car seat in the rear of the vehicle. She was soiled and dirty, had a bruise on her forehead, and had a laceration on her ear. Mother did not have any supplies for changing J.T.J.'s diaper. R.S. and Mother were arrested, and J.T.J. was taken into protective custody. While Mother was initially charged with possession of methamphetamine, possession of paraphernalia, and endangering a child, the charges were later dismissed.
Based on these events, the State filed a petition just 4 days later, alleging J.T.J. was a child in need of care (CINC). The petition specifically noted that R.S. had an extensive history of violent crime and that J.T.J.'s older sister was also the subject of a CINC case. The court granted the State's application for an ex parte order of protective custody that same day and subsequently placed J.T.J. into the custody of the Secretary of Social and Rehabilitative Services (SRS), now known as the Department for Children and Families (DCF). J.T.J. was placed with her maternal grandmother (Grandmother).
On May 31, 2011, the court adjudicated J.T.J. a child in need of care. The initial case plan called for Mother to submit to random urinalysis (UA) tests, take a drug and alcohol assessment and follow all recommendations, maintain stable housing, undergo a mental health evaluation and follow all recommendations, keep TFI Family Services (TFI) informed about her criminal case, maintain financial stability, take parenting classes, submit to a hair follicle test, and attend drug and alcohol information school.
The district court conducted a disposition hearing on June 22, 2011, and at the conclusion of the hearing, for the first time, ordered that neither J.T.J. nor Mother have contact with R.S.; Grandmother was allowed contact with R.S. only if J.T.J. was not present. The court also gave TFI the authority to increase visits between Mother and J.T.J. and to monitor and limit those visits. As Mother had not submitted to the previously ordered hair follicle test, she was given 7 days to do so.
Traci Booth, the initial TFI case manager, indicated she received no contact from Mother from June 2011 through much of September 2011. When she did reach her, Mother was unemployed, living with friends, and having inconsistent visits with J.T.J. At the October 2011 review hearing, the court again ordered Mother to undergo a mental health evaluation and to follow all recommendations. Booth was largely unable to reach Mother again until late December, at which time Mother informed Booth she had gotten a job at Wal–Mart and was still staying with random friends.
Contact with Mother improved in 2012, and visitations with J.T.J. were increased to 3 hours per week. Mother purchased a trailer in March 2012, and Booth's walkthrough of the trailer found no safety concerns. Mother also indicated she had scheduled her mental health evaluation and had started parenting classes. Booth scheduled a parenting evaluation for Mother, and she dropped in on Mother's home when she was unable to reach her by phone to give her the appointment information. Safety concerns, such as clutter and metal scraps on the front porch, were noted. J.T.J. was there with Mother at the time, even though home visits had not yet been approved. Booth spotted a lighter, cigarette butts, and various tools within J.T.J.'s reach, but when Booth returned with a camera to document the conditions, Mother and J.T.J. were gone. A later home visit to Mother's trailer revealed other safety concerns, including dog droppings on the porch.
Following the March 2012 permanency hearing, the court found Mother's progress toward reintegration had been adequate, noting that she had set up her mental health evaluation, was taking parenting classes, had been working at Wal–Mart since November 2011, was purchasing a mobile home, and was visiting J.T.J. The court authorized Grandmother and Mother to take J.T.J. to Illinois to visit J.T.J.'s older sister. It also made specific requests for information from Mother's mental health evaluation, including Mother's ability to parent J.T.J., her ability to learn to be a better parent, her ability to maintain a stable home and income and provide a healthy environment for J.T.J., and her ability to have age-appropriate expectations of J.T.J.'s development.
An April 2012 home visit revealed a clean and uncluttered home, and Mother's visits with J.T.J. were increased to 5–hour visits twice a week. At this time, Booth asked Mother to keep a log of the visits, discussed parenting classes with Mother, and gave Mother contact information for Parents as Teachers. Mother, however, indicated she did not feel she needed help parenting. Following a May 2012 home visit, Booth agreed to allow J.T.J. to have overnight visits with Mother. Another TFI worker did a home visit in July 2012 and noted a lot of clutter and disarray around the home, including a missing deadbolt on the front door. At a follow-up visit on a day when Mother was not home, the worker found the deadbolt lock had been replaced and the clutter outside had been cleaned up.
Booth became concerned, however, when Mother called her office on August 8, 2012, and the caller ID indicated the call was coming from R.S. Booth tried to drop in on Mother's home that day, but no one answered the door. She then went to Grandmother's house and asked about R.S. Grandmother indicated that R.S. was in Nebraska and they had used his social security number without his permission to get telephone service for Mother.
Booth attempted another drop-in visit on August 9, 2012. Booth heard a man and a woman talking in the trailer, but initially no one answered the door. Eventually, Mother answered and asked Booth and the other TFI workers to come back later because she had just gotten groceries. Booth told her this was a drop in, not a scheduled visit, so Mother asked them to wait a minute and shut the door. Fifteen or 20 minutes later, when Mother still had not let them, Booth became concerned because she did not know if J.T.J. was in the home. She tried to call Grandmother to find out but then called the police to check on J.T.J.'s welfare.
Officer Daniel Costlow responded to the call and entered the trailer to check for J.T.J. with Mother's permission. Costlow found that J.T.J. was not in the trailer but R.S. was, despite Mother's denials. Costlow confirmed to Booth that R.S. lived at the trailer, as he had been there on other calls. He advised the TFI workers not to enter the trailer due to R.S.'s demeanor, so the TFI workers decided to leave. Given Booth's uncertainty about whether Mother and Grandmother were allowing J.T.J. to be around R.S., Booth placed J.T.J. in respite care.
Mother wrote a letter to the court a week before the August 2012 review hearing, requesting a new attorney and a change of venue due to bias following the incident with R.S. The court continued the hearing, but ordered Mother's and Grandmother's visits with J.T.J. to be supervised. The court also issued a restraining order against R.S., ordering that he have no contact with J.T.J., Mother, or Grandmother.
At the September 2012 review hearing, the court denied Mother's request to appoint a new attorney but advised she could hire an attorney on her own. It also denied her requests for a jury trial and for a change of venue. After hearing testimony and reviewing Mother's parenting evaluation, the court found that Mother would need help raising J.T.J. and such help would likely come from Grandmother. It also ordered Mother to make herself available to the agency by giving TFI her work schedule and phone number, by answering her phone, by letting TFI know when she was leaving town, and by letting TFI into her home for inspections. Mother and Grandmother were also ordered to be honest with the agency and to have visits separately. Although Mother's visits were ordered to increase in duration and frequency, J.T.J. was to remain in out-of-home placement, and the court continued its no contact orders regarding R.S. Significantly, over the next couple of months, the court subsequently authorized Mother to have unsupervised visits with J.T.J., which it later increased, and even allowed overnight visits.
Jacob Pitts took over as case manager after Booth left TFI and indicated he met with Mother on November 27, 2012, because he had received a tip that Mother and R.S. had married, which was confirmed by the Shawnee County District Court. Mother denied the marriage at first but then admitted she had married R.S., claiming he wanted her to have his military death benefits because he had been diagnosed with lung cancer. The no contact order with R.S. was still in place, but Mother claimed she did not understand why the court thought R.S. was a bad influence on her and J.T.J. Despite this development, the court continued to order unsupervised visits by J.T .J. with Mother, including overnight visits.
Things went so well that Pitts met with Mother in February 2013 and discussed finding a daycare for J.T.J., which he felt was the final step that needed to occur before reintegration. At the February 2013 permanency hearing, the court found that efforts toward reintegration were adequate, noting that Mother was in a new and appropriate home, had maintained her employment, and was working with TFI. The court ordered the agency to report concerns immediately and repeated its order that R.S. have no contact with J.T.J., adding that he was not to be in Mother's home and ordering his name removed from Mother's mailbox.
On March 3, 2013, J.T.J.'s foster mother took J.T.J. to the police to report a possible child abuse incident. The investigating detective testified that J.T.J. had a large bruise on the right side of her face that the foster mother discovered when she noticed J.T.J. had makeup on her face shortly after Mother dropped her off after a visit. J.T.J. also had a scratch on the left side of her face. When the detective interviewed J.T.J. about the incident 5 days later, J.T.J. said that her mommy did it, but she would not say any more about it. The foster mother also said that J.T.J. told her mommy did it.
The detective spoke to Mother, who explained that on March 1, she had picked up J.T.J. and they were walking in the cold when a stranger offered them a ride, and she accepted. The stranger did not have a car seat for J.T.J. Mother had then taken J.T.J. to Wal–Mart, and the two had been playing around between the racks in the baby section of the store. Mother explained that J.T.J. came at her, and Mother had stepped away, causing J.T.J. to fall and hit her face on a clothing rack. Mother said this had occurred between 1:30 and 3:30 p.m. that day, but the detective could not find them on the store's surveillance videos during that time.
Mother explained that after J.T.J. fell, she went to find a silver spoon, which apparently was some sort of home remedy for swelling, and she went to the pharmacy to find an ice pack and Epsom salts. Mother claimed that Epsom salts help with bruising, but the detective had never heard of such a treatment. Mother cried when the detective asked her about the makeup and claimed that she was scared and stressed out from putting up with TFI for 2 years. Mother said she did not tell the foster mother about the bruise when she dropped off J.T.J. because she needed to get to work. Ultimately, the detective found no evidence that Mother intentionally caused the bruise and did not feel a crime had been committed.
Pitts spoke on the phone with Mother about this incident on March 4, 2013. Mother gave three separate accounts of what had happened to cause J.T.J.'s bruise, none of which were the same as what she later told the detective. Mother initially said she did not apply anything to the bruise, but she later said she had put Neosporin on it. When Pitts said that Neosporin was not used for swelling or bruises, Mother then said she had put some “putty” stuff on it. Pitts questioned her shifting recollections, prompting Mother to yell incoherently at him before hanging up on him. At some later point, Mother admitted to Pitts that she had put makeup on the bruise because school pictures were coming up.
Pitts visited J.T.J. at school that same day and saw the bruise and the scratch. He asked J.T.J. how she got the scratch, and she said, “baby kitty,” likely meaning the kitten at Mother's house. Pitts then asked if baby kitty caused the bruise, and J.T.J. said, “[N]o, Mommy did it.” When asked again if Mommy caused the scratch, J.T.J. said, “baby kitty.”
Visits between J.T.J. and Mother were stopped during the investigation; thereafter, visits were supervised. By this point, Mother's story about what happened at Wal–Mart matched the story she told the detective.
On April 26, 2013, Mother wrote the court another letter again requesting a new appointed attorney, claiming her attorney had been insulting her. At the April 2013 review hearing, the court appeared to reverse course, expressing the view that reintegration might not be viable. TFI's authority to place J.T.J. at the home was rescinded, and TFI was ordered to supervise Mother's visits. The permanency hearing set for May was continued so that a new attorney could be appointed for Mother.
Although the record is unclear, it appears St. Francis Community Services (SFCS) took over for TFI around June or July 2013, and Katie Kittell, a SFCS case manager, took over Mother's case after Pitts left. She testified that after the June 18, 2013, permanency hearing, she became aware that reintegration was no longer an option, and visitation between Mother and J.T.J. was reduced.
At the July 2013 permanency hearing, the court heard evidence and found: (1) Mother's parenting skills had not improved for more than 2 years despite numerous services aimed at that goal; (2) Mother refused to follow recommendations that would assist her in reaching financial stability, which was key to her ability to maintain a stable home for J.T.J.; (3) Mother either did not or could not understand J.T.J.'s developmental needs and the treatment and programs necessary to help J.T.J. develop to her full potential; (4) based on testimony from numerous professionals, as well as the foster parents, J.T.J. was happier, spoke better, and progressed with potty training during the month she did not see Mother; and (5) over time, Mother's judgment as to how to protect and provide a safe environment for J.T.J. was flawed or lacking. Thereafter, the court determined that reintegration was no longer a viable option and ordered the State to file a motion to terminate Mother's parental rights.
The State filed that motion on October 29, 2013, asking the court to find Mother was unfit based on K.S.A.2013 Supp. 38–2269(b)(1), (2), (4), (7), and (8), and K.S.A.2013 Supp. 38–2269(c)(1), (2), and (3). The State also alleged that Mother should be found presumptively unfit under K.S.A.2013 Supp. 38–2271(a)(6).
Until this point all proceedings in the case had been heard by a magistrate judge. On January 3, 2014, Mother's new attorney moved the court to reassign the termination hearing to a district judge, pursuant to K.S.A.2013 Supp. 38–2267(a) and K.S.A.2013 Supp. 20–302b(e). The chief judge appointed the magistrate judge who had overseen the case as a district judge pro tem and assigned her the case. The termination hearing was conducted over the course of 5 days in March, April, and May 2014.
Camelia Owens, a DCF child protective services worker, testified she met with and interviewed Mother in jail on April 11, 2011. Mother denied using drugs initially but later admitted that she had used methamphetamine 2 weeks earlier. Owens had met with Mother at her home on April 1, 2011, prior to Mother's arrest, at the request of the Sheriff due to the condition of her home. Mother had been utilizing family preservation services for nearly a year and was slated to be done with those services on April 21, 2011. During the visit, Mother agreed to extend family preservation services for another year and to do more intensive work. Owens testified about multiple abuse and neglect allegations concerning Mother's other daughter, A.R., going back to 2000. In January 2010, there were allegations of neglect and concerns about the condition of the home when A.R. and J.T.J. were both living there. In April 2010, a CINC case was initiated concerning A.R., who was placed with her father, and family preservation services were started. Following her investigation of the instant case, Owens recommended that SRS take custody of J.T.J. and place her with Grandmother, and she recommended supervised visits with Mother and a drug and alcohol evaluation of Mother.
Booth testified about her involvement in this case from April 2011 through August 2012. She testified that Mother never had a positive UA during her time on the case and Mother attended drug and alcohol information school as ordered on July 16, 2011. Mother received funds to help with utilities and rent deposits, but Mother was unable to get section 8 or public housing through the housing authority. Mother indicated to Booth that she wanted to move into a two- or three-bedroom home that would allow a dog, even though Booth advised her that she could realistically only afford a one-bedroom home given her income.
Booth also testified that R.S. was not allowed to be around J.T.J. by both court order and DCF policy due to his criminal background. She met with him on June 8, 2011, and again in the presence of Grandmother on June 16, 2011, to explain that he was to have no contact with J.T.J. Booth developed a safety plan, which was signed by Mother and Grandmother, indicating J.T.J. was not to be around individuals with criminal backgrounds and forbidding R.S. from being in Mother's or Grandmother's homes.
Tony Kubina, a psychologist at Mercy Regional Hospital, performed Mother's parenting evaluation on April 2, 2012. He observed Mother's interactions with J.T.J. and saw a healthy parent-child connection, with Mother educating J.T.J. and acting quickly to protect her when something happened that could have hurt J.T.J. He reported that Mother felt J.T.J.'s development was that of a normal 4–year–old or in fact much higher than that.
Kubina's testing showed that J.T.J. had emotional overreactions to change, and her mood score showed that she was distressed at being away from Mother and in an unstable environment. Mother scored low in health and competence, and Kubina noted that she denied or minimized issues in her life, she was not psychologically healthy due to her life stress, and she felt that she was being personally attacked. Mother lacked practical child development knowledge, but Kubina noted that she was going through parenting training and she had applied those techniques during her interview.
It was Kubina's opinion that Mother had average intelligence as to life skills but lacked child management skills. For example, he felt that Mother may struggle to have realistic expectations of J.T.J. at different developmental stages, and he thought more parenting classes would help because Mother could potentially become overwhelmed. He also had some concerns about Mother's ability to provide for the health and safety of J.T.J.
Chris Grosnick, a speech language pathologist at the Infant Toddler Program, testified that testing of J.T.J. showed developmental delays in her fine motor and cognitive areas. She also had some delayed speech, but that improved as he worked with her. One of his coworkers, a physical therapist, recommended that J .T.J. get orthotics because her feet were turned in and she fell a lot. By March 2012, J.T.J. was doing well with the orthotics and was falling less. A speech language evaluation of J.T.J. in May 2012 showed a low average result in auditory comprehension and expressive language skills. Grosnick testified that most of his visits occurred with J.T.J. and Grandmother, but Mother came to two or three of the meetings and asked questions. He said that Mother was not opposed to J.T.J. receiving these services.
Macie Frey, an early childhood special education teacher, worked with J.T.J. on cognitive and social emotional skills and monitored her speech communication. She said J.T.J. had progressed well in her first 2 years of preschool but was still delayed. She felt J.T.J. would struggle when she entered kindergarten but believed continuation of special preschool would help. Frey also testified that Mother had come to all meetings, a play, and parties at the preschool. Mother did not feel that J.T.J. was delayed at the beginning of the program, and Frey felt that Mother still did not understand J.T.J.'s delays.
Frey noted two incidents with Mother that concerned her. The first was in February 2013, when Mother came to pick up J.T.J. and appeared to be really out of it. She later found out that Mother was very sick that day. The second occurred when Mother walked J.T.J. to preschool in the freezing cold, although someone had stopped and given them a ride. J.T.J. was shaking and had to be held in blankets for some time to warm her up. Frey said that Mother could have arranged for transportation that day, but she did not.
Pitts testified that Mother had an unrealistic view of J.T.J.'s educational needs and how to meet them. Mother expressed that she did not think J.T.J. needed special education, although she was not unwilling to participate in the special education program for J.T.J. Pitts also testified that Mother was confused about why J.T.J. was in DCF custody, but when Pitts tried to explain, Mother interrupted him several times. She said the budget was not helping her, and she was unsatisfied with TFI because they were not helping her with money, although Pitts noted that TFI had helped her with money in the past. Mother indicated she had begun to pursue bankruptcy. Pitts felt Mother was not historically able to respond to J.T.J.'s needs. He did not believe Mother could sustain long-term stability and thought it was in J.T.J.'s best interests to explore termination.
Kittell testified that Mother had not shown or had cancelled sessions with Parents as Teachers on five occasions between June 27, 2012, and February 12, 2013. Mother had no positive UAs during this case but had failed to appear 7 times in 2011 and provided an insufficient sample in December 2012. Mother never had any mental health services beyond the parenting evaluation. Mother was not current on her rent, and Mother's landlord informed her that he would not be renewing Mother's lease.
Kittell dropped in on Mother's new apartment three times, and she had concerns about the conditions of the exterior and common areas of the home. She also noted that Mother's apartment was cluttered and dirty, smelled of mildew, and posed fire hazards between a paper plate that was sitting on an open flame stove and a jumble of plugged-in cords in the bedroom. Mother was still employed at Wal–Mart, but she also still seemed to be struggling to maintain a budget. Notably, while Mother was behind on rent, she continued to buy clothes, toys, and brand name shoes for J.T.J.
Kittell had difficulty getting Mother to provide copies of her work schedule, her school schedule, and her lease. During a meeting with Mother in September 2013, Kittell recommended changing visitation to a longer visit once per week to help J.T.J. with her transition stress, which was manifesting through J.T.J. acting out and having bathroom accidents on visitation days. Mother opted to keep the visitation schedule the way it was. When Mother was asked to sign a medical consent form and return it to St. Francis as soon as possible, Mother took a week to get it done.
Kittell testified that Mother still seemed to believe that J.T.J. was exceeding her grade level and did not need extra educational help. She noted that Mother did not interact with J.T.J. at an age-appropriate level. Mother and Grandmother also had begun making inappropriate comments to J.T.J., such as telling her not to listen to the “mean lady” (referring to a case worker), talking about the CINC case in front of J.T.J., and threatening to call the governor about TFI's “emotional abuse” in front of J.T.J.
Kittell seemed most concerned with Mother's dishonesty throughout this case, including the incidents with R.S. and the bruise, as well as Mother's claims about being offered a promotion at Wal–Mart, when in reality she was merely told she could apply. Mother was still married to R.S. and still did not understand why the no contact order was in place. Mother also felt that she should be allowed to have J.T.J. back because the criminal charges that started this entire matter had been dropped.
When Kittell observed visits between Mother and J.T.J., she noted that Mother spent a lot of time watching videos or playing on a tablet with J.T.J., not enforcing good eating habits with J.T.J., and delaying the end of visits to the point where the court had to order visits to end on time. Mother also asked 4–year–old J.T.J. to read the instructions for building a gingerbread house during a visit even though J.T.J. was too young to read. Kittell observed that Mother did not know how to handle J.T.J.'s moods and provided no structure at visits.
Kittell testified that Mother had failed to acknowledge there was a reason J.T.J. was in custody and had not acknowledged the need to change her behaviors and fully comply with case plan tasks. Kittell recommended that the court find Mother unfit and terminate her parental rights.
Tyler Wilson, a supervisor of Mother's at Wal–Mart, testified that Mother had no attendance issues at work, was a competent employee, was moving up in her pay grade, and was juggling work and school well while taking on more responsibility at Wal–Mart. Debra Nelson, another supervisor at Wal–Mart, testified that she was satisfied with Mother's work, that Mother kept her department safe, and that Mother followed WalMart's safety protocol. She also testified that Mother told her J.T.J. had run into a rack when she got bruised at Wal–Mart.
Ranae Martin, a coworker of Mother's at Wal–Mart, testified she saw Mother and J.T.J. together two or three times, and she did not see Mother engage in any risky behaviors. She said that Mother was attentive to J.T.J. even when talking to Martin and that Mother was focused on getting J.T.J. back home.
David Yocum, director of Bellus Academy, testified that Mother had enrolled at the academy for training in aesthetics and makeup artistry. Mother had graduated on April 16, 2014, with a good attendance rate and without any client complaints. He noted that Mother had State exams coming up for her licensure and had passed the practice exams. Yocum stated Mother's tuition had been partially funded through Title IV and that Mother was making payments on the rest of her tuition through a payment plan. He felt Mother would do well in this field in the real world.
Grandmother testified R.S. was never around J.T.J. or Mother prior to Mother purchasing the trailer. After that, R.S. was present when J.T.J. was there, but Grandmother supervised. Grandmother testified about her friendship with R.S. and acknowledged he had been in prison for serious offenses, but she believed it was safe for him to be around J.T.J. because his crimes did not involve children. She admitted she knew Mother and R.S. were living together, and she also admitted she knew the court had ordered that Mother and J.T.J. were not to have any contact with R.S.
Grandmother said R.S. was persistent about staying with Mother, and Grandmother tried to get Mother to stay away from R.S. for the sake of getting J.T.J. back. She noted R.S. was back in prison, and she said he had moved out after the August 2012 incident when TFI discovered he was living with Mother. Grandmother claimed she did not know Mother and R.S. had gotten married. She also testified she and Mother had R.S.'s permission to use his social security number to get phone service for Mother.
Grandmother felt that Mother was more level-headed now that she was working, and she had not seen anything since this case started to concern her about J.T.J.'s safety. Grandmother claimed Mother required J.T.J. to help clean up and eat at the table and that Mother interacted well with J.T.J. during the visits Grandmother supervised. It was Grandmother's opinion that Mother could properly care for J.T.J. If J.T.J. could not be reintegrated with Mother, Grandmother would like to be J.T.J.'s permanent guardian.
Mother testified that on the day of her arrest she and R.S. were just making a quick trip, so she did not take a diaper bag. She admitted to using drugs once in February 2011 but said she did not have a problem with drugs.
Mother admitted R.S. had lived with her at the trailer despite the no contact order. She claimed she tried to get R.S. to move out for the sake of J.T.J., but he was very persistent and controlling. Mother claimed she agreed to marry R.S. because he promised to leave if she married him. She did not ask friends, family, or law enforcement for help getting him to leave. She claimed that R.S. was never with her when she had J.T.J. Mother understood the agency was concerned with R.S.'s violent past, but she said that if she ever had concerns, she would remove J.T.J. from his presence.
Mother felt she had become a stronger person since the August 2012 incident with TFI and R.S. She said R.S. went to jail in October 2012, and she claimed she had not had contact with him since then, other than one time in January 2014 to discuss getting divorced. It came out during her testimony, however, that Grandmother and Mother had both applied to be on R.S.'s inmate list at the prison, both had visited him approximately monthly, R.S. had called Mother from prison, and Mother had emailed him at prison. Prison records showed Mother last visited R.S. in March 2014, and she claimed that was the visit when she discussed divorce with him. Prison records also showed that J.T.J. was on R.S.'s visitor list, though Mother claims she did not sign up J.T.J. for visits. At one point Mother acknowledged that she knew she was not to have contact with R.S., but later she claimed she thought the court lifted that order as to her.
Mother testified that she guessed she understood why the agency and the court were concerned about R.S. being around J.T.J. and noted that although he had a bad criminal history, he had never been violent to her. She seemed to be confused about the court's no contact order, and she testified that TFI tried to get her to sign some paperwork but she refused. Though that part of her testimony is unclear, it seems that she thought she had to agree to the no contact order by signing something, which was not the case. She claimed that, in the future, she would check new people out online for the safety of J.T.J., but she later said checking them out was not necessary so long as you watch their behaviors and look for “awkwardness” from strange people.
Mother acknowledged she was behind on her rent, but she said her landlord was not evicting her, she was still working, and the apartment was less cluttered now that she was not going to school full time on top of working full time. She also claimed she was getting a promotion at Wal–Mart and would make 65 cents more per hour. Mother claimed she would manage her money better if J.T.J. were back with her. Mother was scheduled to take her licensing exam for her aesthetics license and claimed she would use the school's career services to find work. Mother ended up postponing her licensing exam due to the stress of the termination hearing.
Mother testified she had completed parenting classes and believed she had completed the mental health evaluation because she thought the parenting evaluation was the same thing. Mother said she parented J.T.J. differently at their short visits than she would if J.T.J. were home with her. She claimed she had been proactive about getting J.T.J. to the bathroom during visits, and she said that she could not control J.T.J.'s accidents after visits end.
As to Mother's irresponsible spending, Mother claimed a TFI worker told her she needed to buy clothes for J.T.J., so she bought clearance items and put things on layaway. She bought name brand shoes on clearance because she was aware that J.T.J. had orthotics and needed supportive shoes.
Mother said she was willing to follow the educational plan for J.T.J., had contacted J.T.J.'s teachers independent of TFI, had worked with Parents as Teachers once or twice a month, and had attended programs recommended by Parents as Teachers. Mother testified she would not remove J.T.J. from school but said she felt she could educate her better at home and, if she had the money to do so, she would hire a tutor.
Regarding J.T.J.'s fall at Wal–Mart, Mother testified that she understood why the agency was concerned about possible child abuse due to the makeup, but she wanted to try the makeup to see if it would cover the bruise on picture day. She said she did not tell the foster mother about the bruise because she had to rush to work. Mother claimed she used Neosporin on the cut and Epsom salts for the bruise.
Mother acknowledged that she had a stressed relationship with her case workers, but she claimed she would continue to work with them to get J.T.J. back home. She also claimed that she had learned to be honest with the agency.
On July 18, 2014, the district court issued its order terminating Mother's parental rights to J.T.J. The court made extensive findings of fact in its written decision before determining there had been a failure of reasonable efforts by the agencies to rehabilitate this family and there had been a lack of effort by Mother to adjust her circumstances or conditions to meet J.T.J.'s needs. It also found that J.T.J. was not in the physical custody of Mother and that Mother had failed to assure care of J.T.J. in her home when able to do so. Mother had also failed to carry out a reasonable plan approved by the court directed toward reintegration of J.T.J. into Mother's home. The district court also found that Mother was presumed unfit here because J.T.J. had been out of the home for more than 2 years, Mother had failed to carry out a reasonable reintegration plan, and there was a substantial probability that Mother would not carry out such plan in the near future. The district court found it was in J.T.J.'s best interests to terminate Mother's parental rights because it would be unfair to let more time pass while Mother tried to change.
Mother timely appeals.
Did the Chief Judge Fulfill the Requirements of K.S.A.2014 Supp. 38–2267 by Appointing the Case's Magistrate Judge as District Judge Pro Tem?
Mother asserts that the chief judge erred by appointing the original magistrate judge in this matter as a district judge pro tem upon Mother's request that the matter be reassigned to a district judge pursuant to K.S.A.2014 Supp. 38–2267. She argues the chief judge could not confer subject matter jurisdiction on a magistrate judge once the request for reassignment was made. She also argues that the failure to provide her with a different judge violated her due process rights to have the termination hearing conducted by an unbiased and impartial judge who had not already determined that termination of her parental rights was the only remaining option.
Resolution of this issue primarily involves the interpretation of several statutes, which is a question of law over which we exercise unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). We must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meaning. Cady, 298 Kan. at 738. When a statute is plain and unambiguous, we are not to speculate about the legislative intent behind that clear language and should refrain from reading something into the statute that is not readily found in its words. 298 Kan. at 738. Only if a statute's language or text is unclear or ambiguous are we to use canons of construction or legislative history to construe the legislature's intent. 298 Kan. at 739.
A. Subject Matter Jurisdiction
The portion of K.S.A.2014 Supp. 38–2267(a) at issue here states: “Upon motion of a party, the chief judge shall reassign a petition or motion requesting termination of parental rights from a district magistrate judge to a district judge pursuant to subsection (e) of K .S.A. 20–302b, and amendments thereto.”
K.S.A.2014 Supp. 20–302b(e) states:
“Upon motion of a party for a petition or motion filed under the Kansas code for care of children requesting termination of parental rights pursuant to K.S.A.2014 Supp. 38–2361 through 38–2367, and amendments thereto, the chief judge shall reassign such action from a district magistrate judge to a district judge.”
Moreover, K.S.A.2014 Supp. 20–302b(a)(6) states, in pertinent part: “Nothing in this paragraph shall be construed as limiting the power of a district magistrate judge to: (A) Except as provided in subsection (e), hear any action pursuant to the Kansas code for care of children or the revised Kansas juvenile justice code.” Mother asserts that this language means a magistrate judge cannot hear a termination motion if reassignment is requested.
However, as Mother conceded in her brief, K.S.A.2014 Supp. 20–310a(a)(l) allows the chief judge to appoint a judge pro tem “[f]or good cause shown,” and K.S.A.2014 Supp. 20–310a(c) grants a judge pro tem “the full power and authority of a district judge.” As we see nothing in the statutory language that prohibits the appointment of a magistrate judge as a district judge pro tem, the chief judge had the authority to appoint the magistrate judge as a district judge pro tem to conduct the termination hearing, assuming the magistrate judge was qualified to be appointed. As Mother has not alleged the magistrate judge was not qualified to be appointed as a district judge pro tem, nor has Mother argued that the chief judge erred in finding good cause to appoint the magistrate judge as a district judge pro tem, we must conclude that the chief judge's appointment of the magistrate judge as a district judge pro tem in this case was not improper.
Mother attempts to get around what would appear to be the plain language of the statutes by asserting the chief judge improperly cited to the former statute, K.S.A. 20–310(a)(c), in the order appointing the magistrate judge as a district judge pro tem and by asserting that the reassignment statute requires assignment to a different judge. As to the first point, since the authority from which the chief judge can confer a judge pro tem appointment is found in K.S.A.2014 Supp. 20–310a(a) and (c), we regard the chief judge's citation to the former statute as an obvious typo which in no way vitiates the order. In fact, we are required to disregard such technical errors. See K.S.A. 60–2105.
As to the second point, noticeably absent from K.S.A.2014 Supp. 20–302b(e) is the word “different.” Mother would have us interpret this statute that reassignment must be to a different judge, but we cannot add that language into the statute. And, contrary to Mother's assertion that a failure to accept her argument would render the statute meaningless, there are sound policy reasons to move a case from a district magistrate judge to a district judge. First, not all magistrate judges are law trained and would not qualify to be appointed as a judge pro tem. See K.S.A.2014 Supp. 20–310a(b) ; K.S.A. 20–334. Second, because K.S.A.2014 Supp. 20–302b(c) requires an appeal from a final decision of a magistrate judge to be “tried and determined de novo by a district judge,” reassigning the case to a district judge or district judge pro tem at the termination hearing stage of a CINC case allows the parties to skip this step in the appellate process, saving much time on appeal where time is of the essence due to the involvement of a child.
Accordingly, we find the chief judge acted lawfully when he appointed the magistrate judge presiding over this case as a district judge pro tem. We further find the magistrate judge was lawfully exercising the power of a district judge once she was appointed a district judge pro tem, thereby meeting the requirements of K.S.A.2014 Supp. 38–2267(a) and had subject matter jurisdiction to conduct the termination hearing.
B. Reassignment Resulting in Bias
Mother's real argument is that she viewed the magistrate judge in this case to be biased against her and would like us to construe K.S .A.2014 Supp. 20–302b(e) to be a mechanism for obtaining a different judge. Mother notes she twice requested a new attorney to represent her before she was given a new appointed attorney, and she requested a change of venue due to perceived bias, which was denied. She asserts the magistrate judge should have recused herself due to her bias and her inability to be impartial in this case. Mother points to the fact the magistrate judge had already determined that reintegration was no longer viable and had ordered the State to file a motion for termination in this case as proof of bias. She claims that a judge who has presided over a CINC proceeding cannot be impartial and disregard his or her previous knowledge of the case when making a termination determination.
In response, the State points out that if Mother felt the magistrate judge could not afford her a fair trial, she should have filed a motion for new judge pursuant to K.S.A. 20–311d. We agree with the State; K.S.A. 20–311dis the mechanism for obtaining a different judge in such an instance. If Mother or her attorney felt the magistrate judge was biased or otherwise incapable of conducting the termination hearing impartially, then Mother could have filed a motion for a new judge pursuant to this statute even after the chief judge had appointed the magistrate judge as a district judge pro tem.
As to the merits of Mother's complaints of bias, on appeal, the only bases alleged by Mother to support her claim of bias consist of adverse rulings made by the magistrate judge during proceedings in this case, including: (1) a determination that reintegration was no longer a viable option; and (2) an order requiring the State to timely file its motion for termination of parental rights. However, adverse rulings alone are not sufficient to show the bias or prejudice required to disqualify a judge under K.S.A. 20–311d. State ex rel. Miller v. Richardson, 229 Kan. 234, 238, 623 P.2d 1317 (1981).
Mother contends that because the magistrate judge found reintegration not to be a viable option and ordered the State to file a motion to terminate Mother's parental rights, such actions constitute proof of the magistrate judge's bias against Mother. We unequivocally reject such an argument because K.S.A.2014 Supp. 38–2255(e) and K.S.A.2014 Supp. 38–2264(b) allow the court to determine whether reintegration is a viable option if the child has been removed from the parent's custody. Further, once the court has determined that reintegration is not a viable option, K.S.A.2014 Supp. 38–2255(f) and K.S.A.2014 Supp. 38–2264(g) require that termination of parental rights proceedings be initiated. The magistrate judge determined that reintegration was no longer a viable option in this case after more than 2 years of efforts aimed at reintegration. The court then ordered the State to file the termination motion, as is required by statute, with or without her order. Not only do the magistrate judge's rulings fail to show bias or an inability to be impartial, the judge was acting in compliance with the Revised Kansas Code for Care of Children (the Code), K.S.A.2014 Supp. 38–2201 et seq. , when she made these rulings.
Mother's final argument—that a judge who has presided over a CINC proceeding cannot be impartial and disregard his or her previous knowledge of the case when making a termination decision—is without merit here. The court is required to hear the State's motion to terminate parental rights within 90 days of its filing. See K.S.A.2014 Supp. 38–2255(f) ; K.S.A.2014 Supp. 38–2264(g) ; K.S.A.2014 Supp. 38–2267(a). Nothing in the Code requires a judge other than the one who has presided over the entire proceeding to hear the motion for termination of parental rights. And while many adverse rulings against a parent have undoubtedly come to pass before the drastic measure of a motion for termination is required to be filed, as we have previously stated, adverse rulings alone are not sufficient to show the bias or prejudice required to disqualify a judge under K.S.A. 20–311d. 229 Kan. at 238.
Frequently, the judge who hears the motion for termination is the same judge who determined the child at issue was a child in need of care and who oversaw the efforts at reintegration. The fact that the judge will have already seen much of the evidence presented at the termination hearing does not demonstrate prejudice against the parent. The State still must prove parental unfitness at the termination hearing by the high standard of clear and convincing evidence. See K.S.A.2014 Supp. 38–2269(a).
Unquestionably, the judge in this matter had seen Mother's parental failings during the course of this case, but the judge also bore witness to Mother's parental successes, her efforts at rehabilitation, and her love for J.T.J. The judge's order terminating Mother's parental rights acknowledged that this was a difficult case. That lengthy order also demonstrates the judge did not rubber stamp the State's request for the termination of Mother's parental rights. There simply is no reason to conclude that Mother's due process rights were violated because the judge could not or did not perform her duties fairly and impartially due to her previous involvement in this case prior to the termination hearing.
Was the Evidence Sufficient to Support the District Court's Findings of Mother's Unfitness?
Mother also argues that the evidence presented by the State was not sufficient to find her unfit.
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 Code 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. See 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. See K .S.A.2014 Supp. 38–2269(b).
When reviewing a district court's findings on this point, 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. 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.
Should sufficient evidence support the district court's finding of present unfitness, our next step is to determine whether clear and convincing evidence supported the district court's determination that Mother's behavior was unlikely to change in the foreseeable future. See K.S.A.2014 Supp. 38–2269(a). The term “ ‘foreseeable future’ “ is measured from the child's perspective and takes into account a child's perception of time. In re S.D., 41 Kan.App.2d 780, 790, 204 P.3d 1182 (2009). This court has considered periods of time as short as 7 months to be the foreseeable future from a child's perspective. 41 Kan.App.2d at 790. A court may predict a parent's future unfitness based on his or her past history. In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982).
The district court's findings, as set out in its order terminating parental rights, will be discussed below. Each basis of unfitness will be addressed individually.
A. K.S.A.2013 Supp. 38–2269(b)(7)
The district court found that, pursuant to K.S.A.2013 Supp. 38–2269(b)(7), there had been a failure of reasonable efforts by appropriate public or private agencies to rehabilitate the family. In its decision, the district court referred to State's exhibit 22, which listed the services provided to Mother and J.T.J. The district court found that despite these services, all of the professionals Mother worked with in this case felt that Mother would not be able to meet J.T.J.'s needs consistently and would put J.T.J. in harm's way unless Mother was continually guided and supervised over the course of J.T.J.'s childhood.
At the termination hearing, the State presented evidence of the numerous services Mother and J.T.J. received as part of this case and the extensive efforts made to rehabilitate the family. Further, Mother had been receiving family preservation services for a year prior to this case in connection with J.T.J.'s older sibling, who eventually was the subject of another CINC case and was placed with her father. Significant evidence supported the district court's findings that there were still huge concerns about Mother's parenting skills such that ongoing supervision and assistance would be necessary in order to ensure J.T.J.'s safety and development in her mother's care.
Significantly, Mother was also offered two safety plans which she appears to have disregarded. The first required Mother and Grandmother to ensure that R.S. was not around J.T.J. during visits throughout the duration of this case. This requirement was also ordered by the court, yet Grandmother testified she supervised visits when she took J.T.J. to Mother's trailer and R.S. was present. The second safety plan similarly required Mother not have J.T.J. around adults with criminal backgrounds and that she keep a safe and clean environment for J.T.J. during overnight visits. Again, Grandmother's testimony about R.S.'s presence during visitations shows that Mother did not follow the safety plan. Intermittent issues with safety hazards, clutter, and uncleanliness in Mother's home, as documented by photographs, further showed that Mother did not heed the safety plan.
While Mother did take advantage of parenting classes, she did not follow up with additional parenting classes as recommended. Mother's hit-and-miss participation in Parents as Teachers is also disconcerting. Mother was offered a mental health intake—separate and apart from the parenting evaluation—and was offered individual therapy but participated in neither. Mother did not follow budgeting recommendations either. Mother also did not take advantage of transportation that was available to help her get J.T.J. to school, opting instead in at least one instance to walk in freezing weather and accept a ride from a stranger.
Part of what makes this a difficult case, however, is the fact that Mother did take part in many of the services that were offered to her. Given our deferential standard of review, however, we must conclude the State did present clear and convincing evidence that, even considering Mother's participation, the reasonable efforts made in this case failed to rehabilitate the family.
B. K.S.A.2013 Supp. 38–2269(b)(8)
The district court found that, pursuant to K.S.A.2013 Supp. 38–2269(b)(8), there had been a lack of effort by Mother to adjust her circumstances or conditions to meet the needs of J.T.J. The district court gave the example of J.T.J.'s frequent absences from school during a period of time when Mother was responsible for getting J.T.J. to school to support this finding. This is not, however, the only finding made by the court that supports this statutory basis of unfitness.
The State presented significant evidence tending to support the district court's findings that Mother had failed to pay rent and maintain stable housing throughout this case, and that her failure to pay rent was not due solely to a lack of income. Further, the record supports the district court's finding that Mother was unable to manage her finances and unwilling to use a budget to help. While Mother's decision to further her education in order to have better financial stability is commendable, the evidence showed that Mother chose to take on a large debt in order to attend Bellus Academy, thereby adding to her monthly expenses at a time when she was not able to pay her rent. This is not responsible financial planning.
Additionally, it was made clear to Mother that she needed to stay away from R.S. and keep him away from J.T.J. The court and the agencies felt this person—who had an extensive, violent criminal history and was an admitted methamphetamine user—should not be around J.T.J. Despite repeated warnings on this point, Mother not only refused to stay away from R.S. but also moved him into her home and later married him. She repeatedly tried to conceal these facts from the agency workers and the court. Mother's position that R.S. had never been violent to her nor had a history of being violent to children did not mean that he was a safe person to have around J.T.J.
We are also unpersuaded by Mother's argument that her marriage to R.S. was entitled to constitutional protection. See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Mother was ordered to have no contact with R.S. prior to her marriage, and her decision to repeatedly defy that order and conceal the truth of her continuing relationship with R.S.—knowing it would harm reintegration efforts with J.T.J.—is particularly troubling. Mother seems incapable of understanding or accepting the concern regarding R.S., and she made a clear choice to maintain her relationship with R.S. to the detriment of preserving her relationship with J.T.J.
Finally, Mother's clear inability to grasp J.T.J.'s developmental delays and needs also supports the finding of unfitness on this point. Mother asking 4–year–old J.T.J. to read the instructions for the gingerbread house provides a glaring example of how little Mother understood about childhood development in general and J.T.J.'s development in particular. At the termination hearing, Mother still did not seem to have a realistic grasp on J.T.J.'s needs. Also alarming was Mother's indication at one point that she thought she could home school J.T.J. if she had the money to do so, though she later backtracked and indicated that she would hire a teacher or tutor to teach J.T.J. at home. Sufficient evidence supported the district court's findings.
C. K.S.A.2013 Supp. 38–2269(c)(1)
Pursuant to K.S.A.2013 Supp. 38–2269(c)(l), the district court determined that while J.T.J. was not in the physical custody of Mother, Mother failed to assure care of J.T.J. in her home when able to do so. The district court noted that substantial evidence was presented that tended to show J.T.J. often left visits with Mother or Grandmother with unexplained bruises and scratches. Additionally, the district court noted that without consistent monitoring, Mother's home contained hazards and dangers for a young child. The record amply supports these findings.
Of particular concern was the large bruise stemming from the Wal–Mart incident. Undoubtedly, children will suffer bumps, bruises, and sometimes worse in early childhood even with adequate parental care. Even accepting, arguendo, that Mother could have done nothing to prevent J.T.J. from being injured that day, Mother's failure to properly treat the bruise is worrisome, and Mother's failure to notify J.T.J.'s foster mother of the injury, which had been covered with makeup, strikes us as dangerous. Mother's need to rush off to work is an unconvincing excuse to explain her failure to notify the foster mother when J.T.J. had suffered a serious head injury. Mother could have easily spared 2 minutes to explain the situation to the foster mother, and it seems safe to assume that she did not do so because she was afraid of the possible consequences.
D. K.S.A.2013 Supp. 38–2269(c)(3)
Pursuant to K.S.A.2013 Supp. 38–2269(c)(3), the district court found Mother had failed to carry out a reasonable plan approved by the court directed toward the integration of J.T.J. into her home. Exemplary of this finding, the district court noted that Mother had failed to follow a budget or manage her finances so that she could pay her rent, which was a case plan task. It also noted that throughout this case, Mother was unable or unwilling to discipline J .T.J. or provide rules, consequences, or structure for J.T.J.
The district court's finding here was supported by clear and convincing evidence at the termination hearing. Mother's difficulty in maintaining her budget has already been discussed. Her inability to properly parent J.T.J. by providing rules, structure, or consequences for J.T.J. was well documented, and there is no reason to think that Mother will provide structure or enforce rules if J.T.J. were reintegrated in her home. Further evidence in support of this finding includes Mother's failure to obtain a mental health intake and follow all mental health recommendations.
Mother did accomplish many tasks on the plan aimed at reintegration, including having a drug and alcohol assessment, taking random UAs, taking parenting classes, participating in a parenting evaluation, maintaining employment, and, after the first year of this case, maintaining visitations with J.T.J. Despite these accomplishments, Mother did not fully comply with many tasks set out as this case progressed. She did not maintain honesty with the agencies as was thoroughly documented at the hearing, she did not report injuries, and she did not supply proof of payment of rent or documentation of the hours she worked.
Mother's most blatant task plan failure, however, was the one requiring her not to have contact with R.S. Through the evidence presented at trial, it is clear that Mother maintained contact with R.S., even after he returned to prison. Though she tried to paint herself as a somewhat unwilling participant in the relationship with R.S., the evidence shows that she cared for him and made a choice to continue and grow the relationship despite the consequences. Mother is right that she had every right to marry R.S., but her choice to exercise that right had consequences here.
E. K.S.A.2013 Supp. 38–2271(a)(6)
Finally, pursuant to K.S.A.2013 Supp. 38–2271(a)(6), the district court determined that Mother was presumptively unfit by reason of conduct or condition which rendered her unable to fully care for J.T.J. because J.T.J. had been in out-of-home placement under court order for a cumulative total period of 2 years or longer; Mother had failed to carry out a reasonable plan, approved by the court, directed toward reintegration of J.T.J. into Mother's home; and there was a substantial probability that Mother would not carry out such plan in the near future.
When a presumption of unfitness comes into play, the legislature has established a two-step process for addressing that presumption. The State may establish the presumption if it proves any of several statutory bases listed in K.S.A.2014 Supp. 38–2271(a)(1)–(13) by clear and convincing evidence. If the State does so, then the parent has to rebut the presumption of unfitness by a preponderance of the evidence. K.S.A.2014 Supp. 38–2271(b) ; see K.S.A. 60–414. In some cases, the parent may present evidence directly negating the claim for the presumption. In others, the facts supporting the presumption may be true yet the parent may present other evidence establishing fitness.
Here, there is no dispute that J.T.J. had been placed out of her mother's home for more than 2 years. Moreover, the State had presented clear and convincing evidence that Mother had failed to carry out a reasonable plan, approved by the court, directed toward reintegration of J.T.J. into Mother's home. The only element left to be determined is whether the State presented sufficient evidence to show there was a substantial likelihood that Mother would not carry out a reasonable plan aimed at reintegration in the near future.
Given the history of this case, we conclude the State met its burden. As found by the court, Mother had nearly achieved reintegration twice before she made such detrimental decisions about the health and safety of J.T.J. that J.T.J. had to be returned to foster care and visitation had to be supervised. Each time, the number of case plan tasks was increased to address the new issues that arose. It seems clear from the evidence that Mother would need supervision and guidance for many years to come in order to properly parent J.T.J. Thus, it is highly unlikely that Mother could carry out a reasonable plan aimed at reintegration in the near future.
Mother's testimony and evidence did little to rebut this presumption. She still did not understand the concerns about R.S., and her arguments to this court appear to demonstrate that her priority is her relationship with R.S., not J.T.J.'s well being. Specifically, evidence that Mother and Grandmother had been visiting and otherwise contacting R.S. in prison was disturbing enough because it showed Mother was still invested in the relationship with R.S. Most worrisome, however, was Mother's continuing untruthfulness and noncompliance with the court and the agencies regarding her relationship with R.S. Also concerning was Mother's testimony which seemed to indicate she felt she could almost magically fix her parenting and financial issues if J.T.J. were back home with her. Given that the parental and financial pressures would be exponentially greater if J.T.J. were back in Mother's home, Mother's testimony on this point strikes us as Pollyannaish at best.
Taken as a whole, the evidence of unfitness was sufficient here, and a reasonable factfinder could have found it highly probable that the State had shown by clear and convincing evidence that Mother was unfit under a number of factors, and it showed that Mother was likely to remain unfit for the foreseeable future.
Was Termination of Mother's Parental Rights in the Best Interests of J.T.J.?
Finally, Mother argues that termination of her parental rights was not in the best interests of J.T.J. Her argument, however, does not address the actual reason relied upon by the district court when making its best interests determination but rather focuses on one issue noted by the district court when it determined that Mother was unfit. Mother essentially asserts that although she is poor, she has the ability to care for J.T.J.'s physical, mental, and emotional needs and has always provided J.T.J. with love.
If the district court makes a finding that a parent is unfit, it must then consider whether the termination of parental rights is in the best interests of the child, giving “primary consideration to the physical, mental and emotional health of the child.” K.S.A.2014 Supp. 28–2269(g)(1). Because it hears the evidence directly, the district court is in the best position to determine the best interests of the child, and we cannot overturn this determination without finding an abuse of discretion. In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied October 7, 2010. An abuse of discretion occurs when no reasonable person would agree with the district court or when the court bases its decision on an error of fact or an error of law. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). “In determining whether the district court has made a factual error, we review any additional factual findings made in the best-interests determination to see that substantial evidence supports them (recognizing that the preponderance-of-the-evidence standard applies in the district court).” In re R.S., 50 Kan.App.2d 1105, 1116, 336 P.3d 903 (2014). In considering termination, “the court shall give primary consideration to the physical, mental and emotional health of the child.” K.S.A.2014 Supp. 38–2269(g)(1).
After the district court determined that Mother was unfit, it stated:
“Sadly, [Mother] has had over three full years to [come to understand what the problems were and the need to make changes]. During these years, her daughter has grown from a baby into a preschooler while out of her mother's care. It is simply unfair and contrary to [J.T.J.]'s best interests to let more time pass while her biological mother tries to change.... It is also in [J.T.J.]'s best interest's that [Mother]'s parental rights be terminated.”
The district court's determination on this issue has nothing to do with wealth versus poverty, and there was no one incident that made termination in J.T.J.'s best interests. Rather, the full history of this matter demonstrated that it was time to stop giving Mother more chances and to start putting J.T.J.'s needs first. Here, J.T.J. had been in out-of-home placement for more than 3 years by the end of the termination hearing. J.T.J. had been in foster care—and in more than one foster home—for nearly 2 years at that point. When this matter first started, J.T.J. was only 18 months old. By the time of the termination hearing, she was over 4 years old. Over the course of this case, there were times when Mother managed to improve her situation that J.T.J. was almost allowed to reintegrate in her home—meaning that J.T.J. was allowed to spend significant time alone with her mother—and both times, Mother made terribly poor choices that resulted in J.T.J. being removed from her care.
The district court's best interests finding, as quoted above, shows that the district court felt that permanency or some sense of stability was in J.T.J.'s best interests. A child's ability to depend on the presence and continued involvement of the adults in his or her life is vital to a young child's emotional and mental well-being. By all indications, Mother still had significant work to do before reintegration with J.T.J. could be achieved. Mother's troubling track record in this case—replete with self-sabotaging decisions—leaves little room to hope that another chance at reintegration would come out any differently. Viewing the passage of time from the point of view of a child, as this court must, and recognizing that J.T.J. spent more than twice as long out of her Mother's home as she spent in it, it cannot be said that the district court abused its discretion by finding that termination was in J.T.J.'s best interests.
Affirmed.