Opinion
No. 112619.
07-02-2015
In the Interest of: T.C., Date of Birth: xx/xx/1999, A.K., Date of Birth: xx/xx/2002, A.K., Date of Birth xx/xx/2003.
Michael E. Lazzo, of Wichita, for appellant. Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Michael E. Lazzo, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
Opinion
LEBEN, J.
Mother appeals from the termination of her parental rights to three children. Parental rights may be terminated only in circumstances set out by statute and only when clear and convincing evidence supports termination.
Mother claims on appeal that the evidence was insufficient to terminate her parental rights. But termination is authorized when a parent has shown a lack of effort to adjust her circumstances, conduct, and condition to meet the children's needs, K.S.A.2014 Supp. 38–2269(b)(8) ; and when reasonable efforts by public and private agencies to get the family back together have failed, K.S.A.2014 Supp. 38–2269(b)(7).
Here, at the time the district court terminated Mother's parental rights, the children had been in State custody (placed in foster homes) for 21 months–19 of those after the court had determined that the care provided for them had been so lacking that the children were legally “children in need of care.” See K.S.A.2014 Supp. 38–2202(d). The family had received extensive services from social-service agencies: Mother was permitted supervised visits with the children, each child and Mother had an individual therapist, and a family therapist provided group counseling. During that time, however, Mother had not conceded that any aspect of her parenting had caused any problems for her children, even though witnesses said she had hit, kicked, and slapped her children; Mother told her therapist that nothing would be different from before if the children came home to her. There were other serious problems too, as we will discuss later in our opinion.
We recognize that termination of parental rights is a serious matter. We have reviewed the entire record in this case, and we find clear and convincing evidence to support the district court's findings that Mother was unfit as a parent and that the conditions leading to that finding were unlikely to change in the foreseeable future. We therefore affirm the district court's judgment.
Factual and Procedural Background
The three children, all girls, are A.E.K, who was 9 when taken out of Mother's home (in October 2012) and 11 at the time of the termination hearing; A.T.K., 12 at the time of the termination hearing (and presumably 10 when taken out of Mother's home); and T.C ., 12 when taken out of Mother's home and 14 at the time of the termination hearing.
The case began with a child-in-need-of-care petition filed October 26, 2012. The girls were taken out of Mother's home under a series of temporary orders. The district court determined the children were in need of care in December 2012, and the court held a series of review hearings. The State filed a motion to terminate Mother's parental rights on November 8, 2013, and filed an amended motion on May 30, 2014.
At a hearing held March 10, 2014, Mother stipulated to her present unfitness to parent the girls. The court granted Mother a continuance to allow additional time to complete court orders related to possible family reintegration and to demonstrate stability. The court then resumed the hearing for the purpose of taking evidence from the parties on June 16, 2014. Additional testimony was taken on July 10, 14, 22, and 23, 2014.
At Mother's request, all three children testified at the termination hearing. In addition, the court also heard testimony from Mother, several members of Mother's family, the five therapists involved with the family, and the family's case manager with St. Francis Community Services.
A.E.K. and A.T.K. both testified that Mother had hit them many times, often as part of what Mother considered discipline. A.E.K. said Mother had kicked, slapped, and thrown things at her; she recounted one time when Mother had slapped her and then banged her head against a washing machine. She said that another time, she and A.T.K. had run outside because Mother had been throwing things at them, and Mother had gotten in her car and tried to run over one of them. A.T.K. also testified that Mother had once tried to run over the two girls with her car. More generally, A.T.K. said Mother had hit and slapped the children; she recounted one time when Mother had hit her over the head with a guitar when she did not want to help with something. She said Mother had used her hand, a belt, and an extension cord to hit the children.
Both A.E.K. and A.T.K. also reported that they had not had enough food and claimed they had left the house to steal food at night. They also talked about the dirty condition of Mother's home. A.E.K. said she had slept on dirty mattresses or mats on the floor and that her clothes weren't clean. A.T.K. said she had slept on the floor on deflated air mattresses, cots, mats, or blankets. Both A.E.K. and A.T.K. said they did not want to live with Mother.
T.C. said that she wanted to return to live with Mother. She recounted physical discipline in which Mother had made her stand in the comer and had spanked her and her sisters. She said Mother would at times use her hand to spank the children and at other times would use an object like a belt. T.C. said that although she was trying to show her emotions in therapy, she had not yet talked there about what had happened in her Mother's home.
Therapists for all three children testified. Elizabeth Belt, A.E .K.'s therapist, said A.E.K. did not feel safe in Mother's home because Mother didn't keep her safe or provide for her needs. A.E.K. believed Mother blamed her for the children being placed in foster care; Belt had worked through that issue with A.E.K. Belt said that further efforts to reintegrate A.E.K. would negatively impact A.E.K.'s emotional and physical well-being.
Mami Wilson, A.T.K.'s therapist, said A.T.K. generally avoided answering direct questions but expressed her feelings mainly through activity. Wilson said A.T.K. had initially been angry with A.E.K. and blamed her for them being in foster care. After Wilson helped A .T.K. with her anger, A.T.K. began to discuss what had happened in Mother's home. A.T.K. told Wilson that Mother had slapped and beat her and also punished her by locking her in her room or making her carry a weight or ran. Wilson testified that it was not in A.T.K's best interests to be reintegrated with mother; after 2 years away from Mother's home, she said, A.T.K. felt happy and safe.
Tasia Farley, T.C.'s therapist, said that T.C. had made minimal progress in therapy and still struggled to talk about substantiated abuse from the past. T.C. had been diagnosed with general anxiety disorder and mood disorder; the therapist also noted that T.C. had been sexually abused. Although T.C. wanted to return to live with Mother, Farley testified that it was not in T.C.'s best interests to do so.
Colin Fee, Mother's therapist, said that little progress could occur because Mother had little recognition of why the children had been removed from her home. Fee said Mother blamed false claims from the children and miscommunication between social-service workers and herself for all the problems. When Fee directly asked Mother what would be different if the children came home, she replied, “[N]othing, there's no problem.”
Jeanine Jantz, a family therapist, began working with the family as a group in an attempt to improve family relationships and to determine whether reintegration could occur. After 10 sessions, she said that no progress had been made, so she recommended that the girls' visits with their Mother stop. Jantz said that Mother was not meeting the children's emotional needs because she deflected their comments, was guarded, and directly told the children they were lying. Jantz feared that further group sessions could impede each child's individual healing.
Jessica Duntz, the case manager for St. Francis Community Services, said she had spent 1 to 2 hours with the children in their home when she was assigned to take over the case from another worker. She said that T.C. had not known some basic hygiene information. From March to June 2014, she said that Mother had participated in family therapy and supervised visits with the girls. In June 2014, however, Duntz made an unscheduled visit to Mother's home and found it littered with trash, papers, and dirty clothes, including soiled underwear on the couch. She also reported that on one occasion when the girls had shown up for a home visit at Mother's, all of the furniture had been gone. Duntz said that Mother had not articulated an understanding of why the children had been placed in foster homes, hadn't progressed in individual therapy, and often didn't show empathy toward the children. When that happened, Duntz said, the children shut down. She said that Mother was not meeting the children's emotional needs and noted that none of the therapists believed the children were ready to live with Mother. She recommended that Mother's parental rights be terminated.
Mother denied the claims of abuse and said the children were not telling the truth. She said she did not need to change her parenting because what she had been doing before the State took her children had worked well.
While the children were still living with Mother, she had married a man named L.B. He is a convicted sex offender, and Mother admitted she had heard he was a sex offender but had decided to marry him anyway. She later filed for divorce from him, but she testified on his behalf in a criminal-court proceeding in March 2014. Duntz reported that L.B. was living with Mother's mother at the time of the hearing; A.T.K. testified that she did not believe that L.B. was out of her Mother's life. Mother's decision to marry L.B. despite his record stands out given that T.C. had been sexually abused by another man in the past.
Several other witnesses testified generally in Mother's favor. Peggy Daggett–Jones, a friend, said that she knew the family through church and that the children had appeared happy. The father of A.T.K. and A.E.K. said he had no concerns about the children living with Mother. (His own parental rights were terminated in the same proceeding; the termination of his parental rights is not an issue in this appeal.) Mother's father testified that Mother was raising her children in a similar manner to the way in which he had raised her. Mother's two brothers said they had not seen any indication of abuse.
The district court concluded that the State had shown by clear and convincing evidence that Mother was unfit as a parent and that her fitness was unlikely to change in the foreseeable future. The court also found that terminating her parental rights was in the children's best interests, and the court ordered termination. Mother has appealed to this court.
Analysis
The district court may terminate a parent's rights when the party seeking to terminate those rights (here, the State) has shown (1) that the parent is unfit and will likely remain so for the foreseeable future and (2) that it is in the best interests of the child to terminate the parent's rights. See K.S.A.2014 Supp. 38–2269(a), (g)(1). Further, a parent's rights may be terminated only when the evidence supporting termination is especially strong: under the statute, the evidence must be “clear and convincing.” K .S.A.2014 Supp. 38–2269(a). To be clear and convincing, the facts must be highly probable. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008) ; In re R.S., 50 Kan.App.2d 1105, 1113, 336 P.3d 903 (2014).
We review a district court's decision to terminate a parent's rights by asking whether a rational factfinder could have found it highly probable that the parent's rights should be terminated. In re M.H., 50 Kan.App.2d 1162, 1170, 337 P.3d 711 (2014). Because the district court—which is charged with finding the facts—terminated Mother's parental rights, we review the evidence in the light most favorable to that determination. 50 Kan.App.2d at 1170 ; In re K.W., 45 Kan.App.2d 353, Syl. ¶ 1, 246 P.3d 1021 (2011). Further, in reviewing the district court's decision, we may not reweigh the evidence, judge the credibility of witnesses, or redetermine factual questions. In re B.D.Y., 286 Kan. at 705 ; In re M.H., 50 Kan.App.2d at 1170.
Mother argues that the district court lacked sufficient evidence to conclude that she was presently unfit to parent the children and that her unfitness was unlikely to change in the foreseeable future. The district court may base its finding of unfitness on one of several bases outlined by the legislature. See K.S.A.2014 Supp. 38–2269(a) –(c). If supported by clear and convincing evidence, a single statutory basis for unfitness can support terminating a parent's rights, though courts should consider all applicable factors. K.S.A.2014 Supp. 38–2269(f) ; In re M.H., 50 Kan.App.2d at 1170.
Here, the district court relied on three of these statutory factors: (1) that Mother had shown a lack of effort to adjust her circumstances, conduct, and condition to meet the children's needs, K.S.A.2014 Supp. 38–2269(b)(8) ; (2) that reasonable efforts by public and private agencies to get the family back together had failed, K.S.A.2014 Supp. 38–2269(b)(7) ; and (3) that Mother had failed to carry out a reasonable, court-approved plan directed toward reintegrating the children into her home, K.S.A.2014 Supp. 38–2269(c)(3). We will discuss only the first two.
The State suggests that we could summarily affirm the district court based on Mother's failure to adequately brief any complaint about the district court's reliance on the third factor. The State may be right about that; Mother has at least failed to address that factor explicitly. But that factor is closely related to the first factor listed above (Mother's own failure to adjust her circumstances to meet the children's needs)—Mother's alleged failure to adjust her circumstances manifested itself during the attempts of social-service workers to help the family. Given the importance of the issues at stake here, we choose to address Mother's appeal on its merit, not on the basis that her appellate brief is inadequate.
The State also notes that Mother failed to include 20 exhibits that were admitted in evidence in the record on appeal. The State rightly notes that we could rule against Mother's appeal on the basis that she has failed to provide a complete record—and we therefore can't review all of the evidence supporting the State's case. After all, her claim is that the evidence wasn't sufficient to support the district court's ruling; without all of the State's evidence, how could we conclude that the State's evidence wasn't enough?
The State also is correct that the party claiming error on appeal (here, Mother) must provide a sufficient record to show the error. State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013). Once again, however, given the importance of the issues at stake here, we have proceeded to review the record that is available to us. From that review, we are able to conclude that the evidence was sufficient to support the district court's conclusions, so we once again address Mother's appellate claims on their merits.
We turn, then, to the evidence supporting the two remaining factors—that Mother had shown a lack of effort to adjust her circumstances, conduct, and condition to meet the children's needs, and that reasonable efforts by public and private agencies to get the family back together had failed. These factors are intertwined in this case—Mother's failure to adjust her circumstances and conduct led to the failure of agency efforts to get the family back together. So we will discuss both factors together.
Obviously there is a stark contrast between the way Mother views the case and the way most everyone else (excluding her immediate family) does. Mother has essentially conceded that she has refused to adjust her circumstances, conduct, and condition; she says she didn't need to.
That's where Mother's claims run into substantial problems. Her children already were found to be children in need of care in December 2012. Mother has not appealed the child-in-need-of-care finding. Mother also stipulated to her present unfitness to parent the girls at a hearing held in March 2014. It seems a given, then, that some change by Mother was called for here, and Mother really doesn't claim to have made any substantial changes with respect to the children.
The district court's finding of unfitness was supported by the testimony of the children, five therapists, and the case manager. The district court did not accept all of the children's testimony; the court noted that it could not determine whether the children were telling the truth about stealing food. But even if that was made up, the court still found it “concerning” and supportive of the State's case. And there was extensive evidence to support the court's conclusions that the children had suffered physical abuse or trauma at Mother's hands, that Mother parented largely through fear, that Mother had put the children's safety in jeopardy (in part through her relationship with L.B.), and that the children had been neglected (through their living conditions and hygiene issues). Despite extensive individual and family therapy, all of the therapists concluded that further contact between Mother and the children was going to be harmful to them, not helpful or nurturing. We cannot reweigh the evidence on appeal, and we must take the evidence in the light most favorable to the State. In re B.D.-Y., 286 Kan. at 705 ; In re M.H., 50 Kan.App.2d at 1170. Under these standards, clear and convincing evidence supports the district court's unfitness finding based on both factors (Mother's failure to adjust and the failure of agency efforts aimed at reintegration).
The district court's finding that Mother's unfitness was unlikely to change in the foreseeable future is also supported by clear and convincing evidence. As the court noted, Mother had been receiving therapy and other services for 21 months, yet she had not made progress in recognizing any contribution she had made to the children's problems. Nor was she committed to making any changes. We must consider the foreseeable future from the children's perspective, not Mother's, as a child's perception of time differs from that of an adult. In re R.S., 50 Kan.App.2d at 1117. Taking the facts in the light most favorable to the State, clear and convincing evidence again supported the district court's conclusion.
We understand that these cases are difficult. “A parent may be labeled ‘unfit’ under the law even though he or she loves the child and wants to do the right thing, which may be the case here.” In re A.A., 38 Kan.App.2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008). But courts are obligated to provide final resolution of cases within a reasonable amount of time viewed from the child's perspective. The district court's conclusions are supported by clear and convincing evidence, and we affirm its judgment.