In re B.A.O.

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NOT DESIGNATED FOR PUBLICATION

Nos. 114,930
114,932

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of B.A.O. Year of Birth 2006 a Female,
and B.A.O. Year of Birth 2004 a Female.


MEMORANDUM OPINION


Appeal from Harvey District Court; JOE DICKINSON, judge. Opinion filed September 2, 2016.
Affirmed.

David J. Stucky, of Adrian & Pankratz, P.A., of Newton, for appellant natural mother.

Gregory C. Nye, of Nye & Nye, of Newton, for appellant natural father.

Kaitlin M. Dixon, assistant county attorney, for appellee.

Before GARDNER, P.J., BUSER and STANDRIDGE, JJ.

Per Curiam: These cases, consolidated on appeal, ask whether the district court
properly terminated Mother's and Father's parental rights. Finding clear and convincing
evidence in support of the district court's determinations, we affirm.
I. Factual and Procedural Background

In April 2014, the Kansas Department for Children and Families (DCF) filed a
child in need of care (CINC) petition on behalf of the parents' two daughters, born in
2004 and in 2006. Father was incarcerated at the time. Both parents stipulated that the
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girls were children in need of care, and St. Francis Community Services (SFCS) began
working with them in developing a case plan to reintegrate the children with the parents.

Approximately 18 months after the children entered care, the State filed a motion
to terminate parental rights, supported by a document listing dates and facts called, Points
of Severance. At the termination hearing, in November 2015, Mother appeared in person
and Father appeared by telephone. Each parent had counsel. Mother and Father agreed to
the State's proffer of the petition and the Points of Severance as its sole evidence. After
testimony from each of the parents, the district court found clear and convincing evidence
that each parent was unfit and that it was in the best interests of the children to terminate
the parental rights. Both parents timely appealed, and we consolidated the cases on
appeal.

II. The Governing Law

Because a parent has a fundamental liberty interest in the relationship with his or
her child, the allegations of conduct that form the basis for termination must be proved by
clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769-70, 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). To terminate parental rights, a district court must find by clear and convincing
evidence (1) that a parent is unfit by reason of conduct or condition which renders the
parent unable to properly care for his or her child, (2) that the conduct or condition is
unlikely to change in the foreseeable future, and (3) that termination of parental rights is
in the child's best interests. K.S.A. 2015 Supp. 38-2269(a), (g)(1). The statute sets out a
nonexclusive list of factors a district court must consider when determining whether a
parent is unfit. If supported by clear and convincing evidence, a single statutory basis for
unfitness can support terminating a parent's rights, though courts should consider all
applicable bases. K.S.A. 2015 Supp. 38-2269(f); In re M.H., 50 Kan. App. 2d 1162,
1170, 337 P.3d 711 (2014). The State bears the burden of proof in this matter.
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We review a district court's decision to terminate a parent's rights by applying a
clear and convincing evidence standard, asking whether a rational factfinder could have
found it highly probable that the parent's rights should be terminated. In re B.D.-Y., 286
Kan. at 698. We review the evidence in the light most favorable to the State, but we
cannot reweigh the evidence, judge the credibility of witnesses, or redetermine factual
questions. 286 Kan. at 705.

III. The Mother's Unfitness

We first review the evidence relating to the Mother's fitness to parent. The district
court's primary reasons for terminating the mother's parental rights were her serious
mental illness, her lack of stable housing, and her failure to make timely, adequate
progress on her case plan tasks.

A. Mental Health

K.S.A. 2015 Supp. 38-2269(b)(1) provides that unfitness may be found where
clear and convincing evidence shows "[e]motional illness, mental illness, mental
deficiency or physical deficiency of the parent, of such duration or nature as to render the
parent unable to care for the ongoing physical, mental, and emotional needs of the child."
In its finding of unfitness, the district court cited the mother's "serious mental health
concerns [including] suicidal ideations" and her "problems in getting the initial mental
health work done, so really pretty simple things to accomplish that have seemed to drag
on and drag on before these things were attended to."

Mother did not testify regarding mental illness but argues that she completed some
of the mental health-related tasks from the case plan: she received a mental health
recommendation, obtained medication, and received counseling, although she admits she
missed some appointments. We examine the details below.
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The case plan required Mother to complete a mental health assessment, follow all
recommendations, and sign a release allowing SFCS to obtain documentation of results
and compliance. Mother reported having completed an assessment in May 2014, shortly
after the CINC hearing, but the State was not able to verify this because Mother did not
sign a release. The first assessment the State was able to verify was conducted 7 months
later, in January 2015, after Mother went to an emergency room with suicidal ideations.
Mother was diagnosed with Bipolar Disorder II; Post Traumatic Stress Disorder (PTSD);
Stimulant Use Disorder, amphetamine-type substance, severe, in early remission; Alcohol
Use Disorder, severe, in sustained remission; and Cannabis Use Disorder, moderate, in
sustained remission.

In February 2015, Mother reported that she had "a mental breakdown" at work.
Prairie View Mental Health Center called SFCS and recommended inpatient treatment
for Mother because she had "deep depression [and] was speaking of auditory
hallucinations." In March 2015, Mother returned to Prairie View for crisis intervention,
reporting suicidal ideations and not feeling safe. She also reported that she had
experienced suicidal ideation on a daily basis for years. Six days later, Mother returned to
Prairie View for crisis intervention, again reporting suicidal ideations and not feeling
safe.

In April 2015, Mother completed a second mental health evaluation and was
diagnosed with Major Depressive Disorder, recurrent; PTSD; and Borderline Personality
Disorder. Both mental health evaluations recommended weekly individual therapy,
medication evaluation, and chemical dependency evaluation. Mother attended only two
of the seven scheduled individual therapy sessions between April 2015 and July 2015.

The case plan required Mother to attend medication management appointments
and sign a release to allow SFCS to obtain documentation. Although Mother made some
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efforts toward this goal, the first effort reported was not until 7 months after the initial
CINC hearing. At that time, November 2014, Mother was not taking her medications.

No consistency or continuity in treatment was shown. Mother reported going to
five different providers between November 2014 and May 2015. In at least two instances,
the providers reported that she did not attend scheduled sessions. SFCS provided
transportation for an appointment at Prairie View in March 2015, following her mental
breakdown at work and her reports of hallucinations the month before. Although she
sought crisis intervention twice in March, she did not attend a medication management
appointment in April. In May, she reported that she sought medication management
services from the county health department and got a prescription for Prozac, but she did
not provide verification to SFCS. Over the course of this case, she did not stay on
medication consistently. The evidence shows that her belated and inconsistent efforts to
medicate or manage her illness were not effective.

We find clear and convincing evidence to support the district court's conclusion
that Mother's mental illness was of such a duration and nature that she would be unable to
care for the ongoing physical, mental, and emotional needs of the children and that
Mother was therefore unfit pursuant to K.S.A. 2015 Supp. 38-2269(b)(1) and also under
(b)(8) for lack of effort to change her condition.

B. Failure to Carry Out the Tasks of a Reasonable Reintegration Plan

The permanency plan written in May 2014 set out tasks for the parents that would
help them provide a safe, stable environment to meet their children's basic needs. The
initial target date for completion was November 2014. The record shows that Mother did
meet several tasks by the time of the November 2015 termination hearing: she had
negative results on each mouth swab drug test, she completed a parenting class, and she
signed a release for court officers to exchange information with SFCS about her
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supervision and new charges against her. Mother testified that she once walked from El
Dorado to Newton to attend a court hearing in this case. Despite that commendable effort,
Mother did not show a similar level of commitment on other important tasks in her case
plan.

1. Failure to Maintain a Clean and Safe Residence

Mother's case plan required her to maintain a clean and safe residence with
utilities running, appropriate food, and vermin and insect free without threat of eviction
for 6 months. Mother lived at four or more addresses between July 2014 and June 2015
and had two periods of homelessness. In September 2014, Mother reported she was
homeless but was trying to rent an apartment. In November 2014, SFCS found her
residence clean and appropriate; however, she was evicted in March 2015 and was taken
to a homeless shelter.

A month later, Mother reported she was living with a friend. The following month,
Mother reported she was living in a different apartment. The next month, she reported she
was living in her own residence and renting month to month but did not provide to SFCS
rent receipts or proof of whether anyone else lived in the residence. Then in November
2015 at the termination hearing, she testified that she had moved just the week before to a
two-bedroom house. She testified that SFCS had not had the opportunity to do a walk-
through but that the house was clean and appropriate.

The district court found that the evidence showed "mom's kind of transient nature,
including a homeless shelter in January 2015." Mother moved from town to town and
lived with friends, reported a different address at every review hearing, and moved again
1 week before the termination hearing. We find clear and convincing evidence supporting
the district court's finding that Mother was unable to maintain stable housing for herself.

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2. Domestic Violence Classes

Mother completed the orientation session of the domestic violence classes,
reported that she completed other classes, and testified that she believed she had met the
requirements of this task. The State disagreed.

The Points of Severance reflects that Mother had failed to complete a domestic
violence course and that SFCS believed Mother needed more domestic violence support
"due to her poor choices in relationships." SFCS reported that it was aware of domestic
violence between Mother and Father; and the foster mother reported the girls had told her
they had seen their parents fighting and hitting each other and the police coming to arrest
dad because "mom lies." Mother and Father were not together, however, at the time of
the termination hearing.

But SFCS had also reported violence between Mother and the boyfriend she lived
with during part of 2014 and 2015. The State's report to the court characterized the
boyfriend as "a known sex offender." Mother reported to SFCS that she had to move to
another town so the boyfriend would not follow her, and SFCS recommended that she
seek an order of protection if she felt unsafe. These facts show that, despite SFCS efforts
to help her change her circumstances, Mother continued to choose partners who were
unsafe for her and for her children.

3. Other Case Plan Tasks

Mother testified that she thought she had done what she was originally asked to do
in the case plan. Further, she argues that she had made significant strides despite her
limited resources and any shortcomings in completing her case plan were not due to
neglect, but instead to financial difficulties.

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The evidence presented to the district court shows that Mother did not follow a
cleaning chart for herself, make a chore chart for her daughters, attend a budgeting class,
sign releases for her mental health evaluation records, or provide pay stubs from
employment. She argues that these were minor requirements and that the district court
"should have factored in the likelihood of Mother completing all allegedly outstanding
case plan tasks given a little more time and money." However, most or all of those tasks
could have been completed without cost and with little effort. The district court noted that
Mother had 18 months to accomplish her tasks and "a lot of these things would have been
simple to accomplish" within that time. The district court stated that Mother's efforts
were "too little, too late." Mother's failure to accomplish simple tasks supports the district
court's finding that she did not make enough effort to complete the plan or to adjust her
conditions to meet the needs of her children.

Viewing the evidence in the light most favorable to the State, we find clear and
convincing evidence of Mother's unfitness under K.S.A. 2015 Supp. 38-2269(c)(3). This,
in combination with the fact that the children had been in out-of-home placement for
nearly 18 months at the time of the hearing, provides grounds for termination under
factor (b)(9) as well.

C. K.S.A. 2015 Supp. 38-2271(a)(1) Presumption of Unfitness

Mother argues that it was improper for the State to allege a statutory presumption
of unfitness in its Points of Severance based on her relinquishment of rights for her two
older children. But the district court did not rely on that presumption, instead reaching its
decision by applying the statutory factors to the facts of the case and then finding that the
State met its burden to produce clear and convincing evidence of the mother's unfitness.
Accordingly, we find no error in this regard.


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D. Likelihood of Change in the Foreseeable Future

We also agree that Mother's inability to care for her children is unlikely to change
in the foreseeable future. K.S.A. 2015 Supp. 38-2269(a). "Foreseeable" is examined from
the perspective of a child, not of an adult. In re M.H., 50 Kan. App. 2d at 1170. As the
district court found, "[H]istory is a pretty good indicator of the future." See In re Price, 7
Kan. App. 2d 477, 483, 644 P.2d 467 (1982) (finding a court may predict a parent's future
unfitness based on his or her past history). Mother was not able to "turn things around" in
the 18 months between the filing of the petition and the termination hearing, and no
unique circumstances during that time period precluded her from doing so.

E. The Best Interests of the Children

The district court must also consider whether the children's physical, mental, or
emotional health would best be served by the termination of parental rights. K.S.A. 2015
Supp. 38-2269(g)(1). We review that decision only for an abuse of discretion. A district
court abuses its discretion only when it bases its decision on an error of fact or law or
when its decision is so unreasonable that no one would agree with it. In re M.H., 50 Kan.
App. 2d at 1175. We consider, in addition to the relationship between parent and child,
any detriment to the physical, mental, or emotional health of a child if parental rights are
not terminated, as well as the benefits of permanency. See K.S.A. 2015 Supp. 38-
2269(g)(1); In re K.R., 43 Kan. App. 2d 891, 904, 233 P.3d 746 (2010).

The district court found that Mother was trying to keep things together for herself
"but still is not in a position where she's able to care for her kids." The district court
stated, "[T]he biggest concern is that in terms of these kids' young lives, the time is
passing by . . . [and] I'm not confident at all that it would ever get to the point where
Mother and Father would be in good enough shape to get the kids back in their care." We
find no abuse of discretion in the district court's finding that termination would provide
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permanency and serve the best interests of the children. Thus, we affirm the district
court's termination of Mother's parental rights.

IV. The Father's Unfitness

A. Failure to Provide Stable Housing

The district court was primarily concerned that Father had not secured his own
housing during the year after he was released from prison.

After Father was released from prison, he failed to give SFCS an address where he
was staying in Emporia and stated he was going to move to Wichita with his girlfriend. In
May 2015, 6 months after Father was released from prison, Father reported to SFCS that
he had no residence and sometimes stayed with one of his sisters. At the termination
hearing 6 months later, Father still had made no progress toward a stable home for his
children and was living with his sister.

Father said this was "to make sure I don't drown . . . myself trying to live on my
own. Once I get my fines and everything paid off, I can move out of this place and go
somewhere else if I have to, but right now I don't want to jeopardize myself on
probation." But Father was aware that his case plan required him to "maintain a clean and
safe residence with utilities running, appropriate food, vermin and insect free, without
threat of eviction for six months."

Father's commitment to completing his probation is laudable. At the time of the
termination hearing, he reportedly had full-time employment; however, Father's failure in
the 12 months after he was released from prison to obtain his own housing and provide a
clean, safe and stable residence for his children as required by the case plan supports the
district court's finding that Father failed to put forth the effort that was required to change
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existing conditions to meet the needs of his daughters. See K.S.A. 2015 Supp. 38-
2269(a), (b)(8).

B. Failure to Perform Reasonable Tasks on Case Plan

The district court also found that Father did not put forth "enough effort to actually
accomplish what needed to be accomplished" on his case plan. See K.S.A. 2015 Supp.
38-2269(a), (b)(8), (b)(9), (c)(3). Our review of Father's progress on his case plan tasks
supports that conclusion, although Father did make some effort and accomplished some
of the assigned tasks, as the district court acknowledged.

1. Domestic Violence and Mental Health

The case plan required Father to attend domestic violence and mental health
evaluations and follow the recommendations for counseling or treatment. Father attended
only half of his mental health counseling sessions and just over one-third of his domestic
violence classes. Father explained that he sometimes missed the counseling sessions
because he overslept.

Father argues that being imprisoned and impoverished were his main difficulties
in meeting his case plan tasks. But Father was released in November 2014, 1 year before
the hearing, and delayed 6 months in beginning the domestic violence assessment. That
assessment caused the social worker to recommend a 27-week domestic violence class.
The Points of Severance refers to the social worker's reported concern with Father's
"value and respect of partners, degradation, intimidation and threats, and physical abuse
of partners" and concludes "[Father] is a high risk reoffender."

Father started the domestic violence classes 2 or 3 months after his assessment and
thus, had completed only 10 weeks of the 27-week program. When asked why he had
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waited so long to get started on some of the case plan tasks, Father initially responded he
had "no clue" but then stated he could not previously afford the costs of $150 for the
evaluation, $35 for the orientation, $25 for a book, and $35 for all the classes after that.

These costs should not have been a significant obstacle given that Father reported
full-time employment and few expenses. Nor should these costs have prevented him from
beginning other case plan tasks that required no expense, as noted below.

2. Other Tasks from the Case Plan

Father did complete several tasks: he had negative results on each mouth swab
drug test; he completed a 1-day parenting class; he signed a release for his probation
officers to exchange information with SFCS; and he maintained contact with SFCS.
However, Father did not complete some of the simplest tasks in his case plan: he did not
take a budgeting class; he did not complete a cleaning chart for himself or a chore chart
for the children; and he did not provide documentation of employment to SFCS. Father
testified that he was working full time at QSI and had provided documentation to SFCS
in July or August 2015 but acknowledged that he had not provided more recent pay stubs,
explaining that he would have had to access them through a computer at the library.

Viewing the record in the light most favorable to the State, we agree that Father's
efforts were insufficient. The case plan progress reports, including progress on the task of
maintaining an independent residence, show clear and convincing evidence for the
district court to find Father unfit under K.S.A. 2015 Supp. 38-2269(c)(3) (failure to carry
out a reasonable plan approved by the court directed toward the integration of the child
into a parental home).

That finding also provides another basis for a finding of unfitness, factor (b)(9). It
states that when a factor from subsection (c) applies, the court is to consider whether the
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"child has been in extended out-of-home placement as a result of actions or inactions
attributable to the parent." K.S.A. 2015 Supp. 38-2269(b)(9). The children have been in
care since April 2014. The first 6 months thereafter, Father was incarcerated. One full
year after he was released, Father has not made adequate progress on his case plan; thus,
factor (b)(9) is a further basis for finding Father unfit. Father delayed crucial parenting
tasks for 6 months after his release and showed little progress thereafter. His actions or
inactions thus caused his children to be in extended out-of-home placement.

Having reviewed the record, we agree that a rational factfinder could have found it
highly probable that Father is unfit and that his inability to care for his children is
unlikely to change in the foreseeable future. K.S.A. 2015 Supp. 38-2269(a). We find no
abuse of discretion in the district court's finding that termination would provide
permanency and serve the best interests of the children. Accordingly, we affirm the
district court's termination of Mother's and Father's parental rights.

Affirmed.