In re C.A.G. ( 2022 )


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  •                           NOT DESIGNATED FOR PUBLICATION
    No. 123,655
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    In the Interests of C.A.G. and C.R.G.,
    Minor Children.
    MEMORANDUM OPINION
    Appeal from Sedgwick District Court; KELLIE HOGAN, judge. Opinion filed January 14, 2022.
    Affirmed.
    Jordan E. Kieffer, of Jordan E. Kieffer P.A., of Bel Aire, for appellant natural mother.
    Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
    Before GARDNER, P.J., HILL and HURST, JJ.
    PER CURIAM: A.R. (Mother), the natural mother of C.A.G. and C.R.G., appeals
    from the district court's termination of her parental rights. She contends the State
    presented insufficient evidence to support the court's findings that her parental unfitness
    was unlikely to change in the foreseeable future and that termination of her parental
    rights was in the best interests of her children. After carefully reviewing the record and
    the parties' arguments, this court affirms the district court's determination.
    FACTUAL AND PROCEDURAL BACKGROUND
    The Sedgwick County Sheriff's office received a report that Mother had left her
    children, C.A.G. and C.R.G., with friends who were unable to care for them. The sheriff's
    office conducted a welfare check and determined that Mother had not been seen in
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    several days and that the individuals with whom the children had been left were allowing
    people to have sexual intercourse with the children in the home. The officer also
    observed that there was no running water and the residence was infested with rats. The
    deputies took the children to the hospital and then placed them in police protective
    custody.
    Two days later, the State filed a child in need of care (CINC) petition against
    Mother and the purported father alleging abandonment and sexual abuse. Both parents
    appeared at the temporary custody hearing on September 14, 2018, for the State's CINC
    petition. Based on evidence at the hearing, the district court found probable cause to
    believe the health or welfare of the children may be endangered without further care and
    intervention, and that it was in the best interests of the children to remain in the
    temporary custody of DCF. The court also issued the following orders:
    • Mother and Father submit to drug and alcohol tests;
    • Mother abstain from the use of illegal drugs, alcohol, and any prescription drugs
    without a valid prescription throughout the duration of this case;
    • Mother and Father sign all necessary releases of information for assessments,
    evaluation, tests, and treatment programs;
    • Mother must obtain and maintain full-time employment and periodically provide
    pay stubs or provide proof of weekly job searches or verification of disability and
    inability to work to DCF social worker/DCF designee;
    • Mother obtain and maintain appropriate housing; and
    • Mother and Father complete hair follicle testing every 90 days (if the preliminary
    test came back positive), parenting classes, and random urinalysis (UA) testing.
    On November 2, 2018, the district court held an adjudication hearing on the State's
    CINC petition—Mother did not appear at the hearing and was found to be in default. At
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    the outset of the hearing, the court noted that the State conducted hair follicle drug tests
    on both C.A.G. and C.R.G. and both came back positive for methamphetamine. The court
    noted that Mother failed to comply with the court-ordered drug testing, had not contacted
    Saint Francis Ministries (SFM) as ordered, or made any progress on any of the other
    court orders. The district court adjudicated the children CINC and ordered them to
    remain in DCF custody in an out-of-home placement.
    In April 2019, the district court conducted a permanency hearing after Mother
    completed a 90-day achievement plan with SFM. At that hearing, the district court
    ordered SFM to update the 90-day achievement plan and meet with Mother to review the
    plan. The court also ordered Mother to submit to a hair follicle drug test that same day.
    Although the results from that test are not in the record before this court, the district court
    noted that Mother failed a UA for THC, methamphetamine, and amphetamine shortly
    after this hearing. A permanency specialist for reintegration working for SFM met with
    Mother about the achievement plan, where Mother was given a copy and had the
    opportunity to ask questions.
    As the case progressed, Mother only had two visits with C.A.G. and C.R.G.—both
    of which occurred in the span of one week in July 2019. While the first visit was
    unremarkable, with Mother lodging some complaints regarding one child's hair and
    directing that the other child not swim because it made the child's skin dry—the second
    visit did not progress well. During the second visit, Mother appeared agitated to the
    family support worker. The children were hungry and requested snacks from Mother, but
    Mother had not brought any and was irritated when the children attempted to look in her
    purse for snacks. According to a social worker, Mother yelled at C.R.G. about why she
    and her brother were in the State's custody. C.R.G. wept as Mother yelled at her. The
    family support worker texted the case manager and her supervisor to let them know that
    she needed help with the situation. Eventually, the staff took the children out of the room
    while others talked to Mother—who later disclosed that she had taken Xanax and "other
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    things" prior to the visit. Mother did not show up for the next visit. Thereafter, the
    children's therapist recommended that subsequent visits with Mother be conducted within
    a therapeutic setting. Unfortunately, Mother never attempted to schedule any additional
    visits with the children.
    In part due to Mother's continued lack of involvement in the case, the case plan
    goal was changed from reintegration to adoption by November 2019. Mother failed to
    complete any court orders or case plan tasks, and her case participation was limited to her
    appearance at court dates. In February 2020, the State moved to terminate Mother's and
    Father's parental rights. The State alleged that extensive efforts had been made to assist
    Mother in stabilizing her situation to provide appropriate care for her children, yet she
    failed to acknowledge and address her substance abuse issues. The motion also claimed
    Mother had failed to provide a safe and stable environment for the children, had refused
    to take advantage of services provided to her, and had not modified her conduct or
    condition so as to provide appropriate care for the children.
    Due to the COVID-19 pandemic, the district court was unable to conduct a hearing
    on the State's termination motion for over six months. When the hearing was eventually
    held, the State called numerous social workers and service providers to testify to Mother's
    inability to make progress on the reintegration plan and her failure to complete nearly all
    of the district court's orders and tasks requested by SFM and DCF. These witnesses
    explained Mother's refusal to acknowledge why her children were removed from her
    custody.
    Throughout the case, Mother did not maintain stable housing and failed to keep
    the caseworkers advised of her living situation—at one point Mother moved across the
    state but never alerted anyone of her move. Yet at trial, Mother alleged that while she had
    been living with her family in Wichita, she had recently acquired her own apartment and
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    had provided documentation to SFM. None of the SFM workers had any records to
    confirm Mother's move or residence.
    Mother's failure to communicate during the case inhibited reintegration efforts.
    According to SFM staff members, Mother had numerous phone numbers, would not
    return messages, would call from blocked numbers, and would refuse to tell workers
    where she was calling from when she did call. Even when workers reached Mother, she
    would often yell at and berate them—blaming the workers for the children being taken
    from her custody. Over the two-year pendency of the case, Mother only attended five
    worker-parent meetings—Mother's absence was attributed to the SFM employees'
    inability to contact her. This communication breakdown further led to the workers' failure
    to request drug tests as mandated by the court.
    Social workers also raised concerns that Mother had not adequately addressed her
    mental health or substance use issues. While Mother had a clinical assessment scheduled
    at the time of trial, it was not completed. Although Mother claimed to be seeing a doctor
    for a substance use evaluation and clinical assessment, the doctor reported that he had not
    seen Mother for months. In fact, the SFM permanency specialist noted that, "It appears,
    when looking at the letter [from Mother's therapist], she goes in and sees [a doctor] soon
    before like a court hearing, or she gets a letter for the court hearing, and that's it." But
    unfortunately, her attention to her mental health was "very minimal" between court
    hearings. Mother did not dispute this pattern. Moreover, Mother's substance abuse, which
    loomed large over the case, was also never meaningfully addressed. After initially testing
    positive for THC, methamphetamine, and amphetamine, Mother refused to submit to
    subsequent drug testing—she did eventually take one other UA and tested positive for
    methamphetamine and cocaine. Mother never completed a court-ordered substance abuse
    evaluation—conveniently, about 13 weeks before the termination trial Mother began drug
    treatment. And while Mother admitted the negative impact drugs had played in her life,
    she denied having any issues with drugs despite her positive tests and the fact that both
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    C.A.G. and C.R.G. had tested positive for methamphetamine shortly after they were
    taken from her care.
    Out of all of the reintegration case plan tasks, Mother only completed the
    mandated parenting classes. Although she also claimed to have gained employment and
    obtained an apartment, she provided no documentation to support her claims. Contrarily,
    the social workers' records showed that she was only briefly employed for two periods
    during the entire case.
    Beyond not completing the court orders and reintegration case tasks, Mother had
    only two visits with the children during the pendency of the case. It took approximately
    10 months to schedule the first visit because workers could not locate Mother. After the
    second visit, which ended poorly, Mother did not attempt to schedule any further time
    with C.A.G. and C.R.G. over the 14 months leading up to the trial. On top of Mother's
    failure to communicate with the SFM workers, visits also did not occur due to Mother's
    failure to address her own mental health issues.
    The social workers explained that Mother failed to make changes to support
    reintegration. Although she completed the mandated parenting classes, she did not
    attempt to adjust her behavior or circumstances based on the parenting class teachings or
    therapist recommendations. The State also presented substantial evidence regarding the
    impact of the case on C.A.G. and C.R.G. At the time of the trial, the children had been in
    custody for two years and, specifically C.A.G. craved stability. Both children had been
    diagnosed with adjustment disorder with mixed disturbance of emotions and conduct.
    Fortunately, their prognoses was good with continued therapy. Both children were
    guarded when speaking about Mother in therapy. C.A.G. told the therapist that the second
    visit was like how things were when they lived with Mother—she would be nice and then
    would start yelling. C.A.G. had also been diagnosed with ADHD, was receiving
    medication management, and was starting the individual education plan process at
    6
    school. The therapist testified it would be necessary for a parent to manage his
    medication and individual therapy, and provide a stable and consistent environment for
    the continued successful treatment of his ADHD. According to the therapist, for C.R.G.'s
    prognosis to remain good, she needed "a stable and consistent environment."
    In contrast to the State's assertion that Mother failed to maintain stable
    employment or housing, refused therapy, failed to visit the children or take responsibility
    for her actions and failed to remain drug free—Mother identified apparent agency or
    system failures during the case. The children's therapist testified she never received
    reports of Mother's progress during the case. While she initially testified she received
    CASA's report that recommended visits with Mother resume, she later testified that she
    did not receive those reports. The SFM family support worker and SFM permanency
    specialist both admitted they did not provide updates to the children's therapist.
    Additionally, the SFM reintegration supervisor admitted that best practices were not
    always followed in the case. Along these same lines, Mother also alleged that the
    caseworkers intimidated her and laughed at her and that she never received a list of
    resources and had to find resources for herself. She also testified that she was deprived of
    the opportunity for visits with her children and was unable to connect with workers to
    schedule therapeutic visitation as requested, even after having an attorney attempt to
    facilitate the communication. However, contrary to Mother's assertion at trial that she
    tried to schedule the therapeutic visits with C.A.G. and C.R.G.—there was no record of
    her alleged efforts, such as letters, emails, messages, call logs, notations of anyone she
    spoke to, or any record of any kind, and no visits were ever scheduled.
    After hearing the evidence and the arguments of the parties, the district court
    concluded that Mother was unfit to parent C.A.G. and C.R.G. under several statutory
    factors, including:
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    • K.S.A. 2020 Supp. 38-2269(b)(2) ("conduct toward a child of a physically,
    emotionally or sexually cruel or abusive nature");
    • K.S.A. 2020 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. 2020 Supp. 38-2269(b)(4) ("physical, mental or emotional abuse or neglect
    or sexual abuse of a child");
    • K.S.A. 2020 Supp. 38-2269(b)(7) ("failure of reasonable efforts made by
    appropriate public or private agencies to rehabilitate the family");
    • 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 conditions to meet the needs of the child");
    and
    • K.S.A. 2020 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 court further concluded that the evidence established that Mother's conduct or
    condition was unlikely to change in the foreseeable future and that it was in the best
    interests of C.A.G. and C.R.G. that Mother's rights be terminated. Mother now appeals.
    DISCUSSION
    On appeal, Mother contends the State presented insufficient evidence to support
    the district court's determination that her unfitness was unlikely to change in the
    foreseeable future and that termination of her parental rights was in the best interests of
    the children. She does not contest the court's finding that she was presently unfit.
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    Parents have a constitutionally protected liberty interest in the relationship with
    their child. See Santosky v. Kramer, 
    455 U.S. 745
    , 753, 758-59, 
    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). The
    parental liberty interest in a relationship with their child has been deemed "perhaps the
    oldest of the fundamental liberty interests recognized." Troxel v. Granville, 
    530 U.S. 57
    ,
    65, 
    120 S. Ct. 2054
    , 
    147 L. Ed. 2d 49
     (2000). Due to the fundamental nature of parental
    rights, the State may only terminate parental rights upon clear and convincing evidence of
    parental unfitness. K.S.A. 2020 Supp. 38-2269(a); In re R.S., 
    50 Kan. App. 2d 1105
    , Syl.
    ¶ 1, 
    336 P.3d 903
     (2014). In fact, prior to termination of parental rights, the State must
    prove by clear and convincing evidence that: (1) the parent is unfit; (2) the conduct or
    condition which renders the parent unfit is unlikely to change in the foreseeable future;
    and prove by a preponderance of evidence that (3) termination of parental rights is in the
    best interests of the child. K.S.A. 2020 Supp. 38-2269(a), (g); In re R.S., 50 Kan. App. 2d
    at 1115-16.
    An appellate court reviews the district court's decision to terminate parental rights
    by first determining whether the court's findings of fact are supported by clear and
    convincing evidence. In re Adoption of Baby Girl P., 
    291 Kan. 424
    , 430-31, 
    242 P.3d 1168
     (2010); In re B.D.-Y., 286 Kan. at 705. Clear and convincing evidence is evidence
    sufficient to establish "that the truth of the facts asserted is highly probable." 286 Kan. at
    697. This is "'an intermediate standard of proof between a preponderance of the evidence
    and beyond a reasonable doubt.'" In re Adoption of C.L., 
    308 Kan. 1268
    , 1278, 
    427 P.3d 951
     (2018). This court reviews the evidence in the light more favorable to the party that
    prevailed at the district court—in this case, the State—and will not reweigh conflicting
    evidence or reassess the credibility of witnesses. In re B.D.-Y., 286 Kan. at 705.
    9
    A. The district court relied on clear and convincing evidence that Mother's unfitness
    was unlikely to change in the foreseeable future.
    Because Mother does not challenge any of the district court's findings on her
    unfitness at the time of trial, this court does not review the district court's finding of
    Mother's unfitness under K.S.A. 2020 Supp. 38-2269(b)(2), (3), (4), (7), (8), and (9). An
    issue not briefed is deemed waived or abandoned. State v. Arnett, 
    307 Kan. 648
    , 650, 
    413 P.3d 787
     (2018).
    After a district court determines a parent is presently unfit, it must determine
    whether the parent's unfitness is likely to change in the foreseeable future. K.S.A. 2020
    Supp. 38-2269(a). The court determines the foreseeable future from the perspective of a
    child because children and adults have different perceptions of time—and children have a
    right to permanency within a timeframe that is reasonable to them. In re M.H., 
    50 Kan. App. 2d 1162
    , 1170-71, 
    337 P.3d 711
     (2014). The parent's past conduct can be viewed as
    an indicator of the parent's future behavior. In re K.L.B., 
    56 Kan. App. 2d 429
    , 447, 
    431 P.3d 883
     (2018); see In re M.H., No. 117,127, 
    2017 WL 5951684
    , at *4 (Kan. App.
    2017) (unpublished) ("A parent's actions, not intentions, are the measure to be used in
    determining the likelihood of change in the foreseeable future.").
    Mother asserts that there is not clear and convincing evidence to support the
    court's finding that her unfitness is unlikely to change in the foreseeable future. She
    argues that within the two-year pendency of the case she completed one of the most
    significant tasks by obtaining stable housing and demonstrated progress towards other
    appropriate changes in her life. Unfortunately, the record does not bolster Mother's
    assertion. In fact, Mother not only failed to provide any evidence supporting her claim of
    stable housing—the evidence demonstrated that she failed to complete nearly all of the
    tasks on her case plan. Although Mother completed the required parenting classes, she
    failed to obtain substance use evaluations, refused to take drug tests, did not consistently
    10
    attend individual therapy, scheduled a mandated clinical evaluation only after the
    termination trial, and failed to demonstrate any effort to see her children after July 2019.
    Mother's conduct during the pendency of this case does not demonstrate that her
    unfitness—which she does not challenge on appeal—was likely to abate in the
    foreseeable future. Mother was unemployed for a vast majority of the case, failed to
    maintain stable housing, failed to demonstrate she was drug-free, and only addressed her
    mental health as court dates approached. Out of all her case plan tasks, Mother only
    completed parenting classes, and social workers noticed that she refused to apply any of
    the parenting class lessons. Over the course of two years, she only visited the children
    twice. While Mother was beginning to address her drug issues—which remained chronic
    throughout the case—she failed to obtain the required assessments and failed to comply
    with court-ordered drug testing. Mother's unhurried, incremental progress just before the
    termination trial does not erase or overcome her two years of inaction toward
    reintegration. The district court may rely on Mother's past instability and inconsistency,
    particularly during the two-year pendency when she was provided with support services,
    to indicate the likelihood of similar future behavior. There was clear and convincing
    evidence to support the district court's finding that she was likely to remain unfit for the
    foreseeable future, especially when considering the length of such instability in the eyes
    of young children.
    B. The district court did not abuse its discretion in determining the best interests of
    the children.
    After finding a parent unfit and that such unfitness is reasonably likely to continue,
    a district court next determines, by a preponderance of the evidence, if termination of
    parental rights is "in the best interests of the child." K.S.A. 2020 Supp. 38-2269(g)(1).
    This determination gives "primary consideration to the physical, mental and emotional
    health of the child" and involves weighing termination against the parent's continued
    11
    presence. K.S.A. 2020 Supp. 38-2269(g)(1); In re K.R., 
    43 Kan. App. 2d 891
    , Syl. ¶ 7,
    
    233 P.3d 746
     (2010). This court will only overturn a district court's best-interests
    determination when it constitutes an abuse of discretion. In re R.S., 
    50 Kan. App. 2d 1105
    , Syl. ¶ 2. A district court exceeds the latitude it is afforded and abuses its discretion
    if no reasonable person could agree with its decision or if its conclusion was based on a
    factual or legal error. 50 Kan. App. 2d at 1118.
    Mother contends that C.A.G. and C.R.G. are still young and had many years of
    childhood remaining, during which she could continue to bond with them and be a
    significant part of their lives—attempting to undermine the significance given to the
    length of time she had been out of the children's lives. Mother argues the court abused its
    discretion because it undervalued the importance of the parent-child relationship.
    The district court heard testimony from the children's therapist that they needed a
    consistent and stable environment to maintain their mental and emotional needs. There
    was also evidence that the children's physical health would require consistent medication
    adherence and stability. Mother's behavior throughout the pendency of the case was
    neither consistent nor stable. Additionally, Mother had not provided for the children's
    physical needs while they were in her care because both tested positive for
    methamphetamine, and they were frequently left in the care of others in a home with a
    rodent problem that lacked running water. Moreover, Mother provided no evidence, other
    than her own testimony, that she would be able to provide for their physical needs in the
    foreseeable future.
    When a district court is required to make the difficult decision of whether to
    terminate a parent's rights, it must consider both (1) the physical, mental, and emotional
    needs of the child; and (2) the nature and strength of the parent-child relationship versus
    the child's need for permanency. See In re K.R., 43 Kan. App. 2d at 904. The district
    court considered these important factors in its decision. In the face of C.A.G.'s and
    12
    C.R.G.'s need for stability and a home environment where their mental, physical, and
    emotional needs could be met, it cannot be said that no reasonable person would agree
    that termination of Mother's parental rights was in the children's best interests, nor that
    the district court based its decision on an error of fact or law. The district court did not
    abuse its discretion.
    Affirmed.
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Document Info

Docket Number: 123655

Filed Date: 1/14/2022

Precedential Status: Non-Precedential

Modified Date: 1/14/2022