In re D.C-R.

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NOT DESIGNATED FOR PUBLICATION

No. 118,218


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of D.C-R., M.J.D-R., E.L-R.,
Y.L-R. and I.R.,
Minor Children.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed April 6, 2018.
Affirmed.

Raymond E. Probst Jr., of The Probst Law Firm P.A., of Kansas City, for appellant.

Crystal Elaine Ellison, assistant district attorney, and Mark A. Dupree Sr., district attorney, for
appellee.

Before GARDNER, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: The Wyandotte County District Court terminated the right of S.R.
to parent her minor children because, in part, she persisted in associating with two men
who had physically abused her and sexually assaulted one of her daughters. At the time
of the termination hearing, S.R. could not show she had stable housing or employment,
and the district court weighed those circumstances against her. S.R. has appealed on the
grounds the evidence failed to support the ruling. We find no error and affirm.


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FACTUAL AND PROCEDURAL HISTORY

The Department for Children and Families investigated reports it received in
October 2015 that Armando Mendoza-Acosta had been sexually abusing D.C.-R., S.R.'s
eldest child. D.C.-R. confirmed the abuse. Mendoza-Acosta had been S.R.'s boyfriend.
Even after they broke up, Mendoza-Acosta would enter the house and abuse D.C.-R. The
evidence showed that Eric Lopez-Garcia, S.R.'s then current boyfriend, sometimes
facilitated Mendoza-Acosta's entry into the residence. S.R. said she was afraid of
Mendoza-Acosta and believed he was capable of killing her.

DCF case workers arranged for S.R. and her children to move into a shelter for
victims of domestic violence. S.R. and her children stayed there briefly but moved back
in with Lopez-Garcia. In mid-November 2015, the State filed petitions to have the
children declared in need of care. They are: D.C.-R., a girl who was then about six years
old; M.J.D.-R., a boy then about four years old; E.L.-R., a boy then just over a year old;
and Y.L.-R., an infant girl. The district court entered temporary orders placing the
children in State custody.

The case workers developed a family reintegration plan for S.R. and the children.
During that process, D.C.-R. told case workers that Lopez-Garcia had been sexually
abusing her. The case workers also had some indication that Mendoza-Acosta had abused
M.J.D.-R. The reintegration plan included requirements that S.R. participate in screening
and counseling related to domestic violence, drug abuse, and other issues. She was also
required to obtain suitable housing for the family and to maintain gainful employment.
The case workers stressed to S.R. that she could not continue to associate with Mendoza-
Acosta or Lopez-Garcia if she wanted to regain custody of her children.

Despite those admonitions, S.R. continued to live with Lopez-Garcia. He
apparently was incarcerated for a time during the pendency of these proceedings, and
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S.R. allowed him to move back in with her upon his release from custody. S.R.,
nonetheless, reported to a therapist involved in her domestic violence counseling that she
feared Lopez-Garcia and that he physically abused her.

S.R.'s fifth child, I.R., a boy, was born in March 2017, and the State immediately
filed a petition to have him declared a child in need of care. I.R. was removed from S.R.'s
custody and became a ward of the State. The cases for each of the children were heard
together in the district court, and they have been consolidated for this appeal.

The State filed a motion to terminate S.R.'s parental rights to all five children on
April 11, 2017. The district court heard evidence on the motion on June 1 and June 27.
The evidence included what we have already outlined and that S.R. had complied with
many of the requirements of the reintegration plan. S.R. testified that she had separated
from Lopez-Garcia earlier in the year and had been living with her aunt. At the hearing,
she said she had leased a three-bedroom house through her aunt. But no case worker had
confirmed the arrangements or inspected the house. S.R. acknowledged her employment
had been irregular, especially while she was pregnant with I.R. She testified that her
current boyfriend employed her in his construction business and paid her in cash. The
boyfriend testified and confirmed the employment.

S.R. testified that she no longer had anything to do with Mendoza-Acosta or
Lopez-Garcia. The evidence showed that beginning in 2015 case workers had encouraged
S.R. to file for protection from abuse orders against Mendoza-Acosta and Lopez-Garcia.
S.R., however, did not do so until April 2017. Those petitions were dismissed when S.R.
failed to appear for a scheduled court hearing. S.R. refiled her petitions on May 22, and a
hearing for an order against Lopez-Garcia had been set for June 28.

In granting the State's motion to terminate parental rights, the district court
specifically pointed out S.R. had put the men in her life, meaning Mendoza-Acosta and
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Lopez-Garcia, ahead of her children and mentioned in particular her decision to continue
associating with Lopez-Garcia and her failure to pursue protection from abuse orders
promptly or conscientiously. The district court also cited S.R.'s failure to obtain suitable
housing and to maintain employment. In light of the evidence, the district court found
S.R. to be unfit based on five statutory grounds: Emotional or mental illness rendering
her unlikely to care for the ongoing physical, mental, or emotional needs of the children,
K.S.A. 2017 Supp. 38-2269(b)(1); physical, mental, or emotional neglect of the children,
K.S.A. 2017 Supp. 38-2269(b)(4); failure of reasonable efforts to rehabilitate the family,
K.S.A. 2017 Supp. 38-2269(b)(7); lack of effort to adjust her circumstances to meet the
children's needs, K.S.A. 2017 Supp. 38-2269(b)(8); and failure to carry out a
reintegration plan, after the children had been removed from her physical custody, K.S.A.
2017 Supp. 38-2269(c)(3). The district court also found the conditions of unfitness were
unlikely to change in the foreseeable future and the best interests of the children would be
served by terminating S.R.'s parental rights. K.S.A. 2017 Supp. 38-2269(a), (g)(1). S.R.
has timely appealed.

LEGAL ANALYSIS

On appeal, S.R. challenges the sufficiency of the evidence to support each legal
component of termination: parental unfitness, unlikelihood of change, and children's best
interests. She does not dispute the underlying facts, such as the abuse of D.C.-R. and her
effort or lack of effort in distancing herself from Mendoza-Acosta and particularly
Lopez-Garcia. Rather, she contends the facts do not warrant the district court's legal
conclusions.

Governing Legal Principles

A parent has a constitutionally protected liberty interest in the relationship with his
or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 759-60, 102 S. Ct. 1388, 71 L.
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Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Given the
inherent importance and unique character of that relationship, the right has been deemed
fundamental. Accordingly, the State may extinguish the legal bonds between parent and
child only upon clear and convincing proof of parental unfitness. K.S.A. 2017 Supp. 38-
2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).

As provided in K.S.A. 2017 Supp. 38-2269(a), the State must prove the parent to
be unfit "by reason of conduct or condition" making him or her "unable to care properly
for a child" and that the circumstances are "unlikely to change in the foreseeable future."
The statute contains a nonexclusive list of nine conditions that singularly or in
combination would amount to unfitness. K.S.A. 2017 Supp. 38-2269(b). And the statute
lists four other factors to be considered if a parent no longer has physical custody of a
child. K.S.A. 2017 Supp. 38-2269(c).

In reviewing a district court's determination of unfitness, an appellate court must
be convinced, based on the full evidentiary record considered in a light favoring the State
as the prevailing party, that 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 cannot weigh conflicting evidence, pass on the credibility of
witnesses, or otherwise independently decide disputed questions of fact. 286 Kan. at 705.
In short, any conflicts in evidence must be resolved to the State's benefit and against S.R.

Having found unfitness and unlikelihood of any timely change, the district court
must then decide whether termination of parental rights is "in the best interests of the
child." K.S.A. 2017 Supp. 38-2269(g). As directed by the language of K.S.A. 2017 Supp.
28-2269(g), the district court must accord "primary consideration to the physical,
mental[,] and emotional health of the child." The district court should weigh the benefits
to the child in terminating the relationship with the parent, given the characteristics and
duration of the unfitness, against the emotional trauma to the child that may result from
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that termination and the removal of the parent from his or her life. See In re K.R., 43 Kan.
App. 2d 891, 904, 233 P.3d 746 (2010).

The district court makes that determination based on a preponderance of the
evidence. In re R.S., 50 Kan. App. 2d at 1116. The best interests issue is essentially
entrusted to the district court acting within its sound judicial discretion. 50 Kan. App. 2d
at 1115-16. An appellate court reviews those sorts of decisions for abuse of discretion. A
district court exceeds that broad latitude if it rules in a way no reasonable judicial officer
would under the circumstances, if it ignores controlling facts or relies on unproven
factual representations, or if it acts outside the legal framework appropriate to the issue.
See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296
P.3d 1106 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

Governing Principles Applied

The evidence showed that S.R. had a continuing relationship with Lopez-Garcia
from at least late 2015 through early 2017 even though she was aware he had been
sexually abusing D.C.-R. and apparently assisting Mendoza-Acosta in doing so for some
of that time. Both men also physically abused S.R. Although various case workers told
her she could not regain custody of her children if she continued to associate with the two
men, S.R. continued to live with Lopez-Garcia and even invited him back into her home
after he had been incarcerated. S.R. shilly-shallied and essentially ignored the case
workers' recommendation she obtain protection from abuse orders against Mendoza-
Acosta and Lopez-Garcia. S.R. only parted ways with Lopez-Garcia around the time the
State filed the motion to terminate her parental rights. She then filed for protection from
abuse orders but seemed to pursue them only indifferently, as the district court sized up
her efforts. Despite S.R.'s progress with other aspects of the family reintegration plan, her
unwillingness to firmly, aggressively, and promptly distance herself from Lopez-Garcia
in particular looms large in the finding of unfitness.
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The pattern and persistence of the abusive conduct directed at S.R. and D.C.-R.
necessarily were, to say the least, corrosive of any semblance of a normal, healthy family
environment. All of the children would have been adversely affected mentally and
emotionally if they had to live under those conditions. Here, the physical violence and
sexual abuse were undisputed. So was S.R.'s willingness to maintain some form of
domestic relationship with Lopez-Garcia even after her children had been taken into State
custody—a willingness that continued virtually throughout these proceedings. The
district court essentially concluded that S.R.'s course of behavior demonstrated a willful
disregard for the well-being of her children and a preference to remain with a known
abuser. The district court, likewise, doubted the efficacy and apparently the genuineness
of S.R.'s late efforts to shed Lopez-Garcia.

We conclude that those circumstances establish that a rational fact-finder could
recognize S.R. to be an unfit parent within the meaning of K.S.A. 2017 Supp. 38-2269.
S.R.'s actions (and her inactions in dealing with Lopez-Garcia) demonstrate neglect of
her children and a lack of effort on her part to adjust her situation to the needs of her
children. This court has held that a parent's decision to continue residing during
termination proceedings with another adult who engages in domestic violence and sex
abuse supports a finding of unfitness. In re C.K., No. 115,755, 2017 WL 1197708, at *8
(Kan. App. 2017) (unpublished opinion); In re C.W., No. 113,547, 2015 WL 5311260, at
*18-19 (Kan. App. 2015) (unpublished opinion). Here, S.R.'s late efforts to distance
herself from Lopez-Garcia were too little. The district court properly found S.R. unfit
under K.S.A. 2017 Supp. 38-2269(b)(4) and (b)(8) for that reason. S.R.'s association with
Lopez-Garcia also supports findings of unfitness under K.S.A. 2017 Supp. 38-2269(b)(7)
and (c)(3) related to the failure of a reasonable plan for family reintegration, especially in
combination with S.R.'s inability to find suitable housing in a timely fashion and her lack
of substantial employment. The district court had the latitude to discount the sufficiency
of S.R.'s comparatively brief job with her new boyfriend considering the cash-only
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compensation she ostensibly received. In short, the evidence supported unfitness on each
of those grounds.

We do not consider the district court's additional statutory basis that S.R.'s mental
illness rendered her unfit under K.S.A. 2017 Supp. 38-2269(b)(1). The evidence at the
termination hearing did not include expert testimony that S.R. suffered from a
diagnosable mental illness. The district court essentially reached a lay conclusion that a
person who would persist in living with a known abuser even though doing so would
preclude the return of that person's children must be mentally infirm.

The district court's conclusion that S.R.'s unfitness as a parent would not likely
change in the foreseeable future presents a closer question. In assessing alleviation of
unfitness, the courts must measure the appropriate period by taking account of how
children experience the passage of time. K.S.A. 2017 Supp. 38-2201(b)(4). Statutory
"child time" differs from adult time because for young children in particular a month or a
year reflects a greater portion of their lives than the same period would for older teens or
adults, and that difference in perception typically favors a prompt case disposition
achieving permanency. In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re
A.L.E.A., No. 116,276, 2017 WL 2617142, at *4 (Kan. App.) (unpublished opinion), rev.
denied 307 Kan. ___ (November 9, 2017); In re G.A.Y., No. 109,605, 2013 WL 5507639,
at *1 (Kan. App. 2013) (unpublished opinion).

In reviewing this component of the district court's determination, we pay close
attention to the gravity of the conditions that S.R. failed to address over the duration of
these proceedings. S.R. was unwilling or unable to disassociate herself from men who
had physically abused her and had sexually abused at least one of her children. She
continued to reside with Lopez-Garcia until shortly before the termination hearing—
almost 15 months—even though she knew the relationship to be an insurmountable
obstacle to regaining custody of her children. The brevity of that separation and S.R.'s
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less than dutiful pursuit of protection from abuse orders against Mendoza-Acosta and
Lopez-Garcia support the district court's conclusion that the circumstances had not
fundamentally changed for the better. The children were all relatively young; they ranged
in age from about eight years old to barely two months old at the time of the termination
hearing. S.R. had not had custody of the children for an extended period of their lives.
Given the duration of the proceedings and the application of child time, the district court
found that S.R. had not demonstrated that this condition rendering her unfit had actually
changed or would change in the foreseeable future. The time for permanency for the
children had arrived.

The district court's negative assessment of S.R.'s employment situation bolsters the
determination that the overall circumstances of unfitness would not be alleviated in some
reasonable time. S.R. had not demonstrated a pattern of gainful employment. At the
termination hearing, she described a comparatively new job the terms of which were, at
best, sketchy. The lack of sustained gainful employment fairly contributed to and
supported the district court's conclusion.

We see less support with respect to housing. Although S.R. had not recently
shown she could provide adequate housing for her children—she had been living with
another family member—she represented at the termination hearing that she had leased a
suitable house. S.R.'s late announcement had prevented case workers from verifying that
arrangement and inspecting the home before the hearing. But those particulars could have
been checked in short order. If this were the only consideration, we might be inclined to
view the district court's conclusion that S.R.'s unfitness would not likely change in the
foreseeable future as insufficiently supported. But the housing situation presented a
distant tertiary concern behind S.R.'s employment and far behind S.R.'s deleterious
association with Mendoza-Acosta and Lopez-Garcia.

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The district court's finding that S.R.'s unfitness likely would not change in the
foreseeable future—measured in appropriate child time—was sufficiently supported in
the evidence.

Turning to the district court's best interests determination, what we have said to
this point effectively guides our review and directs our conclusion. The district court
understood both the governing legal principles and the relevant evidence. Applying an
abuse of discretion standard, we ask whether the district court's conclusion was so far
afield no other judge would have reached the same result on this evidentiary record. That
is plainly not true.

The home environment in which the children found themselves in 2015 was
especially pernicious. We needn't recount the circumstances again. S.R.'s response was
pallid virtually throughout these proceedings, epitomized by her continued domestic
relationship with Lopez-Garcia. By the time of the termination hearing, the children had
been removed from S.R.'s custody for a long period and had no extended contacts with
her, only short visits. Under the circumstances, more than one district court would find
the best interests of the children favored termination of S.R.'s parental rights. We find no
abuse of discretion.

Affirmed.