Opinion
No. 108.608.
2013-10-7
In the Interest of Q.H., XX–XX–1996, I.R., XX–XX–1998.
Appeal from Wyandotte District Court; Daniel Cahill, Judge. Patricia Aylward–Kalb, of Kansas City, for appellant natural mother. Casey Meyer, assistant district attorney, Jerome A, Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.
Patricia Aylward–Kalb, of Kansas City, for appellant natural mother. Casey Meyer, assistant district attorney, Jerome A, Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, J.J.
MEMORANDUM OPINION
PER CURIAM:
J.H. appeals the termination of her parental rights to two daughters, arguing that the district court should have offered her a reintegration plan designed to keep her children with her. But reintegration may not be possible in all cases, and the child-in-need-of-care statutes do not require that the district court adopt a reintegration plan before proceeding with the termination of parental rights. We find no error in the district court's decision to terminate parental rights in this case without first offering a reintegration plan.
J.H. also contends on appeal that the district court should have granted her request for a continuance of the termination trial, which she based on a claim of physical- and mental-health issues. Indeed, the district court granted some continuances; the trial of the case was continued when J.H. called 911 to have an ambulance take her to the hospital during trial. But J.H. wouldn't allow the release of medical records so that others could verify her health-related claims, and she has not shown that the district court acted improperly toward her in light of a disability. We find no abuse of discretion in the district court's denial of her final continuance request, and we affirm the district court's judgment.
Factual and Procedural Background
J.H. (Mother) is the natural mother of Q.H., born in 1996, and I.R., born in 1998. These children, along with various siblings, were removed from Mother's care when they were very young and placed with their grandmother in Las Vegas, Nevada. Of Mother's seven children, five of them tested positive at birth for alcohol, marijuana, or cocaine. One child, O.H., born in 2001, died while in Mother's care.
In January 2011, Q.H. and I.R. were removed from their grandmother's care and returned to Mother. By September 2011, there had been one report made to the Department of Social and Rehabilitation Services (SRS) that Mother was physically abusing the children; Q.H. and I.R. denied physical abuse, but they reported that Mother was frequently intoxicated. That fall, a school coordinator contacted Mother about Q.H.'s poor attendance at high school, as the teen had missed nearly half of the school days during the semester; Mother was reportedly not following through on the truancy issue.
On October 25, 2011, Mother called local police asking them to take I.R. into custody for a medical evaluation. During this process, I.R. reported that Mother physically abused both I.R. and Q .H. She also stated that Mother would refuse them food and not allow them to go to school. She also reported that Mother was frequently intoxicated and took prescription medications not prescribed to her. The SRS attempted to locate Q.H., but she was not in school, and Mother did not immediately make Q.H. available for an interview. An adult sibling of the children, S.H., was interviewed and confirmed some of I.R.'s allegations. S.H. also reported that Mother had kicked I.R. and Q.H. out of the house and they had had to stay temporarily with a neighbor.
Based upon these allegations, the district court issued an ex parte order of temporary custody placing both Q.H. and I.R. in protective custody. The State of Kansas filed petitions seeking to have 15–year–old Q.H. and 13–year–old I.R. declared children in need of care (CINC). Shortly after being removed from Mother's home, Q.H. asked to return there; the court ultimately rescinded the temporary custody order as to Q.H. and allowed her to go home. Approximately 2 weeks later, the SRS received a report that Mother had kicked Q.H. out of their home and had left her belongings on the home's front steps. Q.H. again reported to the SRS that Mother was drinking to the point of intoxication every day. As a result, the court again placed Q.H. in protective custody with the SRS.
An initial hearing on the CINC petition was scheduled for November 30, 2011, but Mother requested a continuance for reasons not apparent from the record; the hearing was then rescheduled for December 12, 2011. At the December hearing, the parties asked for an evidentiary hearing on the CINC allegations. The court ordered Q .H. and I.R. to remain in SRS custody and set the matter for a CINC adjudication or termination hearing on March 29, 2012.
In January 2012, the State filed a motion to terminate Mother's parental rights to Q.H. and I.R. In the motion, the State alleged Mother suffered from an emotional, mental, or physical condition that rendered her unlikely to care for the children's needs; that she excessively used intoxicating liquors or dangerous drugs to the degree she was unable to care for the children's needs; and that she physically, mentally, or emotionally neglected the children. The State also relied on evidence that there had been an unexplained death of another child in Mother's care. Finally, the State alleged that Mother had failed to show any effort to adjust her circumstances to meet the needs of the children.
At the combined CINC/termination hearing on March 29, 2012, Mother failed to appear. At the beginning of the hearing, Mother's attorney requested a continuance, asserting that Mother was on bed rest due to medical issues. (A copy of a doctor's note had been faxed to the attorney the afternoon before the hearing.) The State's attorney and guardian ad litem objected to another continuance, citing the number of prior continuances and the emotional impact the delay was having on the children. The court shared the attorneys' concerns about the delay, questioning the validity of Mother's medical issues in light of her repeated refusal to sign documents releasing her medical records. However, the court reluctantly granted Mother's request for a continuance and rescheduled the hearing for May 18, 2012. At the request of the guardian ad litem, the court barred Mother from contacting the children or their schools until the May hearing.
The May 18 hearing commenced with none of the natural parents being present. Accordingly, the State began proffering evidence in support of the termination. The State requested that the court take judicial notice of the SRS's files involving Mother's children dating back to 2002. The State cited the fact that Mother had not had custody of any her of children for most of their lives. The State also asserted that since Q.H. and I.R. had been removed in October and November 2011, Mother had missed 8 of 17 scheduled visitations with the children. In addition, Mother did not have steady employment, though she was pursuing a claim for disability.
About 30 minutes after this hearing started, Mother entered the courtroom. After a short recess, Mother requested a continuance to obtain another attorney so she could be “properly represented.” Mother also requested a continuance because she said she had an ongoing medical condition, was scheduled to have surgery the next week, and was having severe pain. The court denied Mother's request, citing the number of prior continuances and pointing out that Mother had not previously expressed unhappiness with her attorney. The court allowed the State to proceed with its proffer as to the natural fathers, but it struck the proffer as to Mother. The court thereafter found the fathers were unfit and terminated their parental rights.
As the hearing was about to resume as to the issues with Mother, her attorney advised the court that Mother needed to go to the restroom because she was reportedly bleeding. As the State was again presenting files regarding Mother's children from prior CINC cases, Mother returned to the courtroom and called an ambulance for herself. The State objected to another continuance, noting that Mother had consistently refused to sign releases to allow the State to verify her claimed medical issues. After a recess, the judge made a record that he had attempted to get mother to sign a medical release as she was being treated by ambulance personnel. However, Mother only agreed to release her intake assessment. Under the circumstances, the court rescheduled the trial for June 5, 2012. The judge stressed that there would be no more continuances allowed.
Significantly, Mother did not remain at the hospital after being taken there by ambulance. The day after the hearing, she was a passenger in a vehicle stopped by police. Mother was arrested for outstanding traffic warrants and was found with a knife in her possession. In addition, the police found crack-cocaine paraphernalia in the car.
Mother appeared with counsel at the June 5 hearing. Mother again requested a continuance, claiming that she had ongoing physical-health issues and required surgery, as well as mental-health issues because she had run out of her medication. The court denied Mother's request because of the prior delays and her refusal to sign documents fully releasing her medical records to enable the parties to verify her claims.
During the trial, the State presented evidence regarding the CINC cases relating to Mother's children from 2002. One case involved O.H., who died while in Mother's care. Other files reflected that Mother's rights were terminated in 2004 to two other children. A social-service worker testified that several of Mother's children had tested positive for drugs at birth. She also testified about Q.H .'s and I.R.'s reports of abuse by Mother as well as her alcohol and prescription-drug misuse. The home-school coordinator testified about Q.H.'s excessive absenteeism and her making all failing grades while in Mother's care, and he pointed out the significant improvements shown by Q.H. after she was removed from Mother's home. Witnesses established that Mother had missed nearly half of her scheduled visits with Q.H. and I.R. and that Mother was not employed and had failed to provide documentation showing a disability. A witness also testified that Mother claimed to suffer from mental-health issues, but that Mother would not allow release of her records until shortly before the first termination hearing and admitted she had not sought therapy. Evidence was presented that Mother forced I.R. to falsely report abuse by her foster parent. I.R. made the report, but she immediately recanted after leaving Mother's presence.
During her testimony, Mother admitted that many of her children did not live with her for a number of years because she had been addicted to drugs. Mother reported that her substance abuse lasted about 10 years but testified that she had not consumed alcohol since November 2011. Mother denied physically abusing either Q.H. or I.R. and testified that she did not kick the children out of her house. Mother believed she was a good parent. Mother stated she suffered from ADHD, but she was not taking medication at the time of trial because she had run out of it. Mother presented certificates showing she had attended some parenting classes and reported that she had attended several AA and NA meetings. Mother reported that she had never been given a reintegration plan nor told of services she might use to address the issues in the case.
Both Q.H. and I.R. testified at the hearing, saying that they did not wish to return to Mother's home. Q.H. stated that the circumstances with Mother were not good and that her current living conditions with her aunt were very nice. I.R. testified that she was presently living in a psychiatric facility, but that when she was released, she wanted to live with her aunt and Q.H., where she felt safe. I.R. reported that she did not feel safe around Mother.
At the conclusion of the hearing, the district court found there was clear and convincing evidence that both Q.H. and I.R. were children in need of care. The court further found there was clear and convincing evidence that Mother excessively used intoxicating liquors or dangerous drugs, making her unfit; that she had an emotional or mental illness and physical disability, rendering her unfit; and that she had physically, mentally, and emotionally neglected her children. Based on the evidence, the court concluded Mother was unfit by clear and convincing evidence; that her unfitness would unlikely change in the foreseeable future; and that termination of Mother's rights was in the best interests of the children. A journal entry terminating Mother's rights was filed July 16,2012.
Mother timely appealed from the district court's judgment.
Analysis
On appeal, Mother raises two issues. First, she contends that the district court erred in terminating her parental rights when she had not been provided a reintegration plan. Second, Mother contends the district court erred in denying her motion to continue the termination trial and claims that she was not able to fully participate in the proceeding because of her physical- and mental-health issues.
Mother's challenge regarding the failure to offer a reintegration plan primarily raises a legal issue. We independently review any legal conclusions made by the district court, including the interpretation of relevant statutes, without any required deference to the district court. In re A.F., 38 Kan.App.2d 773, 776–77, 172 P.3d 66 (2007), disapproved on other grounds by In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008). As to the continuance, a district court has substantial discretion in controlling the proceedings before it. We review those decisions, including ones regarding continuances, for abuse of discretion and (assuming no legal or factual errors were made) reverse only if no reasonable person would take the view adopted by the district court. In re A.A., 38 Kan.App.2d 1100, Syl. ¶ 3, 176 P.3d 237,rev. denied 286 Kan. 1177(2008).
To the extent that the district court's factual conclusions are at issue (which may be the case with respect to the court's decision not to offer a reintegration plan), the clear-and-convincing-evidence standard must be applied. Generally, when an appellate court reviews the district court's termination of parental rights, we consider whether, after reviewing all the evidence in the light most favorable to the State, we are convinced that a rational fact-finder could have found it highly probable, i .e., by clear and convincing evidence, that the parent is unfit by reason of conduct or condition that renders the parent unable to care properly for the children and that conduct or condition is unlikely to change in the foreseeable future. In re B.D.-Y., 286 Kan. at 705; see K.S.A.2012 Supp. 38–2269(a). We do not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 705. In addition, the court construes the phrase “foreseeable future” in terms of “child time” as opposed to “adult time.” See In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
Mother contends that the district court erred in failing to make efforts to facilitate her reintegration with her children. She cites her desire to keep her rights and her voluntary attendance of parenting classes and AA and NA meetings even though the court never ordered to attend any. Finally, she relies on Q.H.'s testimony that returning to Mother's home was not currently the best for her. She also points to I.R.'s testimony that she loves Mother and although she does not want to live with her, she wants to maintain a relationship with Mother.
Mother cites to no legal authority that mandates that she be given an opportunity for reintegration. K.S.A.2012 Supp. 38–2266(a) provides that a request to terminate parental rights may be filed either in the original child-in-need-of-care petition or in a later motion during the proceeding. In K.S.A.2012 Supp. 38–2264(e) and K.S.A.2012 Supp. 38–2263(d)(l), the legislature has recognized that reintegration may not be a viable alternative in all cases. See also In re Interest of J.G., 12 Kan.App.2d 44, 51, 734 P.2d 1195 (discussing a similar previous position: K.S.A. 38–1565[a] ), rev. denied 241 Kan. 838(1987).
In this case, there was clear and convincing evidence to support the State's claims—and the court's apparent agreement—that reintegration with Mother was not viable. Both Q.H. and I.R. had been placed with their grandmother at a very young age and Mother admitted having suffered from a long-term drug addiction. Mother previously had her parental rights to two other children terminated. In addition, during the approximately 10 months the children lived with Mother, they reported that Mother physically and emotionally abused them and even kicked them out of her home for a period. Mother made no effort to ensure that Q.H. was attending school, even after being contacted by a home-school coordinator. The children reported that Mother was regularly intoxicated and misused prescription drugs. Even when Q.H. was allowed to return to Mother's home after the child-in-need-of-care petition was filed, Mother reportedly kicked the teenager out of the house within 2 weeks.
Moreover, Mother never expressed interest in having a reintegration plan, nor did her conduct reflect a willingness to make reintegration efforts. Mother did not attend case planning meetings and never requested a reintegration plan. Although Mother repeatedly justified her continuances because of medical issues, she also repeatedly refused to sign medical releases that would have allowed the parties and the district court to determine the legitimacy of Mother's requested delays. Finally, she missed nearly one-half of the scheduled visitations with her children prior to the termination motion.
Although Mother testified that she showed her interest in reintegration, the district court found Mother's evidence questionable. The district court noted that although Mother presented certificates indicating that she attended parenting classes, most of the certificates failed to establish that she had completed more than a few hours of each program, and all of the certificates were for classes in the 2 months before the final hearing. Moreover, Mother forgot to bring the sign-in sheets supporting her claims that she attended “several” NA and AA meetings. So the district court's decision against reintegration was supported by clear and convincing evidence in the record.
Mother also contends the district court erred in denying her request for another continuance because she was prevented from fully participating in the trial due to her physical- and mental-health issues. In addition, Mother suggests that the district court violated K.S.A.2012 Supp. 38–2201(c), which prohibits discrimination against a parent on the basis of disability.
But Mother's claim that she was prevented from participating due to her health issues isn't supported in our record. Mother answered questions at the trial in a coherent manner without any indication that she was either unable to understand the proceedings or unable to provide all the information she wished to present. Nor did Mother present evidence of any health condition that was preventing her from fully participating.
Mother's suggestion of discrimination in violation of K.S.A.2012 Supp. 38–2201(c) is the sort of brief reference that, when contained in an appellate brief, may be disregarded as not truly preserving or presenting an appellate issue. See Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 714, 216 P.3d 170 (2009). But we need not dismiss the argument on that basis because a look at the language of K.S.A.2012 Supp. 38–2201(c) shows that the district court did not violate the statute.
That statute precludes the termination of parental rights based on a parent's disability unless the disability is related to the harms the child has suffered that have led to the court's order:
“The disability of a parent shall not constitute a basis for a determination that a child is a child in need of care, for the removal of custody of a child from the parent, or for the termination of parental rights without a specific showing that there is a causal relation between the disability and harm to the child.” K.S.A.2012 Supp. 38–2201(c)(1).
Here, the district court concluded that Mother suffered from emotional illness, mental illness, mental deficiency, or physical disability “of such duration or nature as to render [her] unlikely to care for the ongoing physical, mental and emotional needs” of the children, citing to K.S.A.2012 Supp. 38–2269(b)(1). Mother had suffered long-term drug addiction that had left her unable to care for her children, and the district court could reasonably conclude—based on clear and convincing evidence—that the condition was unlikely to change anytime in the foreseeable future.
Cases in which parental rights are terminated are difficult ones for all involved. We recognize that Mother is disappointed with the outcome here, but we find no error in the district court's rulings.
We therefore affirm the district court's judgment.