In re A.C. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,950
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of A.C.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Barton District Court; STEVEN E. JOHNSON, judge. Opinion filed May 15, 2020.
Affirmed.
Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Great Bend, for
appellant natural mother.
Rita A. Sunderland, assistant county attorney, and M. Levi Morris, county attorney, for appellee.
Before GARDNER, P.J., ATCHESON and SCHROEDER, JJ.
PER CURIAM: D.C. (Mother) appeals the district court's termination of her
parental rights to her daughter A.C., born in 2008. Mother claims there was insufficient
evidence to support the district court's findings she was an unfit parent and her unfitness
was unlikely to change in the foreseeable future. While the case was pending for over 17
months, Mother never had one clean drug test to qualify for visitation time with A.C. and
failed to complete most of the reintegration plan tasks. Clear and convincing evidence
was produced by the State to support the termination of Mother's parental rights to A.C.
We affirm.
1
FACTS
In 2017, the Kansas Department for Children and Families (DCF) initiated contact
with Mother upon receiving three reports alleging Mother physically abused her eight-
year-old daughter, A.C., and one report that A.C. was not properly attending school.
After issuing an Order of Protective Custody, the district court later granted an Order of
Temporary Custody placing A.C. in the custody of DCF on December 18, 2017. The
State then petitioned for the district court to declare A.C. to be a child in need of care
(CINC). Mother failed to appear at a February 2018 adjudication hearing, and the district
court entered a default judgment adjudicating A.C. to be a CINC. The district court
adopted DCF's permanency plan and ordered the child to remain in DCF custody. A.C.'s
father could not be located, and in his absence a default judgment was also entered
against him.
As part of the permanency plan approved by the district court, Mother was ordered
to complete a drug and alcohol evaluation and to pass three consecutive drug tests before
she could visit with A.C. But the district court granted St. Francis—a foster care provider
contracted by DCF to help supervise cases—the discretion to allow visitation.
In the fall of 2018, the district court determined reintegration was no longer a
viable option. The State moved to terminate Mother's and Father's parental rights on
January 24, 2019. Father could not be found, and his parental rights were terminated in
April 2019. At Mother's termination hearing on May 28, 2019, the State presented five
witnesses, including Mother. Mother and her fiancé testified against termination. The
district court took judicial notice of the file including reports of progress while the matter
was pending.
2
The State's Case
Mother testified she had two other children, neither of whom lived with her. One
had been adopted by the grandparents, and the other child lived with them. Mother
admitted she needed to have three clean consecutive drug tests to have visitation time
with A.C., but she failed to satisfy this requirement. She refused to submit to drug testing
when workers showed up at her house, but the record reflects she did admit at one visit
she would be positive for THC if tested. Just three weeks before her termination trial, she
admitted to using methamphetamine and tested positive for methamphetamine and
MDMA. Mother also admitted she received letters in the mail from St. Francis and had
several people come to her home claiming to be her caseworker or family support
worker, but she declined to meet with them.
Next, Tara Elliott, a family support worker for St. Francis, testified she was
assigned to Mother's case for three or four months in 2018. She attempted to contact
Mother every month by letter, phone call, and text message but generally had trouble
contacting her or getting any response. Either she or another worker stopped by Mother's
home weekly. Generally, they could not contact Mother, or she would refuse a drug test.
Elliott testified she met with Mother only one time at her home. The house had clutter
covering most surfaces, and there were no lights on in the home. According to Elliott,
Mother said her electricity was off. Elliott had stopped by to see Mother and to obtain a
drug swab, but Mother refused.
Lanie Trendel, a child protection specialist with DCF, testified about the abuse
allegations and investigations prompting A.C.'s removal from the home. She testified
about her contact with Mother and her unwillingness to cooperate, take drug tests, or
utilize the resource services available in Barton County or in the surrounding counties.
She also explained to Mother that her cooperation with letting workers into the house and
taking drug tests would help, but she observed Mother's behavior did not change.
3
Sandy McMullen, a family support worker with St. Francis, testified she stopped
by Mother's home to introduce herself and conduct a random drug test. Mother refused to
meet with her, expressed frustration over McMullen presenting herself without first
calling, and closed the door.
Cary Henry, a licensed social worker with St. Francis and the assigned case
manager starting in July 2018, testified her role was to oversee cases and to work with the
children. Henry went to Mother's home during the month after she was assigned to the
case to introduce herself, but she could not make contact. She attempted additional
contact with the Mother as the case progressed without success. According to Henry, at
least five different family support workers made attempts to meet Mother at her home,
but, to Henry's knowledge, no one was given permission by Mother to sit down with her
to go over her case plan. Henry testified Mother failed to attend four scheduled drug and
alcohol evaluations. Henry also testified the records showed Mother had not completed
her drug and alcohol evaluation before the trial.
Henry's testimony added to the mix by showing Mother failed to complete many
case plan tasks, including passing three consecutive drug tests, complying with random
drug tests, permitting walk-throughs of her home, maintaining contact with St. Francis at
least once a month, and completing a parenting class. According to Henry, Mother never
qualified for visits with A.C.
Mother's Defense
Mother testified she was living with her fiancé who worked for an oil company.
She entered as an exhibit her City of Russell utilities account for the home she resided in
when Elliott visited her in September 2018, reflecting the utilities were on. She
maintained her home was a suitable environment for A.C. during the case.
4
Mother further testified St. Francis never explained what she needed to do to get
A.C. back. She claimed she did not know who her case manager was until she met Henry
in May 2019, shortly before her termination trial. Mother further claimed St. Francis
employees came by her home unannounced and without identification to ask for drug
tests but not to review her case plan. She alleged she never received phone calls from St.
Francis, and no one answered the phone when she called them.
Mother testified that in March 2018, she engaged in mental health services and
drug and alcohol services without any assistance from St. Francis. She later quit because
she did not have reliable transportation at the time. But she periodically spoke to or met
in person with her drug and alcohol counselor and therapist. By the May 2019 case plan
meeting, she had completed several case plan tasks, including obtaining a birth certificate
for herself and A.C., obtaining a social security card and driver's license, and finding
stable housing that was clean, livable, and up to code. She stated she told Henry she
would provide proof at their next meeting in June.
Mother's fiancé also testified, stating he made enough money to provide for both
himself and Mother.
District Court's Decision
The district court found clear and convincing evidence Mother physically abused
A.C. based on A.C.'s disclosure to her teachers and case workers and various marks on
the child, coupled with A.C.'s refusal to allow photos of her injuries to be taken because
she was concerned she would get in trouble for making statements to the authorities about
her mother. The district court also found Mother's drug use alone supported a finding of
unfitness, based on the fact Mother had 33 opportunities to test with St. Francis and she
either could not be contacted or refused testing. When Mother did submit to court-
ordered drug tests three weeks before trial, she tested positive for both methamphetamine
5
and MDMA. The district court also found Mother failed to obtain the court-ordered drug
and alcohol evaluation, even though Mother blamed the failure on St. Francis and DCF.
Next, the district court found the agencies' efforts were reasonable given Mother's
uncooperative attitude, her failure to maintain contact with St. Francis, her refusal to
submit to drug testing, and her refusal to allow workers into her home. The district court
also found Mother failed to maintain a home suitable for a child. The district court went
on to find Mother made "no substantial effort whatsoever" to reintegrate, failed to
cooperate regarding the reintegration plan, and simply refused to follow any of the
conditions set out in the plan—especially the drug treatment and having clean drug test
results—so she could start visitation and reintegration. Based on her past behavior and
lack of case progress, the district court found by clear and convincing evidence Mother's
unfitness currently existed and was unlikely to change in the foreseeable future. The
district court also determined termination of Mother's parental rights was in A.C.'s best
interests.
Mother timely appeals. Father does not participate in this appeal.
ANALYSIS
The revised Kansas Code for Care of Children, K.S.A. 2019 Supp. 38-2201 et
seq., governs termination of parental rights proceedings. 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 599 (1982); In re B.D.-Y., 286 Kan. 686,
697-98, 187 P.3d 594 (2008) (citing Santosky). The right is a constitutionally protected
liberty interest. See Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d
49 (2000) (substantive liberty interest); Pierce v. Society of the Sisters, 268 U.S. 510,
534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (recognizing "the liberty of parents and
guardians to direct the upbringing and education of children under their control").
6
Accordingly, the State may extinguish the legal bond between a parent and child only
upon clear and convincing proof of parental unfitness. K.S.A. 2019 Supp. 38-2269(a);
Santosky, 455 U.S. at 769-70; In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903(2014).
The State must prove the parent unfit "by reason of conduct or condition" making
him or her "unable to care properly for a child and the conduct or condition is unlikely to
change in the foreseeable future." K.S.A. 2019 Supp. 38-2269(a). The statute contains a
nonexclusive list of nine conditions that singularly or in combination would amount to
unfitness. K.S.A. 2019 Supp. 38-2269(b), (f).
In reviewing a district court's determination of unfitness, an appellate court must
be convinced a rational fact-finder could have found that decision "highly probable," i.e.,
supported by clear and convincing evidence. In re B.D.-Y., 286 Kan. at 705. The
appellate court must view the evidentiary record in the light most favorable to the State. It
cannot reweigh conflicting evidence, pass on the credibility of witnesses, or otherwise
independently decide disputed questions of fact. 286 Kan. at 705.
Having found unfitness, the district court must then decide whether, by a
preponderance of the evidence, termination of parental rights is in the child's best
interests. K.S.A. 2019 Supp. 38-2269(g)(1); In re R.S., 50 Kan. App. 2d at 1116. That
decision is left to the district court's sound judicial discretion. An appellate court only
steps in where the district court abuses its discretion by ruling in a way no reasonable
person would agree or by basing its decision on a factual or legal error. 50 Kan. App. 2d
at 1116.
7
Statutory Factors Considered
Here, the district court found five statutory factors established Mother's unfitness:
• K.S.A. 2019 Supp. 38-2269(b)(2)—"conduct toward a child of a physically,
emotionally or sexually cruel or abusive nature;"
• K.S.A. 2019 Supp. 38-2269(b)(3)—"the use of intoxicating liquors or
narcotic or dangerous drugs of such duration or nature as to render the
parent unable to care for the ongoing physical, mental or emotional needs
of the child;"
• K.S.A. 2019 Supp. 38-2269(b)(7)—"failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family;"
• K.S.A. 2019 Supp. 38-2269(b)(8)—"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
• K.S.A. 2019 Supp. 38-2269(b)(9)—"whether, as a result of the actions or
inactions attributable to the parent and one or more of the factors listed in
subsection (c) apply, the child has been in the custody of the secretary and
placed with neither parent for 15 of the most recent 22 months beginning
60 days after the date on which a child in the secretary's custody was
removed from the child's home."
The district court also applied the presumption of unfitness under K.S.A. 2019
Supp. 38-2271(a)(5), which provides unfitness is presumed if the State establishes, by
clear and convincing evidence, the child has been in court-ordered out-of-home
8
placement for a "cumulative total period of one year or longer and the parent has
substantially neglected or willfully refused to carry out a reasonable plan, approved by
the court, directed toward reintegration of the child into the parental home." On appeal,
Mother now challenges the district court's findings for each factor, including the
presumption of unfitness, to terminate her parental rights.
Abusive Conduct
The district court applied K.S.A. 2019 Supp. 38-2269(b)(2). DCF received three
reports alleging Mother physically abused A.C. At trial, Trendel testified DCF received a
report of physical abuse in August 2017, alleging Mother hit A.C. with a wooden board
in the front yard of their home, causing A.C. to yell for help. This report was
unsubstantiated by DCF. Though witnesses reported seeing this event occur, both A.C.
and Mother denied it ever happened, and there was no visible injury.
In October 2017, A.C. reported another incident of physical abuse. Mother became
angry when A.C. did not let the dog out and it had an accident in the house. Mother threw
A.C. against the wall, and A.C. fell and hit her face on a baby gate. Trendel testified a
worker visited A.C. in the morning at school and saw her holding an ice pack to the left
side of her swollen and red face. A.C. expressed fear that her Mother would find out she
reported her. She told DCF she felt safe to go home and did not want to go to foster care
because Mother told her child molesters kidnap kids and put them in foster care. DCF
workers asked A.C. if they could take a picture of the injury, but A.C. refused to remove
the ice pack from her face. When law enforcement officers arrived in the afternoon, there
was no visible injury. DCF employees and law enforcement officers went to the home
later that day. Mother instructed A.C. to tell them what happened to her face, and A.C.
said she faceplanted. Mother denied hitting A.C. and stated A.C. lies to get herself out of
trouble. Trendel testified this report was unsubstantiated by DCF.
9
In December 2017, DCF received a third report alleging past physical abuse by
Mother. The reporter saw A.C. with a handprint mark on her face, suggesting Mother had
hit her. A.C. reported fearing her mother. But both Mother and A.C. denied any physical
abuse. Trendel testified this report was unsubstantiated by DCF because it concerned past
physical abuse and there was no visible injury by the time DCF could investigate.
Mother contends that because these allegations of physical abuse were
unsubstantiated by DCF under a preponderance of the evidence standard, the district
court clearly erred by finding clear and convincing evidence the abuse occurred. Mother's
argument is unpersuasive. "Clear and convincing evidence [is] that which is sufficient to
establish that the truth of the facts asserted is 'highly probable.'" In re B.D.-Y., 286 Kan.
at 696. Here, the State presented the facts surrounding each of the alleged abusive
situations, and the district court also considered the circumstantial nature of the evidence
and the way the child reacted to each event.
During DCF's investigation, multiple individuals claimed to have seen or heard
Mother striking A.C. with a wooden board. Another individual claimed to have witnessed
a handprint mark on A.C.'s face. One report came from A.C. herself, and a DCF worker
observed A.C.'s face was red and swollen after this incident. A.C. made several
statements indicating she feared being taken to foster care and feared her Mother getting
arrested.
A decision may be supported by circumstantial evidence, if such evidence
provides a basis for a reasonable inference by the fact-finder regarding the fact in issue.
Circumstantial evidence, in order to be sufficient, need not exclude every other
reasonable conclusion. See State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016);
Friedman v. Kansas State Board of Healing Arts, 296 Kan. 636, 668-69, 294 P.3d 287(2013). Viewing the evidence in the light most favorable to the State, a reasonable fact-
finder could find it "highly probable" Mother physically abused A.C.
10
Drug and Alcohol Use
The district court found K.S.A. 2019 Supp. 38-2269(b)(3) applied regarding the
use of dangerous drugs "of such duration or nature as to render the parent unable to care
for the ongoing physical, mental or emotional needs of the child." Mother argues the
State failed to show her drug use impeded her ability to parent. But the State does not
have to provide direct evidence a parent's conduct is due to drug use if sufficient evidence
shows that drug use impeded reintegration. See In re J.L., No. 117,529, 2018 WL
1247167, at *3 (Kan. App.) (unpublished opinion), rev. denied 308 Kan. 1594 (2018).
There is sufficient evidence to show drug use impeded Mother's reintegration with
A.C. Mother was under court order to pass three consecutive drug tests before she could
visit with A.C. During the 17 months as the case progressed, Mother never had a clean
drug test and St. Francis employees unsuccessfully attempted to drug test Mother 33
times. Of those attempts, Mother agreed to meet with the workers only eight times and
refused drug testing all eight times. Mother consented to testing in January 2018 and
tested positive for methamphetamine and amphetamines. She also tested positive for
methamphetamine and MDMA in May 2019, three weeks before her termination hearing.
Because she never completed three clean consecutive drug tests, Mother never qualified
for supervised visits with A.C. during the case. Without visitation during the 17 months
A.C. was out of her home, Mother could not complete several case plan tasks aimed at
observing her behavior during visits to reintegrate A.C. into her home. Mother testified
she met with her drug and alcohol counselor sporadically and dropped out of care at one
point for lack of transportation. Henry, one of her supervising case managers during the
17 months A.C. was out of the home, testified Mother's drug and alcohol counselor
reported Mother had not yet completed her drug and alcohol evaluation.
11
The evidence, when viewed in the light most favorable to the State, supports the
district court's findings. A reasonable fact-finder could find it highly probable Mother—
who had consistently refused testing, had not substantially participated in drug and
alcohol counseling, and had tested positive for methamphetamine and MDMA three
weeks before the termination hearing—was unfit to parent A.C. based on her continued
drug use.
Failure of Reasonable Efforts
The district court found K.S.A. 2019 Supp. 38-2269(b)(7) applied because of the
failure of reasonable efforts expended by both DCF and St. Francis to provide Mother
with the opportunity to reintegrate with A.C. When reviewing this factor, we look at the
efforts made by the agencies involved to help rehabilitate the family. Mother contends
DCF and St. Francis failed to use reasonable efforts to rehabilitate the family because
they did not attempt to help her complete other case plan tasks and solely focused on
obtaining drug tests.
The agencies involved are obligated to use reasonable efforts to reintegrate a child
with his or her parents. The agencies' goal is to support the parent activities to accomplish
case objectives designed to correct the parent's conduct or condition that caused removal
of the child from the home. In re A.T., No. 120,211, 2019 WL 2063949, at *4 (Kan. App.
2019) (unpublished opinion). But these efforts do not have to guarantee results; they just
must be reasonable. The agencies are there to provide structure for parents to learn and
succeed, "'but to do so the parent must exert some effort.'" In re M.S., 56 Kan. App. 2d
1247, 1257, 447 P.3d 994 (2019).
There is sufficient evidence to support the district court's finding the agencies used
reasonable efforts to rehabilitate Mother during the 17 months A.C. was out of the home.
DCF offered services to Mother when it first investigated allegations of physical abuse
12
and discovered a lack of utilities in the home. Trendel testified she offered Mother safety
plans and family preservation services in each meeting. She also offered Mother a list of
Barton County resources, suggested vocational rehabilitation, and recommended Mother
consider the Dream Center and transitional housing in Hutchison or Salina. Mother
declined these resources.
Family support workers made considerable efforts to drug test Mother, but she
refused the requests. Mother showed frustration with the testing requests, but testing was
part of the reintegration plan to allow visitation with A.C. in support of the ultimate goal
to return A.C. to the home. Mother had no visits with her daughter during the 17 months
A.C. was out of the home because she never provided three clean drug tests to DCF.
Without visitation, Mother could not complete several case plan tasks requiring
supervised visitation. St. Francis also referred Mother twice for drug and alcohol
evaluations. Further, the record reflects Mother was less than cooperative. Henry and
Elliott both testified Mother was difficult to reach by phone and in person, and if they did
catch her at home, Mother would conclude the meeting abruptly without letting them in
her house. Based on these facts—repeated efforts to contact, drug test, and provide
services to Mother—a reasonable fact-finder could find it highly probable DCF and St.
Francis used reasonable efforts to rehabilitate the family.
Lack of Effort to Adjust Circumstances
The district court found K.S.A. 2019 Supp. 38-2269(b)(8) applied because Mother
showed throughout the entire time of the reintegration plan that she lacked effort to adjust
her circumstances and conduct to meet the child's needs. Mother responds she made
reasonable efforts to adjust her circumstances to meet A.C.'s needs. She testified she and
her fiancé moved into a clean home with working utilities, had generally been engaged in
drug and alcohol care, and completed several other case plan tasks.
13
Although the utility bill admitted at trial appears to contradict the district court's
finding that Mother did not have electricity at her home when Elliott visited, it does not
affect the other findings the district court made to support termination. The record reflects
Mother did complete a few case plan tasks, including obtaining a government phone,
living in a home that complied with city ordinances, and providing her contact
information to St. Francis. Mother claimed she had completed several other case plan
tasks, but Henry testified St. Francis could not verify Mother completed those tasks
because she refused to allow walk-throughs of her home, refused to sign a release for St
Francis to obtain the information, and was generally uncooperative.
Notwithstanding the few case plan tasks Mother did complete, a reasonable fact-
finder could find it was highly probable Mother failed over the 17 months A.C. was out
of her home to adjust the circumstances of her life to meet A.C.'s needs. Mother never
qualified for visitation time with A.C., failed to maintain contact with St. Francis, refused
almost all drug testing when contacted by St. Francis, and tested positive for
methamphetamine and MDMA three weeks before the hearing.
Extended Out-of-Home Placement
The district court next found the presumption in K.S.A. 2019 Supp. 38-2269(b)(9)
applied—"whether, as a result of the actions or inactions attributable to the parent and
one or more of the factors listed in subsection (c) apply, the child has been in the custody
of the secretary and placed with neither parent for 15 of the most recent 22 months
beginning 60 days after the date on which a child in the secretary's custody was removed
from the child's home." The district court found A.C. was placed out of the home because
Mother failed to battle her drug addiction and obtain three clean drug tests to establish
visitation with her child and failed to carry out the court-approved reintegration plan to
place A.C. back in Mother's home.
14
Given all the other factors the district court detailed and the close proximity in
time A.C. was out of her Mother’s home to the qualifying 15-month period of time
outlined in K.S.A. 2019 Supp. 38-2269(b)(9), we decline to address this factor. There
was other substantial competent evidence as described herein to support the district
court’s finding Mother’s parental rights should be terminated.
Presumption of Unfitness
The district court also applied the presumption in K.S.A. 2019 Supp. 38-
2271(a)(5), which presumes unfitness if the State establishes by clear and convincing
evidence the child has been in out-of-home placement for one year or longer and the
parent has substantially neglected or willfully refused to carry out a reasonable
reintegration plan. The parent bears the burden of proof to rebut the presumption of
unfitness by a preponderance of the evidence. K.S.A. 2019 Supp. 38-2271(b). If the
parent fails to rebut this presumption or otherwise produce evidence the parent is fit or
will be fit in the foreseeable future, the district court shall terminate parental rights.
K.S.A. 2019 Supp. 38-2271(b).
Once again given the extent of the other substantial competent evidence presented
to support termination of Mother’s parental rights, we decline to address the merits of this
presumption as it applies to the facts of this case.
Unfitness Unlikely to Change in Foreseeable Future
Substantial competent evidence in the record supports the district court's finding
Mother's unfitness was unlikely to change in the foreseeable future. Courts examine the
"foreseeable future . . . from the perspective of a child because children and adults have
different perceptions of time and children have the right to permanency within a time
15
frame reasonable to them." In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711(2014); see K.S.A. 2019 Supp. 38-2201(b)(4).
Throughout the reintegration plan, Mother was uncooperative, completed few case
plan tasks, and continued to use drugs. In 17 months, Mother never had a clean drug test,
tested positive for methamphetamine and MDMA three weeks before her termination
hearing, and admitted during one of her visits with a social worker that, if tested, she
would test positive for THC. At the time of the termination hearing, A.C. was 10 years
old and had been out of the home since she was 8 years old. Given Mother's lack of
performance over the length of the reintegration plan coupled with her failure to qualify
for visits with A.C. over the 17 months she was out of her Mother’s home, there was
substantial competent evidence to support the district court’s finding it was "highly
probable" Mother was not going to change her behavior and her unfitness was not likely
to change in the foreseeable future.
Best Interests of the Child
Finally, the district court determined termination of Mother's parental rights would
be in A.C.'s best interests. "[T]he district court is in the best position to make findings on
the best interests of the child," and we will not disturb its judgment unless we find the
determination amounts to an abuse of discretion. In re K.P., 44 Kan. App. 2d 316, 322,
235 P.3d 1255, rev. denied October 20, 2010.
The district court was tasked with evaluating all the testimony and evidence before
determining it was in A.C.'s best interests to terminate Mother's parental rights. Given
Mother's past conduct and continued drug use, her failure to obtain three clean drug tests
during the 17 months A.C. was out of the home to be granted visitation time, and her
inability to cooperate with the agencies there to provide services, a reasonable person
could have concluded termination was in A.C.'s best interests.
16
The district court did not err in terminating Mother's parental rights.
Affirmed.
17