In re D.S. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,085
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of D.S.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Opinion filed May 28,
2021. Reversed and remanded with directions.
Chadler E. Colgan, of Colgan Law Firm, LLC, of Kansas City, for appellant.
No brief filed by appellee.
Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: The natural mother of D.S. (Mother) appeals from the district
court's finding of unfitness and termination of her parental rights, arguing: (1) The
evidence did not support a finding of unfitness and (2) termination of her parental rights
was not in D.S.'s best interests. As explained below, we agree with Mother. We reverse
and remand for further proceedings.
FACTS
In July 2018, a private petition for adjudication of a child in need of care (CINC)
was filed concerning D.S., then 16 years old. The petition alleged Mother ordered D.S. to
leave her home in June 2018 and had not spoken to him in a month. The petitioner, D.S.'s
paternal grandmother (Grandmother), further alleged D.S.'s natural father (Father) was in
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prison, had been absent for more than a year, would remain absent for several more
months, and had not provided financial or emotional support for D.S. for several years.
The petition sought the appointment of Grandmother as custodian for D.S. The district
court appointed a guardian ad litem (GAL) for D.S. Father filed a response, agreeing an
emergency existed and Grandmother was a proper custodian for D.S. He further alleged
Mother had ordered D.S. out of her home on several occasions and had been physically
and emotionally abusive.
In October 2018, the district court held a hearing, adjudicated D.S. a CINC, and
appointed Grandmother as custodian. At the November 2018 review hearing, the district
court ordered the GAL to begin preparing a reintegration plan and for Mother and D.S. to
begin participating in family counseling. The district court further assigned a court-
appointed special advocate (CASA), Cathy Stueckemann, for D.S. In December 2018,
another hearing was held, and the district court ordered the GAL to continue working on
a reintegration plan and ordered family counseling to continue. At the January 2019
hearing, the district court ordered family counseling to continue but suspended supervised
visits. Grandmother filed a motion in March 2019, asking the district court to find
reintegration was no longer viable, terminate Mother's parental rights, and appoint
Grandmother as permanent custodian.
At the review hearing in June 2019, the district court found reintegration was no
longer viable. An evidentiary hearing for determination of Mother's parental rights was
set for September 2019. Mother testified D.S. had lived with her until June 2018. She
claimed D.S. was abusive toward his younger siblings—ages 9, 10, and 11—who lived in
the family's home. Mother described an incident in June 2018 where D.S. caused
significant damage to his adult sister's apartment. As a result, D.S. was charged with
criminal damage to property. Around that time, Mother had been hospitalized due to
illness. When she got out of the hospital, Mother tried to get D.S. to go to her home. But
D.S. caused significant damage to Mother's home and ran away. Mother promptly filed a
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police report, indicating D.S. was a runaway, and she did not learn of his whereabouts for
a month.
Mother was aware D.S. had multiple court cases and was going to be in juvenile
court in Leavenworth County. Mother attended a hearing at what she believed was the
scheduled time, but D.S. was not present. She learned the hearing had actually occurred
earlier in the morning and D.S. had been released to Grandmother's custody after the
hearing. Mother claimed Grandmother never contacted her to inform Mother of D.S.'s
whereabouts. Mother was aware D.S. wished to remain in Grandmother's home. She
initially attended visits with D.S. as arranged by Stueckemann; however, D.S. would not
talk to Mother during the visits, so family therapy was suggested.
Mother wanted to do family therapy with Walt Louis, who she had previously
used for the same purpose while D.S. was living with her. But Grandmother wanted Mary
Spickelmier to provide therapy because she was already doing individual therapy for D.S.
Mother complained Spickelmier did not communicate with her regarding D.S.'s other
doctor or dental appointments. She indicated she discontinued therapy sessions with
Spickelmier in February or March 2019 because she was unable to arrange for payment
for the sessions. Mother testified she had not had any contact with D.S. since their last
therapy session. She had not contacted D.S. by telephone, text, or social media. And she
had not paid for any of D.S.'s care, nor had she offered to reimburse Grandmother for any
such costs. Mother's testimony reflected she had done little to ensure D.S. was physically
cared for since July 2018 while also recognizing D.S. was living with Grandmother.
However, Mother asserted she was never given a court order for support payments
to Grandmother, nor was she provided with a court-approved reintegration plan. Mother
believed she was emotionally supporting D.S. by asking for therapy and visits through
Stueckemann. But Mother admitted she had only met with Stueckemann one time at her
office and claimed she was never contacted for another meeting. Mother was not
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surprised to learn D.S. was doing much better in Grandmother's custody, and she did not
contest Stueckemann's report stating D.S. was much better overall living with
Grandmother.
Stueckemann testified she had been appointed as D.S.'s CASA advocate to be a
voice for him in court and look after him. Stueckemann stated she met with Mother once
at her office and subsequently requested a home visit through texts and phone calls to
Mother, but Mother made it clear she did not want Stueckemann coming to her home.
Stueckemann explained to Mother she needed to come to her home and make
observations for her reports in order for a reintegration plan to work. Stueckemann
submitted numerous reports detailing her interactions with D.S. and others involved in
the case. She noted D.S. made considerable progress while in Grandmother's care and
showed no regression over the time she observed—November 2018 through September
2019. Stueckemann recommended D.S. remain in Grandmother's custody.
Grandmother testified she saw D.S. walking on the street in Leavenworth in June
2018. She stopped to talk to him, and D.S. told her Mother had ordered him out of her
house. Grandmother gave D.S. her phone number and some money. Grandmother later
learned D.S. had an outstanding juvenile warrant and picked him up so he could turn
himself in to the authorities. The following day, a court hearing was scheduled for 10
a.m., but D.S. had been brought over much earlier. Because Grandmother was the only
relative present, the district judge released D.S. to her custody at the conclusion of the
hearing. Grandmother admitted she did not contact Mother to inform her of D.S.'s
whereabouts. She generally described a tense history with Mother and did not want
Mother to have D.S. removed from Grandmother's home.
D.S.'s older sister, A.S., also testified at the termination hearing. A.S. generally
corroborated Mother's account of D.S.'s abusive behavior toward his siblings and
destruction of property in Mother's home. She further stated Mother had provided for her
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children and sought assistance as needed—particularly, using Louis for family therapy.
According to A.S., Mother had a fairly strict set of rules and expectations for the
children, which D.S. frequently would not follow. A long-time family friend, D.J., also
testified, indicating she had known Mother since she was 13 years old and had known
D.S. his entire life. At various times, Mother and the children had stayed with D.J. She
never observed any physically or emotionally abusive conduct by Mother toward D.S. or
any of the other children. D.J.'s only concern was Mother's strict rules and expectations
for the children.
After the conclusion of the evidence, Mother indicated she would consent to D.S.
remaining in Grandmother's custody but did not believe her parental rights should be
terminated. She further indicated she was willing to sign a permanent custodianship for
D.S. to remain with Grandmother. The parties agreed they would prepare the necessary
documentation to do so, and the district court set the following Friday as the deadline to
submit documentation for entry of final orders. However, Mother never signed or filed a
consent to permanent custodianship, and the district court entered a finding of unfitness
and termination of parental rights in November 2019. The district court found Mother
was unfit based on the following statutory factors:
• Conduct toward the child of a physically or emotionally abusive nature under
K.S.A. 2020 Supp. 38-2269(b)(2);
• Failure of reasonable efforts by appropriate public or private agencies to
rehabilitate the family under K.S.A. 2020 Supp. 38-2269(b)(7);
• Lack of effort on the part of Mother to adjust her conduct of conditions to meet
the needs of the child under K.S.A. 2020 Supp. 38-2269(b)(8); and
• The child had been out of the home under court order in the custody of the
Secretary for the Kansas Department for Children and Families (DCF) for 15 of
the prior 22 months under K.S.A. 2020 Supp. 38-2269(b)(9).
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The district court made additional findings that:
"The child has been out of the mother's home since June 9, 2018, residing with
[Grandmother], during which time the mother has failed to assume care of the child in the
mother's home when able to do so; failed to maintain regular visitation, contact or
communication with the child or the custodian of the child, failed to carry out a
reasonable plan directed toward reintegration of the child into her home; failed to pay any
costs of substitute care or maintenance of the child based on her ability to pay; and has
otherwise failed to assume the duties of a parent toward the child. Furthermore, the
relationship between the child and mother has deteriorated to the point . . . there is open
hostility by the child directed toward the mother, based upon prior actions by the mother,
which counseling and therapy has failed to remedy and it is impossible for the
mother/child relationship to exist."
The district court held Mother's parental rights were terminated consistent with
D.S.'s best interests. It noted Father had previously consented to the appointment of
Grandmother as permanent custodian. Mother timely appealed. Father is not a party to
this appeal and has not filed a brief. Grandmother has also not filed a brief. Based on
D.S.'s age at the time of the termination hearing (17 years old), he is no longer a minor.
ANALYSIS
Mother argues the district court erred in finding her unfit. She further argues the
district court erred in terminating her parental rights. As previously noted, D.S. is no
longer a minor child.
Standard of review and applicable legal principles
A parent has a constitutionally recognized right to a parental relationship with his
or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d
6599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Accordingly,
parental rights for a child may only be terminated upon clear and convincing proof of
parental unfitness. K.S.A. 2020 Supp. 38-2269(a); Santosky, 455 U.S. at 769-70; In re
R.S., 50 Kan. App. 2d 1105, 1113, 336 P.3d 903 (2014).
As provided in K.S.A. 2020 Supp. 38-2269(a), the district court must find "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." In reviewing a district court's termination
of parental rights, we view all the evidence in the light most favorable to the prevailing
party to determine whether a rational fact-finder could have found it highly probable by
clear and convincing evidence that parental rights should be terminated. In re K.W., 45
Kan. App. 2d 353, 354, 246 P.3d 1021 (2011). In making this determination, 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.
Upon making a finding of unfitness of the parent, the district court must "consider
whether termination of parental rights . . . is in the best interests of the child. In making
the determination, the court shall give primary consideration to the physical, mental and
emotional health of the child." K.S.A. 2020 Supp. 38-2269(g)(1). The district court
makes the best-interests determination based on a preponderance of the evidence, which
is essentially entrusted to the district court acting within its sound judicial discretion. See
We review a court's best-interests determination for an abuse of discretion,
"which occurs when no reasonable person would agree with the district court or the
district court premises its decision on a factual or legal error. 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. [Citation
omitted.]" In re R.S., 50 Kan. App. 2d at 1116.
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The party asserting the trial court abused its discretion bears the burden of showing such
abuse of discretion. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan.
906, 935, 296 P.3d 1106 (2013).
Termination of Mother's parental rights not warranted
The district court relied on four statutory factors to find Mother unfit, none of
which are supported by clear and convincing evidence when viewed in a light most
favorable to the prevailing party below.
The district court first found Mother engaged in cruel or abusive conduct toward
D.S. See K.S.A. 2020 Supp. 38-2269(b)(2). But the district court provided no pertinent
factual findings to support this conclusion, and there was no evidence presented showing
Mother engaged in such conduct. Specifically, there was no testimony showing Mother
physically or emotionally abused D.S. There were never any allegations of sexual abuse.
There was an allegation in Grandmother's motion for termination of parental rights that
D.S. was upset Mother was attempting to regain custody of him. Father made
unsubstantiated and conclusory allegations against Mother in his pleadings; however,
Father never testified at any time during the proceedings.
With no factual findings by the district court, it was legally erroneous to conclude
Mother physically or emotionally abused D.S. Reasonable efforts by the Mother to regain
custody of her child cannot reach the level of emotionally abusive conduct. Moreover, the
statements of Father are unsubstantiated and cannot be considered.
The district court's second basis, finding there was a failure of reasonable efforts
by appropriate public or private agencies to work toward reintegration of D.S. into
Mother's home, is not supported by the record. See K.S.A. 2020 Supp. 38-2269(b)(7).
The record fails to reflect any real agency involvement in this case. The usual agencies
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such as DCF, St. Francis Ministries, and KVC were not involved; this was a private
action initiated by Grandmother. Stueckemann, as D.S.'s CASA, described limited
contact with Mother, but her testimony did not reflect any concrete case plan tasks
Mother failed to carry out. The record fails to reflect any testimony regarding the
parameters of a case plan or even if such plan existed. The district court ordered the GAL
to prepare a reintegration plan at the November and December 2018 hearings. However,
Mother never received a court-approved reintegration plan, and we can find no court-
approved plan in the record.
There was testimony regarding Mother's past use of Louis to help with D.S. But
Louis did not testify at the termination hearing. There was also testimony regarding
Mother and D.S. attending therapy with Spickelmier, but Spickelmier did not testify at
the termination hearing. In short, there was little to no evidence presented about any
specific tasks Mother needed to complete to get D.S. back into her home, and no
evidence was presented regarding the nature of therapy; its success, if any; and what
further benefit, if any, additional therapy could or would have for the family. The district
court's reliance on this factor is not supported by clear and convincing evidence even
when considered in a light most favorable to the party prevailing below.
The district court's third finding may have some merit, but we do not find it rises
to the level of clear and convincing evidence. Here, the district court relied on K.S.A.
2020 Supp. 38-2269(b)(8)—"lack of effort on the part of the parent to adjust the parent's
circumstances, conduct or condition to meet the needs of the child." Prior to leaving
Mother's home, D.S. was a difficult child who got into legal trouble, fought with his
siblings, and did poorly in school. Stueckemann testified D.S.'s demeanor changed
considerably when he began living with Grandmother. He did much better in school,
expressed excitement and optimism about his future, and seemed to appreciate the
importance of working hard and getting an education.
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Mother admitted she had not had any contact with D.S. since discontinuing
therapy in February or March of 2019. Mother further admitted she had not paid for any
of the costs for D.S.'s care since he began living with Grandmother, nor had she offered
to reimburse Grandmother for those expenses.
Mother indicated she only met once with Stueckemann during the pendency of the
case. Mother also admitted to having very little contact with D.S.'s school and essentially
no contact with Grandmother during the pendency of the case. When asked why she had
so little contact, Mother seemed to suggest Grandmother and the school should have
contacted her. When asked why she discontinued therapy with Spickelmier, Mother
offered somewhat confusing answers. The specifics of this point are unclear from the
record. However, in her brief, Mother admits she did not pay any costs for therapy not
covered by her insurance and stopped attending therapy "because of the arrangements on
who was responsible for payment." At the termination hearing, Mother expressed
confidence in her ability to provide for D.S. and claimed she had sufficient income to do
so. Although unemployed, Mother testified she received approximately $2,600 per month
from social security disability payments and child support from the fathers of her other
children.
Mother described very minimal efforts, if any, to work toward reintegration with
D.S. on her own initiative. But what plan was she to comply with? The record further
fails to reflect what, if anything, she did to cause D.S.'s social and behavioral problems
before he ran away from her home and ended up living with Grandmother. A family
friend, D.J., testified she never saw Mother physically or emotionally abuse D.S. or any
of the children; her only concern was Mother was very strict with her rules for the
children. D.S.'s older sister, A.S., described Mother's efforts to parent the children came
with strict expectations and rules. According to A.S., D.S. would not listen to Mother or
follow her rules, D.S. picked on the other children, and D.S. destroyed property in
Mother's home. A.S. testified Mother was able to provide for the children and reached out
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for assistance as needed, such as counseling with Louis. We find the evidence in the
record does not sufficiently support the district court's conclusion Mother failed to make
efforts to adjust her circumstances, conduct, or condition to meet D.S.'s needs.
Finally, the district court found K.S.A. 2020 Supp. 38-2269(b)(9) applied.
However, that factor does not apply unless the minor child has been in an out-of-home
placement in the custody of the Secretary of DCF for 15 of the past 22 months. While
D.S. had been out of Mother's home for 13 to 14 months at the time of the termination
hearing, D.S. was never in DCF custody because this action arose from a private petition
filed by Grandmother, who was appointed as custodian. This last statutory factor was
legally and factually erroneous.
Although D.S. improved while living with Grandmother, his improvement does
not justify termination of Mother's parental rights by clear and convincing evidence, even
when considered in a light most favorable to the party prevailing below. Without a
concrete plan for Mother to follow, it is hard to find she failed to adjust to meet the needs
of D.S. As the record reflects, D.S. was 17 years old and was being difficult. He failed or
refused to participate in family counseling with Mother. It appears he liked living with
Grandmother and was doing whatever it took on his part to continue living with
Grandmother. Again, there was never a plan established for Mother to work toward to
meet the needs of D.S.
The district court provided some additional findings. Most of these additional
findings, to varying extents, are not supported by the record. The basis for the district
court's finding D.S. displayed "open hostility toward [Mother]" is unclear. D.S. did not
testify at the termination hearing. But this finding may have general support as an
inference based on A.S.'s testimony regarding D.S.'s defiance of Mother's rules and
Grandmother's and Stueckemann's testimony regarding D.S.'s apprehension about
returning to Mother's home. However, we can find no support in the record for the district
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court's conclusion such hostility was "based upon prior actions of the mother." The record
fails to show how "counseling and therapy failed to remedy" the issues between D.S. and
Mother since neither of the therapists who worked with the family testified at the
termination hearing.
There was little to no evidence reflecting Mother's prior actions caused D.S. to
leave her home, and Mother did not affirmatively do anything to worsen the parent-child
relationship after D.S. left. Here, the issue is almost entirely what Mother did not do, as
opposed to anything Mother did. The district court's rationale for finding Mother's
parental rights should be terminated is not supported by clear and convincing evidence in
the record even when considered in a light most favorable to the party prevailing below.
Best interests of the child
Because we have found termination of Mother's parental rights was not supported
by clear and convincing evidence in the record, we need not address whether termination
was in D.S.'s best interests.
The district court erred by finding there was clear and convincing evidence to find
Mother unfit. We therefore reverse the district court's finding of unfitness and order
terminating Mother’s parental rights and remand the case for the district court to
determine whether further proceedings are required or if the matter should be dismissed
as set out in K.S.A. 2020 Supp. 38-2203(c)-(d).
Reversed and remanded with directions.
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