Opinion
112,594.
07-24-2015
In the Interest of S.A.S–T. H/F, Date of Birth: XX/XX/2001, W.A.H.-T. H/M, Date of Birth: XX/XX/2007, K.Y.H–T. H/F, Date of Birth: XX/XX/2010.
Shannon L. Cooper, of Andover, for appellant natural mother. Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Shannon L. Cooper, of Andover, for appellant natural mother.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before PIERRON, P.J., McANANY, J., and Burgess, S.J.
MEMORANDUM OPINION
PER CURIAM.
The natural mother of S.A.S–T., W.A.H–T., and K.Y.H–T., appeals the termination of her parental rights. Her sole argument on appeal is that the district court terminated her parental rights because she would probably be deported to Mexico and it was unlikely she would be able to remain in the United States. She also contends the district court erred by finding the United States was a better place to live than Mexico. However, the mother has not addressed or attempted to refute the statutory factors relied upon by the district court in terminating her parental rights. We find those factors are supported by the evidence and the court did not err in its decision.
The mother is an illegal alien. S.A.S–T., W.A.H–T., and K.Y.H–T., were taken into police protective custody in July 2010 after police found a large amount of drugs in the mother's home. The father of W.A.H.-T. and K.Y.H–T. was eventually convicted of multiple federal drug charges. The mother was arrested and convicted of the sale of methamphetamine. Child in Need of Care (CINC) petitions were filed for each of the children and they were put in temporary out-of-home placement. In October 2010, the children were placed with a maternal aunt, who was also an illegal alien. The mother was sentenced to probation in the drug case. The children were eventually reintegrated into the mother's home on May 24, 2011. At an administrative review hearing in August 2011, the district court found the children were doing well and ordered that they be released from the court's jurisdiction.
The children came back into the system on November 14, 2012, when a second CINC petition was filed. The petition alleged the mother had been deported to Mexico approximately 3 months earlier after violating her probation by traveling out of state to a Texas federal prison to visit the father of W.A.H–T. and K.Y.H–T. After the mother's deportation the children stayed with the family's pastor who was to meet with the maternal aunt to take the children to Mexico. After the pastor left the country, the children were allegedly staying with a friend of the mother. This living arrangement surfaced when the paternal grandmother of W.A.H–T. and K .Y.H–T. showed up at their school on November 9, 2012, in order to take them back to California with her. Since they did not have a legal guardian, the children were taken into protective custody. The children were adjudicated to be in need of care on December 20, 2012.
The State filed termination proceedings on June 13, 2013. The district court's hearing on termination had multiple continuances. After the March 27, 2014, hearing where the court terminated the father's rights, the final journal entry included the following findings and conclusions:
“The Court makes the following findings by clear and convincing evidence. The Court has great sympathy for the parents and family members and notes the suffering involved. The court understands that parents are precious pieces of the puzzle of a child's life and sees termination as a last resort. The Court notes that the test is current unfitness, unfitness in the foreseeable future and best interest of the children. The Court finds that the overwhelming fact is the incarceration for both parents. As to father, the children will be another four (4) years older before he is out of prison, and there is no certainty that he would return to criminal activity but there is risk that he would return to his former means of support and would not be able to establish a permanent stable home. The Court reviewed all the grounds set forth in the statute, and the State has proven each and every statutory basis it alleged. Abandonment was not alleged or proven. The Court finds that father is unfit now and in the foreseeable future and it's in the children's best interest to terminate parental rights in consideration of child's time. Father's rights are terminated.
“Mother's situation is different. Assuming that she is out of jail in June, the court knows she loves her children and that mother is not a bad person. Mother also has the same risk factors as father. Even if she is released in June, the court does not know how many months it would be before she could get stable in Mexico. Mother testified she thinks she can be stable today or tomorrow upon release, but it would likely take months. The Court is concern[ed] that Mother is unable to distance herself from her former means of support. Father's risks are Mother's also. Of the cards dealt to her, she played them poorly at every instance. The Court has no faith that she will do any better in the future, and she does not have reliable help in doing so. The Court has no basis to assume that Mother will get better at making decisions, and the Court cannot place the children at risk. The Court reviewed all the grounds set forth in the statute, and the State has proven each and every statutory basis it alleged. Abandonment was not alleged or proven. The court finds that Mother is currently unfit and that is unlikely to change in the foreseeable future and it is in the children's best interest to terminate her rights, but the court has some questions, and will withhold its ruling regarding termination as to Mother as the court wants to know the children's position about adoption versus permanent custodianship. The Court does not foresee ever being able to place the children back with Mother. As the grandmother said, the opportunities for the children are here. The Court finds that it is not in the children's best interest to separate the siblings. The Court will not make specific findings as to relatives, other than the Court will not require that relatives have legal status, but they need to be able to prove stability. All allegations [pled] by the State have been proved by clear and convincing evidence.”
The district court recessed the termination proceedings until April 17, 2014, for further argument. There is no transcript included in the record on appeal concerning the hearing on April 17, 2014. The court apparently set the case for administrative review on May 2, 2014, and then filed its journal entry terminating both parents' rights on May 23, 2014. The journal entry lists the following statutory factors for terminating the mother's parental rights: (1) physical, mental or emotional abuse or neglect or sexual abuse of a child; (2) conviction of a felony and imprisonment; (3) failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family; (4) lack of effort on the part of the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child; and (5) failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home.
The district court concluded it was in the best interests of the children to terminate the mother's parental rights. Mother appeals.
Initially, the State argues the mother has failed to produce a complete appellate record in order to be able to properly examine the termination of her parental rights. In the journal entry of termination, the trial court listed 30 exhibits admitted into evidence and considered by the court at the termination hearings on December 4, 2013, and January 17, 2014. Unfortunately, the mother has failed to include these exhibits in the record on appeal, which limits our review of her claim. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (“The party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error.”); see also Bohanon v. Werholtz, 46 Kan.App.2d 9, 15, 257 P.3d 1239 (2011). If the appellate record is inadequate, the appellate court presumes the district court's findings were properly supported and the claim of error must fail. State v. Haney, 34 Kan.App.2d 232, 236, 116 P.3d 747, rev. denied 280 Kan. 987 (2005).
All of the mother's arguments on appeal concern the incorrect statement that her immigration status was the key basis upon which the district court terminated her parental rights. However, the court's decision to terminate parental rights was based on several statutory factors in K.S.A.2014 Supp. 38–2269.
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 (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 fact finder that the parents were unfit and whether the evidence was highly probable and clear and convincing 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 State argues that since the mother does not dispute the other factors relied upon by the district court to terminate her parental rights, any argument those factors are not supported by the evidence is waived or abandoned. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (issue not briefed by a party is deemed waived or abandoned). Regardless, 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.
KS.A.2014 Supp. 38–2269(b)(4)
The district court found that pursuant to K.S.A.2014 Supp. 38–2269(b)(4), there had been physical, mental, or emotional abuse or neglect or sexual abuse of the children.
The children in this case were involved in two CINC proceedings. They were previously in state custody due to the incarceration of both parents following felony drug convictions. The mother was deported in November 2012 because she had violated her felony drug probation and she had made no plans for her children except to leave them in the care of friends or church members. She indicated she had intended to leave the children with her sister, but her sister had been deported also.
The mother presented witnesses who testified about the loving and nurturing relationship she had with her children. Maria Gomez attended church with the mother and testified the best thing for the children was to live with the mother. Fernando Garcia was the assistant pastor at the church the mother attended. Garcia testified that the mother was a good mother to the children and she hoped to get her children back.
K.S.A.2014 Supp. 38–2269(b)(5)
The district court found that pursuant to K.S.A.2014 Supp. 38–2269(b)(5), the mother had been convicted of a felony and was imprisoned.
Mother was convicted of sale of methamphetamines in 2010 and was incarcerated at the time of the termination hearings due to a violation of her probation. Brent Anderson, an attorney with the United States Attorney's Office, testified as to the immigration charges filed against mother. He said mother had been arrested and indicted on federal immigration charges for reentry after deportation by a person having previously been convicted of an aggravated felony. The mother would not be able to file for readmission to the United States because of the felony conviction and she would likely be sentenced for 24 to 30 months in federal prison after completion of her probation violation sentence.
The State cites In re M.B., 39 Kan.App.2d 31, 47–48, 176 P.3d 977 (2008), for authority that this court has found that imprisonment for as few as 7 additional months from the date of a hearing, in combination with other factors, was sufficient to show that a parent's condition would not change in the foreseeable future. The court noted the foreseeable future is assessed from the viewpoint of the child, not the parent, because the child's perception of time differs substantially from the adult's perception. 39 Kan.App.2d at 45.
K.S.A.2014 Supp. 38–2269(b)(7)
The district court found that, pursuant to K.S.A.2014 Supp. 38–2269(b)(7), there had been a failure of reasonable efforts by appropriate public or private agencies to rehabilitate the family.
Donise Miller, a case manager with St. Francis Community Services, was assigned to this case in November 2012 and then reassigned in July 2013. Miller first had contact with the mother in January 2013. She testified she went over the court orders with the mother on the phone and stressed how the mother needed to comply with those orders.
Miller testified that on February 27, 2013, the mother asked her to bring the children to the Mexican border and wondered whether Miller would call immigration if mother came to get the children. Miller advised the mother that neither of those options were appropriate. Miller next spoke with the mother on August 19, 2013, when the mother was in Wichita. Miller met with the mother on August 20, 2013, and provided her with a copy of the temporary custody journal entry, all the court orders, directed her to all the resources to begin completing the orders, and advising of court dates.
The mother never provided documentation that she had initiated or completed any of the orders. Miller heard from the mother once every month or two. Miller testified there was never a plan for the district court to place the children with the mother in Mexico. Miller testified it was not in the best interests of the children to wait out the parents' incarceration or possible deportation and that permanency was very important. Miller felt that reintegration with the parents was not an option.
The mother testified concerning a safety plan she created with Pastor Joel Rivas and an attorney. The mother testified the plan in case she was jailed was for Pastor Rivas to transfer the children to the children's aunt in Texas or to their aunt in California. Neither of the aunts were legal residents. The mother testified she came back to this country because she loved her children and wanted them to be with her.
K.S.A.2014 Supp. 38–2269(b)(8)
The district court found that pursuant to K.S.A.2014 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 the children.
The mother took no responsibility for her incarceration and indicated it was not her fault that she was unable to care for her children. All three children struggled with adjusting to the changes in their placement and were diagnosed with adjustment disorder with anxiety. It is critical that children are in a stable environment and experience consistency and permanency with respect to care giving. Beth Christians, a therapist with High Plains Mental Health Center, provided therapy for the children beginning December 2012. She testified as to the therapy she provided all three children and the struggles they had with changes in their environment. The children had progressed in therapy during their 2 years in state custody. Christians testified it was in the best interests of the children to give them a long-term stable environment and the children should remain together. Christians testified the foster parents noted regressive behaviors in the children after visitation with the grandparents.
Miller explained how children experience the passage of time differently than adults and it is detrimental for children to be without permanency for a long period of time. The children had been in custody for 24 months and all 3 children were quite young. Miller testified it was detrimental for the children to continue without permanency.
K.S.A.2014 Supp. 38–2269(c)(3)
Pursuant to K.S.A. 38–2269(c)(3), the district court found the mother had failed to carry out a reasonable plan approved by the court directed toward the integration of the children into the parental home. The mother testified she did not go to her children's court dates because her husband told her not to go. Miller testified as to her effort to assist the mother with compliance with court orders, yet the mother failed to present any documentation that she initiated or completed any of the orders.
Conclusion
We agree with the mother that geographical opportunities for the children should not be the critical factor in the decision to terminate parental rights and we decline to postulate that this would support a best-interest finding. See, e.g., In re Doe, 153 Idaho 258, 265, 281 P.3d 74 (2009) (“The fact that a child may enjoy a higher standard of living in the United States than in the country where the child's parent resides is not a reason to terminate the parental rights of a foreign national.”); In re Angelica L., 277 Neb. 984, 1009, 767 N.W.2d 74 (2009) (“[T]he fact that the State considers certain adoptive parents ... ‘better’... does not overcome the commanding presumption that reuniting the children with [their mother] is in their best interests-no matter what country she lives in ... [T]his court has never deprived a parent of the custody of a child merely because on financial or other grounds a stranger might better provide.”). Yet, as outlined in the district court's decision, the court relied on many statutory factors supported by the evidence. We also pause to comment that none of the cases cited by the mother involve parental rights issues of a parent involved in deportation based on commission of an aggravated drug felony or collateral consequences therefrom.
The factual existence of parental unfitness can be judicially predicted from a parent's past history. In re Price, 7 Kan.App.2d at 483. Courts do not have to gamble with a child's future or experiment with the child's welfare before taking action. A child should not have to endure the inevitable to the child's detriment and harm in order to give the parent an opportunity to prove the parent's suitability. 7 Kan.App.2d at 480 (citing In re East, 32 Ohio Misc. 65, 69, 288 N.E.2d 343 [1972] ). Here, the district court was not willing to take such a gamble. Both parents were incarcerated. The mother was given a huge opportunity to prove her fitness after the dismissal of the first CINC case, but frittered away her chances.
Although the testimony at the hearing revealed that the mother obviously loved and cared for her children, there was also testimony that the children needed permanency in their lives and that they would benefit from termination. In addition, the children's therapist testified it was in the best interests of these children to have permanency. These children had been removed from the mother before. The fact remained that the children had been in State custody for nearly 2 years with a questionable future of when either of the parents would be out of prison and/or possibly deported. Based on these circumstances and those outlined by the district court, the court was correct in finding that the situation was unlikely to change in the foreseeable future and that the best interests of the children would be served by termination of the mother's parental rights.
After reviewing the record on appeal, we find substantial competent evidence to support the trial court's finding of unfitness based on the factors under K.S.A.2014 Supp. 38–2269. As a result, we affirm the district court's decision to terminate the mother's parental rights to S.A.S–T., W.A.H–T., and K.Y.H–T.
Affirmed.