In re M.S.

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NOT DESIGNATED FOR PUBLICATION

No. 113,913

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of M.S. and M.R.,
Minor Children Under the Age of Eighteen.


MEMORANDUM OPINION

Appeal from Reno District Court; PATRICIA MACKE DICK, judge. Opinion filed November 20,
2015. Affirmed.

Shannon S. Crane, of Hutchinson, for appellant natural mother.

Cheryl I. Allen, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

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

Per Curiam: The district court terminated the parental rights of A.R. to her two
sons, M.D.S. and M.D.R. In this appeal, she contends insufficient evidence supports the
court's finding that she was unfit to properly care for her children. Our review of the
record leads us to the opposite conclusion and we affirm the district court.

The Department for Children and Families, in May 2012, investigated an incident
of alleged sexual abuse of M.D.S. that occurred while Mother was living in Florida with
her boyfriend and the children were staying with their maternal grandmother. When
Mother became aware that there was trouble with the children, she returned from Florida
and removed the children from grandmother's care. Once the children were back in her
custody, Mother reported the incident to the police. The Department made a substantiated
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finding of abuse by M.D.S.'s maternal uncle. The Department also looked into whether
Mother acted improperly when she left the children with her mother but decided that
Mother had not been neglectful. The result of the investigation led to the agency
providing family preservation services for the family.

The Department became involved with the family again in April 2013. Staff at
M.D.S.'s school noticed M.D.S. was acting strange and had several marks on his arms.
The school nurse discovered that M.D.S. had similar welts and bruises on his back,
shoulders, and side. M.D.S. explained that his mom had whipped him with an electrical
cord because he had been playing with her cell phone. School officials informed the
police. When police officers interviewed Mother, she admitted that she had become angry
at her son for playing with her phone and had whipped him six or seven times with a
small belt. As a result, M.D.S. and M.D.R. were both removed from the home and placed
in protective custody. In May 2013, the district court determined that the children were in
need of care.

Case plans prove unsuccessful.

The first case plan developed for Mother and her children set a goal of
reintegration and outlined a number of tasks for Mother to complete. From the start,
housing and economic stability were identified as areas of concern that Mother needed to
address in order for reintegration to take place. Additionally, the plan required Mother to
complete a psychological evaluation, complete a parenting class, obtain an individual
therapy intake, and refrain from physical discipline during visitation. Indeed, Mother
completed a number of the tasks required of her. She completed a parenting class, began
personal therapy, and underwent a parenting evaluation; additionally, she conducted
herself appropriately during visitations and was employed during most of the 6 months
the plan was in effect.

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Nevertheless, as time wore on, the primary agency concerns continued to be
Mother's lack of stable housing and income. Between April 2013, when the children were
first removed from the home, and March 2015, Mother had moved six times. She
primarily lived with friends and family but also spent time at a homeless shelter and a
domestic violence shelter. At the time of the trial, Mother was living at the Domestic
Violence Association of Central Kansas (DVACK) shelter in Salina.

Mother's lack of economic stability has been a continuing problem in this case. In
April 2013, Mother was working part-time at McDonald's. She left her job at McDonald's
4 or 5 months after the children were taken from her. About 2 months later, she got a job
at Tyson's which she kept until June 2014. Sometime later Mother obtained employment
as a custodian at the junior college in Hutchinson. She remained at the junior college for
about 5 months. After she left the job at the college, Mother moved to Salina to be closer
to her children who were in foster homes there. After she got to Salina, Mother found
work as a server at two restaurants. She worked at one restaurant for just under 3 months
and at the other for about 1 1/2 months. Mother then decided to go back to school, so she
quit working to focus her attention on her schooling.

Mother is difficult to work with. Caseworkers and others who worked with her
between April 2013 and March 2015 routinely complained that she was defensive and
argumentative. Caseworkers also complained that they had difficulty keeping track of her
and communicating with her as she moved from location to location. This inability to
communicate with her or otherwise locate her led to a number of missed visits over the 2
years this case has been pending.

We must say there has been some progress. With the help of an advocate at the
domestic violence shelter, Mother has enrolled in a business administration technology
program at a vocational school. To pay for the program, Mother received Pell grants and
other financial aid. At the time of the trial, Mother testified that she felt settled into
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school and was preparing to look for a job. Moreover, the shelter's economic advocate
also worked with Mother to help her better understand why she has struggled with
positively interacting with other people.

Although she was still living at the shelter at the time of trial, Mother has taken
steps towards obtaining permanent housing. She was on the waiting list for Section 8
housing and had applied for Shelter Plus Care, a program that helps homeless individuals
with mental health issues or those who have suffered domestic violence obtain housing
and get on their feet.

While all of this is laudable, these steps did little to improve the situation of her
sons. The district court found, based on the facts recited above, that Mother had been
physically, emotionally, and mentally neglectful of the children "most recently by the
lack of effort exerted . . . to complete case plan tasks and make the changes necessary for
almost two years."

The district court further found that reasonable efforts towards reintegration had
been made but were thwarted by Mother's "inability or unwillingness to gain insight into
her problems," her "resistance to needed changes," and her lack of effort "to adjust her
circumstances, conduct or condition to meet the needs of the children." The court
concluded that the State had proven by clear and convincing evidence that after 2 years,
Mother was still "without stability or ability to adequately parent" the children and that
this inability to properly care for the children was "unlikely to change in the foreseeable
future as it hasn't changed in the two years since these cases were initiated."

On appeal, Mother argues that the State failed to prove by clear and convincing
evidence that she was "unfit by reason of conduct or condition which renders her unable
to care properly for M.D.S. and M.D.R. and that this conduct or condition was unlikely to
change in the foreseeable future."
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A brief review of the law is helpful.

When an appellate court reviews a district court's decision to terminate parental
rights, it should 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 child was in need of care.
In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).

The Revised Kansas Code for Care of Children allows a court to terminate
parental rights when a child has been adjudicated a child in need of care and the parent is
unfit because of conduct or condition that renders the parent unable to care properly for a
child. Furthermore, the conduct or condition is unlikely to change in the foreseeable
future. See K.S.A. 2014 Supp. 38-2269.

The statute lists nonexclusive factors the court shall consider in making a
determination of unfitness and contains a separate list of factors to consider when a child
is not in the physical custody of the parent. See 2014 Supp. K.S.A. 38-2269(b), (c). Any
one of the factors listed may establish grounds for termination of parental rights. Finally,
upon finding a parent unfit, "the court shall consider whether termination of parental
rights as requested in the petition or motion is in the best interests of the child." K.S.A.
2014 Supp. 38-2269(g)(1).

The district court here referred to the statutory factors as grounds for termination
of Mother's parental rights. The district court found:
 physical, mental or emotional abuse or neglect of the children;
 lack of effort on Mother's part to adjust her circumstances, conduct, or
conditions to meet the needs of the children;
 the children have been in an out-of-home placement for an extended period
of time as a result of Mother's actions or inactions;
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 and, while the children were not in Mother's custody, Mother failed to
carry out a reasonable plan approved by the court directed toward the
integration of the children into her home.

The factual record, viewed in the light most favorable to the State, supports each
of the district court's findings with clear and convincing evidence. M.D.S. and M.D.R.,
after being in foster care for nearly 2 years, were still in need of care because Mother was
not fit to care for them. Although Mother had completed a number of case goals, she had
not achieved the two that are most critical to reintegration: suitable housing and
economic stability. At the time of the termination hearing, Mother was still living in a
shelter and was unemployed.

Based on Mother's failure to achieve these goals, with significant assistance, over
the 2 years since this case was initiated, it was reasonable for the district court to
conclude that she was unlikely to become stable in the foreseeable future. This is
especially true considering our Supreme Court's instruction that child in need of care
cases must be decided with reference to "child time" rather than "adult time." See In re
J.A.H., 285 Kan. 375, 386, 172 P.3d 1 (2007).

Affirmed.