In re J.S.

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NOT DESIGNATED FOR PUBLICATION

No. 115,529

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of
J.S., YOB 2010, and
A.H. Jr., YOB 2012.

MEMORANDUM OPINION


Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed October 21, 2016.
Reversed and remanded with directions.

Debera A. Erickson, of Kansas City, for appellant.

Ashley Hutton, assistant district attorney, and Jerome Gorman, district attorney, for appellee.

Before HILL, P.J., PIERRON and GARDNER, JJ.

Per Curiam: B.S., the natural mother of J.S., born in 2010, and A.H. Jr., born in
2012, appeals from the district court's termination of her parental rights. She argues there
was insufficient evidence to support the termination and the evidence that she was unfit
was largely speculation and not based upon observed conduct. Before terminating
parental rights, a court must find by clear and convincing evidence that the parent is unfit.
K.S.A. 2015 Supp. 38-2269(a).

The State filed an application for an ex parte order of protective custody over J.S.
and A.H. in May 2013. The statement of facts detailed concerns regarding B.S.'s mental
health as well as the possible verbal and physical abuse of the children. J.S. and A.H. had
been living with A.H.'s aunt since October 2012. The aunt reported that due to health and
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financial reasons she could no longer care for the children. At that time, B.S. was
unemployed and had just received a 30-day eviction notice.

In June 2013, the district court granted orders of temporary custody for J.S. and
A.H. As a basis for its findings, the court cited the parents' mental health issues and
homelessness and the fact that the family members who had been caring for the children
could not continue to do so. The court made the following interim orders for B.S.:
maintain stable housing and income, sign all necessary releases of information, contact
her case services officer (CSO) once a month, allow monitored visits, and complete a
psychosocial assessment, mental health assessment, domestic violence assessment, and
parenting classes.

B.S. stipulated that A.H. and J.S. were children in need of care in July 2013. She
noted she had been raised in a home with domestic and sexual violence, she had anger
issues, and she had issues with stable income and housing. She agreed she could benefit
from parenting classes. The court accepted B.S.'s stipulation. The court found that
reintegration was a viable option at the August 2013 Disposition hearing. The court
maintained the interim orders issued in June and also recommended that B.S. complete
IQ testing.

A review hearing occurred in November 2013, at which time the orders remained
in full force. At a permanency hearing in April 2014, the court noted the parents were
working on all of the court's orders and they had "made strides towards stability and
addressing the issues that brought the children into custody." Additionally, the court
ordered B.S. to complete the Safe Kids program and participate in Wyandotte County
Community Developmental Disabilities Organization services. At a review hearing in
July 2014, the court ordered B.S. to develop a budget for her household. At a review
hearing in December 2014, the court ordered B.S. to become involved with either Parents
as Teachers (PAT) or parent management training (PMT). At a March 2015 permanency
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hearing, the court noted that B.S. "ha[d] continued to work court orders but ha[d] failed
to progress to overnights."

The State made a motion to terminate the parental rights of B.S. and the fathers of
A.H. and J.S. on April 14, 2015. The State acknowledged B.S. had successfully
completed many of the district court orders, including signing all required releases of
information, providing verification of income and stable housing, keeping in contact with
her case services officer, completing a psychosocial assessment, initiating classes with
Parents as Teachers, completing a budget, and consistently visiting her children during
unsupervised visits with no concerns. The State's concerns were that while B.S. reported
attending domestic violence classes, she had not provided verification. The State was also
concerned that while B.S. successfully completed the Safe Kids program, "professionals
report[ed] concerns with [her] ability to grasp material." On September 16, 2015, the
court terminated the rights of A.H.'s father and J.S.'s father. However, in November 2015,
the court found the State had failed to prove by clear and convincing evidence that B.S.'s
parental rights should be terminated.

The State made another motion to terminate B.S.'s parental rights in December
2015. We find this somewhat unusual. It appears to us that the district court's first
decision was correct, and we do not see any changes of note that occurred in the
following month.

The State reiterated the facts set forth in its April 2015 motion acknowledging that
B.S. had complied with almost all court orders. We find this significant. The only
differences between the December and April motions were: (1) B.S. had completed a
domestic violence assessment and she had participated in PAT until her children aged out
of the program; (2) the State still had concerns regarding B.S.'s ability to grasp the Safe
Kids material and added "[p]rofessionals report [B.S.] gained very little from Safe Kids
and made limited progress due to her own mental health issues"; and (3) the State had
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many concerns about B.S.'s visitation with her children, including "several incidences
where [she] inappropriately medicated the children and another occasion where the
youngest child swallowed a balloon." Based on those facts, the State moved to terminate
B.S.'s parental rights pursuant to K.S.A. 2015 Supp. 38-2269(b)(1) (a parent's mental
deficiency renders them unlikely to care for their children) and K.S.A. 2015 Supp. 38-
2269(b)(7) (failure of reasonable efforts to rehabilitate the family).

The district court heard the State's motion to terminate B.S.'s parental rights on
February 19, 2016. Three parties testified: B.S., Cynthia Moses—a clinician for
Transitions Counseling Services, and Samantha Broz—a case manager for KVC.

B.S. testified she had stable income and housing. She then stated that she thought
she had completed individual therapy at Keeler Women's Center with a therapist. B.S.
thought that Broz was supposed to assign her another therapist because B.S. did not like
the first therapist. B.S. felt the first therapist focused too much on past issues. B.S.'s CSO
gave her some ways to redirect her therapy sessions to current issues. B.S. stated she felt
she learned "a little bit" from PAT and the Safe Kids programs. She had worked with
Moses during Safe Kids and continued to attend family therapy with Moses after she had
completed Safe Kids. However, B.S. said she did not like Moses because she thought
Moses was "two-faced." Later, Moses testified she had recommended terminating B.S.'s
parental rights before she even engaged in therapy with B.S. or observed her with her
children. Moses acknowledged this might be the reason B.S. did not trust her.

B.S. also addressed the two concerns that the State raised in its motion to
terminate her parental rights—the balloon in A.H.'s diaper and the medication she gave to
A.H. B.S. acknowledged a balloon had been found in A.H.'s diaper. She said she did not
know that he had swallowed it because she had been cooking dinner. She said the
children had played with balloons before but never swallowed one. B.S. did not recall
saying "[A.H.] swallowed a balloon because he's stupid like his dad." As a result of the
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balloon incident, B.S.'s visits with her children were changed from overnight visits to
supervised visits. When B.S. administered children's medicine to A.H. for a fever she
measured the dose based on his weight. She looked on the back of the medication but
"didn't see the age until after it was too late." B.S. also administered cough medicine to
A.H., based on his age.

Moses testified B.S. had completed the Safe Kids assessment. As a result of the
Safe Kids assessment and a domestic violence assessment, Moses recommended that B.S.
complete individual therapy due to trauma from her past. Moses also diagnosed B.S. with
post-traumatic stress disorder and depression with some bipolar features based on the
issues in her past. B.S. did not do individual therapy with Moses because she could not
afford it. Because Moses was not B.S.'s individual therapist, she did not know whether
B.S. had been able to deal with her past issues. B.S. and her children did family therapy
with Moses. Moses stated that B.S. "engage[d] very well with the children" during
activities. Her primary concern was that B.S. became frustrated and upset while dealing
with toilet training issues with her sons. J.S. has some developmental problems that make
it difficult for him to regulate his bowels, although it is unclear whether it is a physical or
psychological issue. Moses reported that B.S. said things like "you should know when
you have to go to the bathroom" or "you stink" and her criticism of J.S. "could be
verbally and emotionally abusive." Other than that, Moses said that B.S. interacted
appropriately with her children.

Moses felt that B.S. could take care of the children if she had "someone who was
going to be there twenty-four/seven with her, three sixty-five, and . . . remind her and cue
her into continuing to be aware of the way she's working with the children and her anger
and frustration . . . ." However, Moses did not believe that B.S. had the support system
necessary to care for the children because of B.S.'s trust issues. Moses acknowledged
that, after the Safe Kids assessment but before beginning family therapy, Moses had
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recommended that B.S.'s parental rights be terminated. Moses understood this might be
the reason that B.S. did not trust her.

Broz, a case manager at KVC, testified she did not have confirmation that B.S. had
ever completed individual therapy with the first therapist at Keeler Women's Center. Broz
did not recall B.S. telling her that she did not like the first therapist or B.S.'s request for a
new therapist. Broz noted that B.S. had overnight visits with the children until the balloon
appeared in A.H.'s diaper and then the visits were changed to supervised visits. At the
time of the hearing, visits were supervised in B.S.'s home. Broz said that every time they
tried to move forward with the visits, "a concern c[ame] up from somebody." Broz
specifically cited a negative report from Moses that prevented visitation from moving
forward. Broz was concerned about the balloon and medication incidents because B.S.
did not seem very concerned when they happened. Instead, B.S. responded defensively
when Broz asked her about those incidents. Broz testified that when she asked B.S. about
the balloon incident, B.S. said, "It's not my fault that [A.H.] swallowed a balloon, because
he's stupid like his dad," and then B.S. "stormed out of the office and was very angry."
When asked if this was a typical encounter with B.S., Broz replied affirmatively. Broz
reported that at times B.S. had also shown up at her office unannounced, asked to speak
with her, and "immediately start[ed] raising her voice and saying a whole bunch of stuff
about what she's mad about." Broz reported that B.S. told her that she felt she was not
getting anything out of the Safe Kids or PAT. If the court were to continue with
reintegration, Broz' primary concerns were that B.S. seemed to have trouble grasping
material, she would not consult people if she did not know something, she failed to
recognize problems, and she seemed unwilling to address problems.

On cross-examination, Broz was asked to review the case log that she brought to
court. Broz kept the log so that she would "have notes of everything that's happened on
the case." Broz' notes showed very few concerns regarding B.S.'s supervised visits. There
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were some concerns from the foster parents, who wanted to adopt the children, and also
the concern from Moses that B.S. chastised the boys too harshly.

The district court noted that both sides agreed that B.S. substantially completed all
of her court orders. The court reviewed the reasons the children were in need of care:
B.S.'s stipulations she had been raised in a home with domestic and sexual violence, she
had anger issues and could benefit from parenting classes, and she had issues of stable
housing and income. While B.S. had addressed the issues of housing and income, the
court did not think she had successfully dealt with the other two issues. The court was not
concerned about the medication or balloon issues.

The district court judge seemed to place the most weight on B.S.'s failure to
address her past issues and deal with the PTSD diagnosis from Moses. He stated, "at least
half of the [CINC] stipulation [was] a recognition that these traumas from the past affect
her ability to parent her two children . . . ." In regards to the statements B.S. made while
toilet training (like "you smell poopy") the judge said the statements, out of context, were
"not damning." But, he gave weight to Moses' opinion that the statements were overly
harsh and scolding and they revealed how B.S.'s PTSD made her unable "to regulate her
emotions and to react appropriately to her frustration and anger" and thus unable to
effectively parent. The judge also thought that B.S.'s PTSD caused her trust issues and
explained why Moses believed B.S. would not have the support she needed to parent.

The district court judge's other primary concern was that B.S. had not found her
programs helpful. He said if it were only 1 year into the case he would have a problem
finding that there was clear and convincing evidence that B.S. could not change in the
foreseeable future. But, the case had been ongoing for 3 years, and B.S. still did not
"recognize the impact of her childhood traumas upon her ability to care properly [] for
her children." Despite making efforts, B.S. seemed to have "a block" that prevented her
from "understanding . . . her own needs and her children's needs . . . ." This was bolstered
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by the fact the judge found it credible that B.S. had said, "I don't know why I have to do
therapy. I don't know why I have to do Safe Kids. And I'm not getting anything from
them."

The district court found by clear and convincing evidence, under K.S.A. 2015
Supp. 38-2269(b)(1) and (b)(7), that B.S. was "an unfit parent by reason of conduct or
condition which render[ed] her unable to properly care for a child. That conduct or
condition [was] unlikely to change in the foreseeable future."

B.S. timely appeals.

If a child has been adjudicated to be a child in need of care, then parental
rights may be terminated "when the court finds by clear and convincing evidence
that the parent is unfit by reason of conduct or condition which renders 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. 2015 Supp. 38-2269(a). The court may
consider, but is not limited to, several factors listed in K.S.A. 2015 Supp. 38-
2269(b). A finding of "any one of the . . . factors standing alone may, but does not
necessarily, establish grounds for termination of parental rights." K.S.A. 2015
Supp. 38-2269(f).

When reviewing a district court's decision to terminate parental rights, the
appellate court considers "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" requires the factfinder to believe "that the truth of the facts asserted
is highly probable." 286 Kan. at 697. The appellate court does "not weigh conflicting
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evidence, pass on credibility of witnesses, or redetermine questions of fact." 286 Kan. at
705.

On appeal, B.S. argues the district court incorrectly based its decision on
speculative testimony from Moses. Moses' concerns regarding B.S.'s parenting ability
were based on what might happen if B.S. did not address her past issues. B.S. also argues
that Moses' testimony that she was abusive to her children was not supported by
sufficient evidence because the only example of abuse Moses could give was that B.S.
made "statements that the child was smelly when he had clearly defecated his pants . . . ."
The State agrees with the court and argues that her continued issues regarding her mental
illness, her mistrust and dislike of all professionals involved in her treatment, her belief
that she did not need medication or therapy, and her denial of gaining any benefit from
these programs" constituted sufficient evidence for the court's decision.

The district court judge relied on K.S.A. 2015 Supp. 38-2269(b)(1) ("[e]motional
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") and (b)(7) ("failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family") in its decision. Here, the
court cited PTSD as the condition that made B.S. unfit to be a parent. However, as B.S.
argues, the evidence that PTSD affects her parenting is hardly clear and convincing.

Moses' diagnosis of PTSD was based on B.S.'s completion of Safe Kids and a
domestic violence assessment. Moses also recommended terminating B.S.'s parental
rights on the basis of her participation in Safe Kids, despite the fact that Moses had not
yet engaged in family therapy with B.S. and her children. Furthermore, Moses was not
B.S.'s individual therapist and she admitted it was possible B.S. had dealt with her PTSD.
B.S.'s individual therapist did not testify. Moses' main concern was how B.S. dealt with
anger and frustration. However, the only evidence that Moses presented of B.S.'s anger
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and frustration was the fact that Moses would tell J.S. things like "You smell stinky," or,
"You should know when you have to go to the bathroom," when J.S. had defecated in his
pants. Moses testified that B.S. "engage[d] very well with the children" and interacted
appropriately with them in all other situations.

The district court concern—that unresolved PTSD could be triggered and prevent
B.S. from functioning properly—was based on speculation by Moses. For example,
Moses said that people with PTSD could be triggered and everyday parenting situations
could act as triggers. But the bathroom issue was the only example Moses could give of
inappropriate parenting. In In re D.L., No. 113,606, 2016 WL 1079474 (Kan. App. 2016)
(unpublished opinion), a therapist testified the mother had bipolar disorder and PTSD,
one of the reasons the children were in state custody was the mother's "unstable mental
condition," and she had not made progress in addressing that concern. However, the D.L.
court found: "The record supports that Mother ha[d] a mental illness, but not that it
render[ed] her unable to care for her children." 2016 WL 1079474, at *5. B.S.'s situation
is similar. Even if she had some sort of mental block or unresolved issues from her past,
the State failed to provide evidence that B.S. was unfit to be a parent.

In many ways, this case is analogous to In re H.J.P., No. 106,727, 2012 WL
1524473 (Kan. App. 2012) (unpublished decision). In H.J.P., a district court terminated a
father's parental rights based on his perceived inability to make progress over a 4-year
period in addressing the parenting issues that resulted in the child's CINC determination.
A CASA advocate testified she "felt [the father] had a violent and criminal background
and if he was not able to control his anger issues with her, he would have trouble
controlling his anger if H.J.P. made him mad." 2012 WL 1524473, at *3. In declaring the
father unfit, the court cited the CASA advocate's concern the father's "attitude may
present problems in the future when dealing with teachers and others." 2012 WL
1524473, at *3. The court just did not think that the father could handle parenting 24
hours a day, 7 days a week. The father did have three witnesses testify in his favor, but
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they only had minimal interactions with him in the 2 months leading up to the
termination hearing. The guardian ad litem and CASA advocate both recommended
termination. The H.J.P. court reversed the district court's decision. 2012 WL 1524473, at
*8. It reasoned that "[a]lthough the district court seemed concerned about what might
happen in the future if it did not sever Father's rights, it had very little concrete evidence
to support a finding of unfitness and certainly not enough to meet the higher burden of
clear and convincing evidence." 2012 WL 1524473, at *7.

Here, as in H.J.P., there were professionals who thought B.S.'s emotional issues
rendered her unable to parent 24 hours a day, 7 days a week. But, the professionals here
were also unable to provide clear and convincing evidence that B.S.'s emotional problems
had interfered with her parenting, other than her frustration when dealing with J.S.'s toilet
training issue.

Some distinguishing factors between H.J.P. and this case are that the father had at
least two unsupervised visits with H.J.P. every week and H.J.P.'s foster parents testified
that he was a good parent. B.S. had overnight visits, but they were changed to supervised
visits after the balloon appeared in A.H.'s diaper. There was testimony that the foster
parents had concerns on some of B.S.'s visits, but the foster parents did not testify so it is
unclear what those concerns were. In these ways, it is more difficult to decide this case
than H.J.P.

In addition to holding that B.S. was unfit due to mental deficiency, the district
court also held there was a failure of reasonable efforts to rehabilitate the family. The
court recognized that B.S. had carried out a reasonable plan, stating "if this was a IKEA
picture direction of what you have to do to work towards reintegration, [B.S.] has
completed each and every one of those steps." The court's concern was that B.S. admitted
to learning very little (or nothing at all) from her parenting classes. The court said that
B.S. seemed to have a mental block that prevented her from understanding her children's
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needs. Again, however, there was little evidence that tied her failure to learn or her
mental block into being an unfit parent. B.S. clearly had the mental capacity to obtain
stable housing and income, attend all of the court-ordered classes, and successfully
complete her other orders.

Finally, the district court held that B.S.'s condition was unlikely to change in the
foreseeable future and it would be in the best interests of the children to terminate her
parental rights.

Overall, the district court's opinion seems to be based on what might happen if
parental rights were not terminated, not on the evidence of what had actually happened.
This is not like many other TPR cases, as there are "no allegations of addiction, no
allegation of filthy living conditions, no allegations of a dangerous relationship with a
boyfriend, and no allegations of a lack of interest in the children." In re K.R., 43 Kan.
App. 2d 891, 904-05, 233 P.3d 746 (2010) (another case where it was alleged that a
mother had "not made progress" in her conditions of reintegration). This is still a very
difficult decision, because the judge and two professionals, all of whom have extensive
experience with the case, recommend termination. The children have been away from
B.S. for over 3 years at this point. That is half of J.S.'s life and almost all of A.H.'s life.
Additionally, we must look at the evidence in the light most favorable to the State.
However, because the district court and the professionals failed to prove specific,
concrete examples of B.S.'s unfitness to be a parent, the evidence does not show that it is
highly probable that B.S. is unfit to be a parent. B.S. "may not be the best model of
motherhood," but that is not the standard that she has to meet. 43 Kan. App. 2d at 904.

Reversed and remanded for further proceedings.