In re T.D.H.

1

NOT DESIGNATED FOR PUBLICATION

No. 119,030

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE INTERESTS OF
T.D.H., M.B.F., AND M.B.F.,
MINOR CHILDREN.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed August 3, 2018.
Affirmed.

Jordan E. Kieffer, Dugan & Giroux Law, Inc., of Wichita, for appellant.

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

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

PER CURIAM: Mother appeals the termination of her parental rights to her
daughters, T.D.H. and M.B.F., and her son, Ma.B.F. She contends there was not clear and
convincing evidence supporting the district court's decision to terminate her parental
rights. After reviewing the evidence presented at her termination hearing, we disagree.
The State presented sufficient evidence for the district court to find, by clear and
convincing evidence, Mother was unfit and termination of her parental rights was in the
best interests of the children. Thus, we affirm.

Following allegations that Mother's boyfriend, M.T., had sexually abused six
children, the State petitioned to declare T.D.H., M.B.F. and Ma.B.F. children in need of
care (CINC). The district court adjudicated all three children CINC. A little more than a
2

year after the CINC petition, the State filed motions for termination of parental rights.
The petitions alleged Mother was unfit pursuant to K.S.A. 2017 Supp. 38-2269(b)(4), (7),
(8), and (c)(3).

The hearing on the State's termination motion occurred on October 23, 2017. At
that time, T.D.H. was 14 years old and M.B.F. and Ma.B.F. were 13 years old. Mother
also has four other children: K.C., S.M., C.L.H., and C.D.H.; of these, only C.D.H. was
still a minor. In August 2017, S.M., C.L.H., and C.D.H. were all in either prison or
juvenile detention facilities. All three were living with Mother when they were arrested.

Mother admitted to living with M.T. when the children were removed from the
home. He allegedly sexually abused at least one of the children. Mother no longer lived
with M.T. but denied her children told her M.T. was touching them. Mother denied M.T.
did inappropriate things with her children. Mother also acknowledged K.C. was sexually
abused by a relative when she was 15 or 16 years old. K.C. also alleged M.T. was the
father of children she conceived while a minor.

Mother explained C.D.H. was in a juvenile detention facility after he shot himself
in the leg at her residence two months before the termination hearing. Mother was
unaware C.D.H. had a gun. At the time, C.D.H. and his girlfriend lived with Mother.
C.D.H., who was 16 years old, had two children with his 18-year-old girlfriend.

Mother testified she did not know the names of any of her caseworkers. Mother
explained she never really talked with her current caseworkers. Mother admitted her
caseworkers told her she could call at any time if she had problems but she blamed the
failure to communicate on both herself and her caseworkers.

Mother stated she had visits with T.D.H., M.B.F., and Ma.B.F. for an hour every
Monday. During visits they talked or looked at things on her phone. Mother never asked
3

for visits to be extended, but testified she wanted longer visits. Mother did not know the
name of any of her children's schools.

Mother testified she had two beds in her current residence. When Mother has
chemotherapy, her son's girlfriend stays with her to help take care of her. Mother
indicated St. Francis told her that her current residence was appropriate for the children.
Mother also noted she had obtained beds for each of the children.

Mother testified she did not complete a mental health assessment because she
believed she had already completed one. She did not realize St. Francis also wanted her
to complete a clinical evaluation. But Mother also testified she did not set up a clinical
evaluation because it cost $100 and she did not have the money. She did not contact St.
Francis to see if they could help pay for the evaluation. Additionally, Mother stated she
participated in both individual and family therapy.

Despite K.C.'s multiple instances of sexual abuse, C.D.H. and C.L.H. being
incarcerated, and C.D.H. shooting himself at her home, Mother believed her house was a
safe place for children. She believed she had changed. She testified she knew how to
control her anger, commenting that, if she did not know how to control it, she "would
have popped [the prosecutor]." Mother believed she would be a better mother to her kids
and would pay close attention to what her children were doing.

Bethany Owens, the family's therapist, testified she provided family therapy
immediately before the weekly visits. At the time of the termination proceeding, she had
conducted five therapy sessions. She indicated the family denied any problems with
communication, discipline, or problem solving so it was difficult to identify goals for
therapy. Owens noted Mother made a few attempts to get the children to pay attention
and participate in therapy but was ineffective. Mother did not say anything when M.B.F.
encouraged T.D.H. to keep fighting. Owens suggested Mother had a "permissive"
4

parenting style and did not discipline the children. Owens also noted the family was well-
bonded and loved each other. She believed she could potentially see recommending
reintegration sometime in the future.

Rebecca Thrush, Mother's caseworker from September 2016 until May 2017,
testified M.B.F. and Ma.B.F. reintegrated into their father's home in October 2016. She
testified Mother was not close to reintegration at that time; she had only completed
parenting classes. Thrush also had concerns about Mother's visitations because she often
brought additional people or discussed C.L.H. and C.D.H.'s criminal cases with the
children. Thrush also had concerns because Mother did not correct the children's behavior
and did not seem to engage with them about their lives. Thrush testified Mother did not
maintain consistent contact and often had her phone turned off or provided St. Francis
with new phone numbers. Thrush also testified Mother told her she still loved M.T.
Thrush described Mother's parenting style as "more of a friend than a parent."

Amanda Lerback, Mother's current caseworker, also testified. She testified M.B.F.
and Ma.B.F. came back into the Department of Children and Families (DCF) custody and
she was eventually assigned as the caseworker for all three children. Lerback indicated
she was concerned with the lack of documentation in St. Francis' system after she
received the case and recommended giving Mother more time to make progress. She
believed Mother was making progress. However, she subsequently developed concerns
regarding Mother's residence and the lack of secondary change. Lerback did not believe
reintegration was viable now or in the foreseeable future.

T.D.H. and M.B.F. had adoption resources available, but Ma.B.F. did not. Lerback
acknowledged it was possible all three children would age out of the system. She also
acknowledged all three children's current placements were stable, so they would not be
moving anywhere yet.

5

The district court found, by clear and convincing evidence, Mother was unfit. The
district court determined termination of parental rights was in the best interests of the
children. Specifically, the district court found K.S.A. 2017 Supp. 38-2269(b)(4), (7), (8)
and (c)(3) applied. It found Mother failed to provide a safe and stable living environment
for the children and noted multiple instances of sexual abuse in Mother's home. It also
noted Mother was unaware there was a gun or marijuana in her house. The district court
found DCF made extensive efforts to assist Mother in stabilizing her life but Mother had
not progressed. It also found Mother's testimony on many issues to be not credible. The
district court terminated Mother's parental rights. Mother appealed.

A parent has a fundamental liberty interest protected by the Fourteenth
Amendment to the United States Constitution to make decisions regarding the care,
custody, and control of the parent's child. Before a parent can be deprived of the right to
the custody, care, and control of the child, the parent is entitled to due process of law. In
re Adoption of A.A.T., 287 Kan. 590, 600-01, 196 P.3d 1180 (2008); see In re X.D., 51
Kan. App. 2d 71, 73-74, 340 P.3d 1230 (2014) (the right to be the legal parent of a child
is a fundamental right).

The Kansas Legislature has specified that the State must prove "by clear and
convincing evidence that the child is a child in need of care." K.S.A. 2017 Supp. 38-
2250. In addition to CINC adjudications, the clear and convincing evidence standard of
proof applies to all termination of parental rights cases. K.S.A. 2017 Supp. 38-2269(a).

"When this court reviews a district court's termination of parental rights, we
consider whether, after review of all the evidence, viewed in the light most favorable to
the State, we are convinced that a rational factfinder could have found it highly probable,
i.e., by clear and convincing evidence, that the parent's right should be terminated.
[Citation omitted.]." In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011).

6

In making this determination, an appellate court does not weigh conflicting
evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re
B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).

The Revised Kansas Code for Care of Children provides that the court may
terminate parental rights when a child has been adjudicated a CINC. K.S.A. 2017 Supp.
38-2269(a). The statute lists nonexclusive factors the court shall consider in determining
unfitness. K.S.A. 2017 Supp. 38-2269(b). The court must also consider a separate list of
nonexclusive factors when a child is not in the parent's physical custody. K.S.A. 2017
Supp. 38-2269(c). Any one of the factors in K.S.A. 2017 Supp. 38-2269(b) or (c) may,
but does not necessarily, establish grounds for termination of parental rights. K.S.A. 2017
Supp. 38-2269(f).

The nonexclusive factors listed in K.S.A. 2017 Supp. 38-2269 include, in relevant
part:

"(b) . . . .
(4) physical, mental or emotional abuse or neglect or sexual abuse of a
child;
. . . .
(7) failure of reasonable efforts made by appropriate public or private
agencies to rehabilitate the family;
(8) 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; and
(9) whether the child has been in extended out of home placement as a
result of actions or inactions attributable to the parent and one or more of the
factors listed in subsection (c) apply.
"(c) In addition to the foregoing, when a child is not in the physical custody of a
parent, the court, shall consider, but is not limited to, the following:
. . . .
7

(3) failure to carry out a reasonable plan approved by the court directed
toward the integration of the child into a parental home."

The district court found K.S.A. 2017 Supp. 38-2269(b)(4) applied because Mother
"failed to provide a safe and stable living environment for her children." It found K.S.A.
2017 Supp. 38-2269(b)(7) applied because the court, DCF, and St. Francis made
extensive efforts to assist Mother in stabilizing her life with very little progress. The
district court found Mother did not make an effort to adjust her circumstances. Finally, it
found K.S.A. 2017 Supp. 38-2269(c)(3) applied because Mother failed to obtain suitable
housing and had no control over the children.

On appeal, Mother argues the district court's decision is unsupported by clear and
convincing evidence. Instead, she asserts she "demonstrated progress in every single area
the district court cited." Citing various parts of her testimony, Mother contends she had
moved to an appropriate home St. Francis approved of. She also asserted she was a
"totally changed" person who no longer associated with the alleged sexual abuser.
Finally, Mother alleged the case plan tasks were unclear and confusing which
"substantially hindered" her ability to complete case plan tasks. Mother essentially asks
this court to reweigh the evidence and find in her favor. We cannot.

When determining whether factual findings are supported by clear and convincing
evidence, an appellate court does not weigh conflicting evidence, pass on the credibility
of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 705. The district
court said: "The Court does not find, again, based upon the demeanor of the witnesses,
hearing the testimony as a whole, I do not find the respondent's testimony in a lot of areas
to be credible." Thus, we cannot rely on Mother's testimony instead of the other
witnesses. Even if the district court had not made this credibility determination, Mother
would not have been entitled to relief. Viewed in the light most favorable to the State,
clear and convincing evidence supports the district court's decision.
8

There was clear and convincing evidence Mother failed to provide a safe and
stable living environment for her children. Just a few months before trial, C.D.H.,
Mother's 16-year-old son, shot himself in the foot while Mother was home and is now
residing at a juvenile detention facility. The two older children living in the home have
been charged with murder in separate incidents. Mother did not believe M.T. touched any
of her children inappropriately and did not realize M.B.F. and T.D.H. testified at M.T.'s
trial. Mother acknowledged her sister's husband sexually assaulted her oldest daughter,
K.C., in her home when K.C. was 15 or 16 years old. In addition, K.C. filed a paternity
action against M.T. alleging he was the father of at least two of her children, who she
conceived while under the age of 18. Furthermore, Lerback testified she had concerns
with Mother's housing based on the number of bedrooms, its size, and the recent presence
of guns and drugs.

Similarly, there was clear and convincing evidence St. Francis made extensive
efforts to rehabilitate the family and Mother failed to carry out a reasonable plan toward
the reintegration of the children into her home. Mother failed to maintain regular contact
with St. Francis and did not know her caseworkers' names. Thrush testified she did not
see progress during her tenure as Mother's caseworker. Lerback did not see any
secondary change; Mother never put what she had learned into action.

Finally, there was clear and convincing evidence Mother did not make an effort to
adjust her circumstances, conduct, or conditions to meet her children's needs. Mother was
ineffective at getting the children to pay attention and participate during therapy. Mother
did not respond when one of the children encouraged T.D.H. to fight. Mother has a
permissive parenting style and does not discipline her children. The family has denied
any problems with communication, discipline, or problem solving.

Viewed in the light most favorable to the State, there is clear and convincing
evidence supporting the district court's termination of Mother's parental rights. She failed
9

to provide a safe and stable living environment for her children. Mother failed to carry
out a reasonable plan toward the reintegration of the children and did not make an effort
to adjust her circumstances, conduct, or conditions to meet her children's needs.
Furthermore, despite Mother's assertions otherwise, there is no evidence she would be fit
in the foreseeable future. Both Thrush and Lerback, Mother's caseworkers from
September 2016 until the termination hearing, testified they saw no secondary change in
Mother's behavior; she never acted on the information she learned. Clear and convincing
evidence supports the district court's finding of unfitness.

Upon making a finding of unfitness of the parent, "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. 2017 Supp. 38-2269(g)(1). In making such a decision, the
court shall give primary consideration to the physical, mental, and emotional needs of the
child. K.S.A. 2017 Supp. 38-2269(g)(1). "[T]he court must weigh the benefits of
permanency for the children without the presence of their parent against the continued
presence of the parent and the attendant issues created for the children's lives." In re K.R.,
43 Kan. App. 2d 891, 904, 233 P.3d 746 (2010). The district court is in the best position
to make findings on the best interests of the children; its judgment will not be disturbed
absent an abuse of discretion. In re K.P., 44 Kan. App. 2d 316, 322, 235 P.3d 1255
(2010). "A district court abuses its discretion when no reasonable person would agree
with its decision or the decision is based on a legal or factual error." In re R.S., 50 Kan.
App. 2d 1105, Syl. ¶ 2, 336 P.3d 903 (2014).

Mother argues termination of her parental rights was not in the children's best
interests. Since some of the children had only recently been placed in foster care and
there was a "real likelihood" the children would age out of the system, Mother asserts she
should have been given more time to demonstrate further progress. However, this case
has gone on for 19 months. Mother's visits with the children never progressed beyond one
hour of supervised visitation per week. Mother failed to make progress through her case
10

plan. She showed no signs of secondary change. The children deserve stability and
permanency that Mother cannot provide. A reasonable person could agree, based on all of
the facts outlined herein, with the district court's decision to terminate parental rights. The
district court did not abuse its discretion.

Affirmed.