In re J.R.B.

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NOT DESIGNATED FOR PUBLICATION

No. 115,962

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of

J.R.B., J.A.T., and J.L.T., MINOR CHILDREN.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DANIEL T. BROOKS, judge. Opinion filed April 21, 2017.
Affirmed.

Anita Settle Kemp, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.

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

Per Curiam: This is an appeal of a parental termination case by G.B., the
biological mother of J.R.B. (YOB 2002), J.A.T. (YOB 2006), and J.L.T. (YOB 2008).
Following a bench trial, the district court found G.B. unfit under K.S.A. 2016 Supp. 38-
2269(b)(1), (2), (3), (4), and (8), and also determined that this condition was unlikely to
change in the foreseeable future. Finally, the district court determined that terminating
G.B.'s parental rights was in the best interests of her three children. G.B. appeals.

FACTUAL AND PROCEDURAL BACKGROUND

On February 15, 2014, while at the family home, J.R.B. sustained chemical burns
to her face, neck, and scalp. Despite the obvious severity of the burns, G.B. did not call
for emergency medical assistance or take J.R.B. to the hospital or doctor's office. School
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officials noticed the burns on J.R.B. and contacted authorities. As a result, on February
19, 2014, Officer Christopher Hornberger and another officer conducted a welfare check
at G.B.'s home.

At the home, Officer Hornberger observed "very poor living conditions." In his
words, "The house was very filthy, we noticed cockroaches, trash everywhere throughout
the residence, extremely dirty kitchen, there were faucets that were leaking [and] it
appeared . . . the electricity was being [run] through an extension cord." Officer
Hornberger also noticed that G.B. apparently heated her home with the kitchen stove.
G.B. advised that J.R.B., J.A.T., and J.L.T. all slept in a single bedroom with her.

Officer Hornberger observed J.R.B. and immediately noted numerous chemical
burns on her face that were partially covered "with a large amount of women's makeup."
When asked about the burns, G.B. explained that she stored a chemical solution in a
spray bottle and that J.R.B. had accidentally sprayed the solution on her face and head.
G.B. admitted that she had not sought medical treatment for J.R.B. The police officers
placed the children in protective custody and transported J.R.B. to a local hospital for
treatment.

The State filed a child in need of care (CINC) petition relating to all three children,
which G.B. did not contest. On April 18, 2014, the district court found all three children
were in need of care. Temporary custody of the children was placed with the Kansas
Department of Children and Families.

In accordance with a reintegration case plan, G.B. visited the children in protective
custody during April 2014, until J.R.B. informed social workers that G.B. frequently beat
her and her siblings, and that, as a form of discipline, G.B. had poured the chemical
solution on her head which caused the burns. Based in part on information provided by
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J.R.B., on May 12, 2014, G.B. was charged with three counts of abuse of a child, a
severity level 5 person felony in violation of K.S.A. 2016 Supp. 21-5602(a)(3).

In keeping with a plea agreement, on November 13, 2014, G.B. entered a no
contest plea to one count of abuse of a child (J.R.B.) and was found guilty. On January 8,
2015, she was sentenced to 36 months' probation with an underlying prison term of 32
months, and 24 months' postrelease supervision. G.B. was given credit for 190 days of
jail time that she served while awaiting disposition of the criminal case.

The parties attempted reintegration without success, and on April 13, 2015, the
State filed a motion to terminate G.B.'s parental rights. Trial was held on January 19,
January 20, and February 2, 2016. In a journal entry issued on March 24, 2016, the
district court found G.B. unfit under K.S.A. 2016 Supp. 38-2269(b)(1), (2), (3), (4), and
(8), and determined that this condition was unlikely to change in the foreseeable future.
The district court also concluded that terminating G.B.'s parental rights was in the best
interests of her three children. Accordingly, G.B.'s parental rights were terminated.

G.B. filed this appeal.

THE DISTRICT COURT'S FINDING THAT G.B. WAS UNFIT UNDER
K.S.A. 2016 Supp. 38-2269 WAS SUPPORTED BY CLEAR
AND CONVINCING EVIDENCE

On appeal, G.B. contends the district court did not possess clear and convincing
evidence that she was "unfit by reason of conduct or condition" and that such condition
rendered her "unable to care properly for [the children] and the conduct or condition
[was] unlikely to change in the foreseeable future." K.S.A. 2016 Supp. 38-2269(a).

A district court may terminate parental rights if the court finds "by clear and
convincing evidence that the parent is unfit by reason of conduct or condition which
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render the parent unable to care properly for a child and the conduct or condition is
unlikely to change in the foreseeable future." K.S.A. 2016 Supp. 38-2269(a).

In reviewing a district court's decision terminating parental rights, an appellate
court shall consider "whether, after review of all the evidence, viewed in the light most
favorable to the State, it is convinced that a rational factfinder could have found it highly
probable, i.e., by clear and convincing evidence, that [the parent's rights should be
terminated.]" In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). Clear and
convincing evidence is "an intermediate standard of proof between a preponderance of
the evidence and beyond a reasonable doubt." 286 Kan. at 691. In our review, appellate
courts do not reweigh the evidence, judge the credibility of witnesses, or redetermine
questions of fact. 286 Kan. at 705.

In order to terminate parental rights, the district court must find the moving party
has proven three elements by clear and convincing evidence: (1) the parent is unfit, (2)
the conduct or condition which renders the parent unfit is unlikely to change in the
foreseeable future, and (3) termination of parental rights is in the best interests of the
child. K.S.A. 2016 Supp. 38-2269(a), (g)(1). When considering whether a parent is unfit
under K.S.A. 2016 Supp. 38-2269(b), district courts consider a list of nine nonexclusive
factors. The existence of any one of these factors may, but does not necessarily, establish
grounds for termination of parental rights. K.S.A. 2016 Supp. 38-2269(f). In this case, the
district court considered all of the statutory factors and found G.B. unfit based on five of
them as listed in K.S.A. 2016 Supp. 38-2269(b)(1), (2), (3), (4), and (8).

We will consider the five statutory factors which the district court found proved
G.B.'s unfitness to determine whether those findings were supported by clear and
convincing evidence.

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1. Emotional illness, mental illness, mental deficiency, or physical disability 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. (K.S.A. 2016 Supp. 38-2269[b][1])

G.B. contends the "record on appeal lacks any support that [she] had any
'emotional illness, mental deficiency, or physical disability' that would render her unable"
to care for her children. The district court, however, found "the State has met conditions
for (b)(1), that [G.B.] really is emotionally disabled. She really cannot admit her history,
her responsibility."

Trial evidence showed that G.B. suffered from serious mental and emotional
problems. While testifying at trial, G.B. stated that she had been diagnosed with post-
traumatic stress disorder, depression, and anxiety. A therapy report introduced into
evidence stated that G.B. was "struggling with anxiety and depression, and experiencing
a number of life stressors." The report continued: "It is important to note that the
disorders . . . [that G.B.] meets criteria for (PTSD [post-traumatic stress disorder], Major
Depressive Disorder, Stimulant use disorder, and Panic disorder) are chronic and severe
mental health conditions."

As detailed in the next section, despite ample evidence that she abused her
children in a variety of ways, G.B. testified her children were placed in protective
custody simply because J.R.B. "got a burn, and [I] didn't get medical attention right away
[and because my] house was dirty." When asked, "And even though you have been
convicted of child abuse, you're not willing to admit to child abuse; are you?" G.B.
responded, "No, because I didn't."

At trial, the State presented several witnesses, who testified regarding G.B.'s
refusal to acknowledge her wrongdoing. Jennifer Beatson, a reintegration social worker
at St. Francis Community Services who oversaw G.B.'s attempted reintegration, testified
that G.B. "adamantly denied doing anything [wrong] to the [children] and said she would
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not admit to doing something just to start visitation." Beatson also noted that, during their
meetings, G.B. "did not accept accountability for her actions."

The district court related G.B.'s refusal to acknowledge her abuse of the children
to her emotional illness:

"This is disturbing in light of [G.B.'s] own history. She herself was removed from
an abusive situation, had to be adopted by relatives, and the Court surmises that there is
deep—surmises she's got a diagnosis, post-traumatic stress, which is consistent with that,
and also we have to take into account [G.B.'s] inability to admit this."

As detailed in the next section, the district court was presented with numerous
instances of G.B.'s abuse and neglect of her children. Yet, G.B. was unable to
acknowledge her abuse. Considered together, there was clear and convincing evidence to
support the district court's conclusion that G.B.'s long-standing and serious mental and
emotional problems rendered her unable to care for the needs of her children as set forth
in K.S.A. 2016 Supp. 38-2269(b)(1).

2. Conduct toward the child of a physically, emotionally, or sexually cruel or abusive
nature (K.S.A. 2016 Supp. 38-2269[b][2]), and physical, mental, or emotional abuse or
neglect or sexual abuse of a child. (K.S.A. 2016 Supp. 38-2269[b][4])

The district court found clear and convincing evidence that G.B. was unfit due to
two separate but related factors, K.S.A. 2016 Supp. 38-2269(b)(2) and (b)(4). In
addressing these two statutory factors, G.B. and the State discuss the same evidence and
make similar arguments. As a result, we will analyze these factors together.

G.B. contends there was not clear and convincing evidence that she abused the
children, especially J.R.B. But the district judge concluded that G.B. "either did these
injuries or was there. She either—I believe she knew, but if she can tell herself she didn't
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know, she should have known." Of note, with regard to the chemical burn sustained by
J.R.B., the district judge stated, "I'm not basing my decision on that particular incident"
because the district judge did not find "there is clear and convincing evidence that
[G.B.'s] version is not true." But the district court found, "What is, however, true beyond
clear and convincing evidence is that [J.R.B.], in particular, and to a lesser extent her
younger sibling, [J.R.B.] has had long and consistent physical abuse, long and consistent
physical abuse."

The trial evidence was not limited to the chemical burn incident involving J.R.B.,
but instead demonstrated continuous child abuse involving all three children. Alison
Despard, a family support worker with St. Francis Community Services, interacted with
all three children while they were in protective custody and supervised visits between
G.B. and the children. She testified the visits ceased after J.R.B. "made disclosure[s] to
[her] about physical abuse."

In particular, J.R.B. advised that G.B. would "hit her with sticks on her back . . .
hit her with belts [and that] oftentimes [J.R.B.] would hide the belts and she would get in
trouble for that, and that [G.B.] would use extension cords to beat her." According to
Despard, J.R.B. stated she was "beat every night by [G.B.]" and that "she was afraid to go
to sleep at night out of fear she would be beaten, so she would stay awake." J.R.B. also
related that she received the chemical burns when she "[got] in trouble" and G.B. threw
bleach on her head. G.B. then told J.R.B. to go to "school and tell them that she had been
burned in the shower." Another time, G.B. broke J.R.B.'s tooth when she "smashed
[J.R.B.'s] face into a wall." G.B. told J.R.B. "to tell the school . . . that her sister [J.L.T.]
had hit her in the mouth with a toy."

The trial evidence also established that G.B. abused the other two children, J.L.T.
and J.A.T. For example, G.B. tried to hang J.L.T. with an extension cord after J.L.T.
"talk[ed] to people about what was happening at home." Of note, as a 5-year-old, J.L.T.
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weighed only 19 pounds when she entered protective custody. Despard stated that, in
protective custody, J.LT.'s weight had increased to 32 pounds but that she was still "very
small for her age" and that there were "safety precautions put in place [at school] because
. . . she can't open [doors] on her own."

J.A.T., an 8-year-old child with cerebral palsy, "was completely dependent on a
wheelchair" when she first came into protective custody and "wasn't potty-trained."
Despard testified that since J.A.T. entered protective custody "[she] is now able to walk
on her own. She's almost fully potty-trained. We've noticed that she is able now to say
what she wants and needs, when prior to custody she would often bang her head and just
scream."

The State presented expert medical testimony from Dr. Kerri Weeks, a
pediatrician who specializes in child abuse pediatrics at the University of Kansas School
of Medicine in Wichita. Dr. Weeks evaluated J.R.B. shortly after she arrived at the
hospital. J.R.B. was sedated because of the pain associated with her burn treatments. Dr.
Weeks observed that the burns were deep partial thickness burns and, given the delay in
treatment, there was a risk of infection and scarring.

Apart from the chemical burns sustained by J.R.B., Dr. Weeks also observed
"multiple, too numerous to count, pattern marks and loop marks over [J.R.B.'s] back, her
arms, her thighs." Dr. Weeks noted such marks were "very characteristic of abusive
injury." Some of these markings were "consistent with being struck with a cord or a belt,"
while others were "consistent with being struck with a rod or some other linear structure."
The markings were also at various stages of healing, which, Dr. Weeks testified,
suggested ongoing abuse. Based on Dr. Weeks' clinical examination it was her medical
opinion that J.R.B. was the victim of physical abuse and neglect.

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The record amply demonstrates a pattern of cruel physical abuse and neglect by
G.B. towards her children, especially J.R.B. We are convinced the district court had clear
and convincing evidence to find G.B. unfit under K.S.A. 2016 Supp. 38-2269(b)(2) and
(b)(4).

3. 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. 2016 Supp. 38-2269[b][3])

On appeal, G.B. acknowledges her prior drug use but states, "the usage was prior
to the filing of the CINC case and the removal of her children. With the exception of two
positive tests [during] her probation, she has remained drug free."

At trial, the following colloquy occurred between the State's counsel and G.B.:

"A. I'm not going to lie, we [G.B. and Chancelor Brooks] did a lot of drugs together,
so, like, with—with [J.R.B.], like, not getting medical attention, if I wasn't high,
she would have got the medical attention, but I was high and I wasn't thinking.
So, like, I—I don't—like, I can't remember—like, I can't remember every
incidence of everything that was going on, because—
"Q. Okay. And I noticed that your answer was 'I don't remember' to a lot of the
questions. Is that because you were high on drugs most of the time?
"A. Most of the time I was."

This testimony was noted by the district court in its finding of termination when it
observed, "[G.B.] admits she was in a drug haze sometimes."

G.B. was placed on probation on January 8, 2015. On February 27, 2015,
however, G.B. signed a document acknowledging that she violated her probation by
using the drug butalbital. As a consequence, G.B. agreed to serve a 72-hour jail sanction.
It is noteworthy that—almost 1 year earlier—on the day J.R.B. sustained chemical burns,
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February 15, 2014, G.B. was, by her own admission, using drugs. This incident
precipitated the CINC litigation and removal of her three children from the home. G.B.
then served 6 months in jail awaiting trial on child abuse charges. Still, within weeks of
her release on probation on January 8, 2015, and during the process she was attempting to
reintegrate with her children, she was, once again, using illegal drugs.

The record supports the district court's finding based on clear and convincing
evidence that G.B.'s use of narcotic or dangerous drugs was of long duration and was
continuing during this litigation. As a consequence, there was a sufficient showing that
G.B. was unable to care for her children.

4. 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. (K.S.A. 2016 Supp. 38-2269[b][8])

Finally, G.B. contends there was not clear and convincing evidence that she was
unfit under K.S.A. 2016 Supp. 38-2269(b)(8). She argues that she "has made every effort
to 'adjust her circumstances, conduct and conditions' to meet the needs of her children
[because she has] successfully completed drug treatment, parenting, anger management
and domestic violence classes." G.B. also asserts that the State "never made any
'reasonable efforts' to reunify the family."

The district court's finding that K.S.A. 2016 Supp. 38-2269(b)(8) was applicable
in this case was supported by the evidence. During the termination trial, Amy Otey, a
social worker and supervisor for St. Francis Community Services, testified that an
essential aspect of reintegration was that "[G.B.] admit to the abuse that occurred in the
home." Such an admission was important, Otey said, "in order to make sure that change
could happen, that [G.B.] could admit that it happened, then work through that."
According to Beatson, G.B. understood that in order to have visitation with her children
she needed to acknowledge her abusive behavior. Still, according to Beatson, "[G.B.]
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adamantly denied doing anything [wrong] to the [children] and said she would not admit
to doing something just to start visitation." G.B.'s intransigence, in the face of substantial
evidence of child abuse and neglect, was important evidence that she made insufficient
efforts to change her conduct in order to meet her childrens' needs.

Additionally, as discussed in the prior section, G.B.'s drug usage was directly
related to the abuse and neglect of her children. This drug usage continued unabated
during the attempt at reintegration. This illegal behavior provided additional support for
the claim that G.B. did not make sufficient efforts at changing her ways in order to meet
the needs of her children.

We conclude there was clear and convincing evidence to support the district
court's finding that G.B. did not make sufficient efforts at adjusting her circumstances,
conduct, or conditions to meet the needs of her children. See K.S.A. 2016 Supp. 38-
2269(b)(8).

On a related matter, G.B. briefly claims there was insufficient evidence to support
the district court's finding that G.B. was unfit because of a felony conviction and
imprisonment. See K.S.A. 2016 Supp. 38-2269(b)(5). However, as the State points out,
and the record confirms, the district court did not make this finding with regard to the
unfitness of G.B. G.B.'s claim is without any factual basis.

THE DISTRICT COURT'S FINDING THAT THE CONDUCT OR CONDITION WHICH RENDERS
THE PARENT UNFIT IS UNLIKELY TO CHANGE IN THE FORESEEABLE FUTURE

Although not separately briefed as an appellate issue, G.B. argues at points that
there was insufficient evidence for the district court to find that her conduct or condition
rendered her unfit to change in the foreseeable future.

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Kansas law provides that a court may predict a parent's future unfitness based on
his or her past history. In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982).
Additionally, the term foreseeable future is measured from the child's perspective and
takes into account a child's perception of time. In re S.D., 41 Kan. App. 2d 780, 790, 204
P.3d 1182 (2009).

Despard informed the district court that J.R.B. had an extreme fear of G.B.
Despard also told the district court that, in her opinion, G.B.'s parental rights should be
terminated because she had not made the necessary changes to insure that the abuse
would not continue if the children were returned to the home. According to her, she did
not feel comfortable "sending [the children] home." Despard opined that J.R.B. might not
have lived had she continued to stay in G.B.'s home. Beatson testified that termination
was in the best interests of the children for their own safety due to the extent of physical
abuse and G.B.'s inability to acknowledge the abuse and modify her behaviors.

The district judge specifically addressed how G.B.'s unfitness was unlikely to
change in the foreseeable future:

"[G.B.] needs to know herself well enough that she can deal with the truth and start that
with the children. She has not been able to do that. And I think this is—given where we
are today that this is unlikely to change in the foreseeable future. [J.R.B.] cannot live her
life in suspense, hoping that [G.B.] will somehow come to recognize the truth."

The record shows that the children's abuse and neglect were longstanding. G.B.'s
emotional and mental conditions were chronic and severe, and her drug problems
persisted throughout the litigation. Importantly, during the attempted reintegration, G.B.
either refused or was unable to confront her abuse and neglect. As detailed earlier, in the
estimation of the social workers familiar with this case, this fact prevented her from
effecting the changes necessary to parent her children in the future.
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Based on G.B.'s past abuse and neglect, her continued illicit drug use, her mental
and emotional status, and the opinions of social workers familiar with G.B.'s family, clear
and convincing evidence supported the district court's finding that her unfitness was
unlikely to change in the foreseeable future.

THE DISTRICT COURT'S FINDING THAT TERMINATION WAS IN THE BEST
INTERESTS OF THE CHILDREN

Although not specifically identified as an appellate issue, it appears that G.B.
challenges the district court's finding that terminating her parental rights was in the
children's best interests. See K.S.A. 2016 Supp. 38-2269(g)(1). The district court is in the
best position to determine the best interests of the children, and we review that decision
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 1162, 1175, 337 P.3d 711 (2014). The
party asserting an abuse of discretion bears the burden to prove the abuse of discretion.
Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d
1106 (2013).

In making a determination of the best interests of the child, "the court shall give
primary consideration to the physical, mental, and emotional health of the child. If the
physical, mental, or emotional needs of the child would be best served by termination of
parental rights, the court shall so order." K.S.A. 2016 Supp. 38-2269(g)(1). See In re
K.R., 43 Kan. App. 2d 891, 903, 233 P.3d 746 (2010). The court should consider the
relationship between the parent and children and the trauma that may be caused by
termination. 43 Kan. App. 2d at 904. In addition to the relationship between parent and
child, we also consider 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. 2016 Supp. 38-2269(g)(1); In re K.R., 43 Kan. App. 2d at 904.
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In this case, G.B. failed to establish an abuse of discretion by the district court in
finding that it was in the children's best interests to terminate her parental rights. As noted
earlier, J.R.B. had a continuing fear of being harmed by her mother. Moreover, G.B.'s
serious mental and emotional problems, coupled with her inability to remain drug-free,
clearly put her children at additional risk if they were returned to G.B.'s home. Finally,
evidence that the children made important emotional and developmental progress since
being removed from G.B.'s home also supported the finding that termination was in their
best interests. For these reasons, we find no abuse of discretion in the district court's
finding that it was in the best interests of the children to terminate G.B.'s parental rights.

Affirmed.