In re W.S.

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NOT DESIGNATED FOR PUBLICATION

No. 119,118

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of W.S.,
A Minor Child.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed September 28,
2018. Affirmed.

Christopher Cuevas, of Kansas City, for appellant natural mother.

Ethan Zipf-Sigler, assistant district attorney, and Mark A. Dupree Sr., district attorney, for
appellee.

Before BUSER, P.J., GREEN and ATCHESON, JJ.

PER CURIAM: C.Y. appeals the ruling of the Wyandotte County District Court
terminating her right to parent W.S., her son. She contends the State produced
insufficient evidence that she was an unfit parent or that W.S.'s best interests would be
served by severing their relationship. The evidence established C.Y. failed to obtain
suitable housing, lacked regular employment, and never developed basic parenting skills
over the 16-month course of the case despite the ongoing efforts of social service
agencies and caseworkers. We find no legal error in the district court's decision and
affirm.


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FACTUAL AND PROCEDURAL HISTORY

C.Y. was 19 years old when she prematurely gave birth to W.S. in mid-October
2016. Because W.S. was born early and underweight, he remained in a local hospital.
During that time, C.Y. and the putative father were unable to adhere to the feeding
schedule for W.S. C.Y. also was unwilling or unable to diaper and otherwise care for
W.S. Hospital staff believed C.Y. might be intellectually impaired, inhibiting her ability
to parent W.S. safely or successfully.

After receiving a report on the situation, the Kansas Department for Children and
Families intervened in early November 2016 and took custody of W.S. The State then
filed a petition in the district court to have W.S. declared a child in need of care. Social
service agencies and caseworkers developed a plan that would permit C.Y. to regain
custody of W.S. and to go forward with him as an integrated family unit. The plan
required C.Y. to meet various objectives designed both to impart skills so she could
adequately parent W.S. and to develop a nurturing home environment in which she could
apply those skills.

Ultimately, the district court determined those efforts to mold C.Y. and W.S. into a
viable family unit had failed. The State filed a motion to terminate C.Y.'s parental rights.
The district court held an evidentiary hearing on the termination motion in February
2018. The evidence showed that in the 16 months between DCF's intervention and the
termination hearing:

• C.Y. had identified several men as possibly being W.S.'s father. Paternity testing
had excluded all of them. At the hearing, C.Y. disclaimed knowing who might be the
father, given the test results.

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• C.Y. failed to maintain suitable housing. She first lived with one of the men she
believed to be W.S.'s father. She briefly lived with her own father. She then moved in
with a new boyfriend for about four months in early 2017. During that time, C.Y. had no
contact with W.S. and limited contact with her assigned caseworkers. After the boyfriend
became physically abusive, C.Y. moved back with her father and continued to live with
him at the time of the termination hearing.

• C.Y. had intermittent employment at a fast food restaurant and at an area hotel.
She had lost the hotel job and was looking for work at the time of the termination
hearing. Even when C.Y. was working, the evidence didn't establish she earned enough to
support herself and W.S. She was financially dependent upon her father.

• C.Y.'s principal caseworker concluded that C.Y. and W.S. had not bonded. C.Y.
never progressed beyond relatively short supervised visits with W.S., and he didn't really
recognize her as his mother. According to the caseworker, W.S. was doing well in a
foster placement and connected more with the foster family. Despite parenting classes
and coaching, C.Y. failed to develop basic skills and failed to appreciate taking fairly
simple steps for W.S.'s safety, such as removing objects he might put in his mouth or not
leaving him alone on a sofa after he started rolling over.

• Psychological testing and an evaluation by a licensed social worker showed that
C.Y. functioned intellectually in a low-normal range. C.Y. did not follow up on a
recommendation for a neuropsychological examination. The caseworker found C.Y.'s
father to be domineering and controlling, often intrusively interfering in status visits and
interviews. The caseworker concluded that the home environment with C.Y.'s father
would not be suitable for W.S.

C.Y.'s father loomed as an enigmatic and decidedly sinister presence in this case,
although he did not testify at the termination hearing. C.Y. had alleged and recanted on at
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least several occasions that her father had raped her when she was much younger. In
2017, C.Y. filed for a protection from stalking order in which she repeated those
allegations against him and stated he had recently raped her. At the termination hearing,
C.Y. testified that her father sometimes becomes violent with her and had raped her years
earlier. She denied he had sexually abused her recently. C.Y. testified that she had been
fearful that her father might physically abuse W.S. but no longer felt that way.

In reviewing the evidence at the close of the termination hearing, the district court
characterized C.Y.'s father as "an abusive, controlling, dangerous, and sexually violent
person." The district court stopped short of making an explicit finding that C.Y.'s father
had raped her. But the district court also said circumstantial evidence suggested C.Y.'s
father might well be W.S.'s father and no genetic testing had been done to rule out that
possibility.

In a journal entry, the district court found by clear and convincing evidence that
C.Y. was statutorily unfit as a parent because "reasonable efforts" by the involved social
service agencies had been "unable to rehabilitate the family," as provided in K.S.A. 2017
Supp. 38-2269(b)(7), and because C.Y. had made insubstantial efforts "to adjust [her]
circumstances, conduct or conditions to meet the needs of" W.S., as provided in K.S.A.
2017 Supp. 38-2269(b)(8). The district court similarly found those conditions were
unlikely to change in the foreseeable future. And the district court concluded that W.S.'s
best interests would be served by terminating C.Y.'s parental rights. C.Y. has appealed,
challenging the sufficiency of the evidence supporting each of those determinations.

LEGAL ANALYSIS

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.
Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Given the
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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 C.Y.

Having found unfitness, 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)(1). As
directed by the language of K.S.A. 2017 Supp. 38-2269(g)(1), the district court gives
"primary consideration to the physical, mental[,] and emotional health of the child." The
district court makes that determination based on a preponderance of the evidence. See 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
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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).

Here, as we have pointed out, the district court found C.Y. to be unfit based on the
two statutory grounds set forth in K.S.A. 2017 Supp. 38-2269(b)(7) and (b)(8). As to the
first, the evidence shows social service agencies and caseworkers actively tried to engage
C.Y. in various programs and opportunities to rehabilitate the family unit. Early on, C.Y.
refused to have any contact with W.S.—a choice that undoubtedly inhibited the
development of a familial relationship, especially since W.S. had been in state custody
almost from birth. Later, C.Y. failed to demonstrate parenting skills sufficient to allow
any extended or unsupervised visits with W.S., further inhibiting the mother-child
relationship.

Over the 16 months W.S. had been a ward of the State, C.Y. experienced extended
periods of unemployment and was jobless at the time of the termination hearing. The
record failed to show C.Y. could sustain sufficiently remunerative employment to support
W.S. Similarly, C.Y. never acquired suitable housing for W.S. For most of the time, she
lived either with a boyfriend in a relationship that became abusive and ultimately failed
or with her father. For the reasons the district court found, a household in which C.Y.'s
father resided would have been unsuitable for W.S. (But for extraordinary necessity, it is
hard to see how it was even marginally suitable for C.Y. alone.) On appeal, C.Y. does not
cite evidence that the social service agencies somehow neglected her or failed to make
available adequate training, counseling, or other rehabilitative services.

The same circumstances bear on the second statutory ground. C.Y. simply lacked
the wherewithal to change to the degree necessary to obtain regular employment and to
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acquire adequate housing for herself and W.S. Rather, she remained financially and
emotionally bound to her father in a destructive relationship she described at the hearing
as having been violent and sexually abusive.

From the evidence, we must conclude a rational fact-finder could determine to a
high probability that C.Y. was unfit to parent W.S. at the time of the termination hearing
in the ways the district court identified. Without belaboring the evidence, we find like
support for the district court's determination that C.Y.'s unfitness was unlikely to change
in the foreseeable future. The evidence essentially showed that C.Y. had literally made no
progress during the 16 months between W.S.'s birth and the termination hearing. She
remained unemployed and living with her father with no tangible expectation that those
circumstances would change anytime soon. C.Y. didn't develop any sort of extended
relationship with W.S. and couldn't master basic parenting skills to meet the needs of an
infant or a toddler. Again, nothing in the evidence suggested C.Y. was headed toward
materially correcting those deficiencies even well beyond the horizon.

In gauging the foreseeable future, the courts should use "child time" as the
measure. As the Revised Kansas Code for Care of Children, K.S.A. 2017 Supp. 38-2201
et seq., recognizes, children experience the passage of time in a way that makes a month
or a year seem considerably longer than it would for an adult, and that different
perception typically points toward to a prompt, permanent disposition. K.S.A. 2017 Supp.
38-2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re G.A.Y.,
No. 109,605, 2013 WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion) ("'child
time'" differs from "'adult time'" in care proceedings "in the sense that a year . . . reflects
a much longer portion of a minor's life than an adult's"). Here, that factor takes on
particular significance, given W.S.'s very young age and the lack of any real parental
relationship between him and C.Y.

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Finally, we consider the district court's finding that W.S.'s best interests would be
served by terminating C.Y.'s parental rights. Our standard of review on this point is
considerably more deferential to the district court. We perceive no shortcomings in the
district court's assessment of the evidence or the applicable legal principles. The
remaining component of the abuse of discretion standard simply asks whether no
reasonable district court would come to the same conclusion under comparable
circumstances. And we simply answer other district courts would. Here, as we have
stated, the evidence shows C.Y. had a limited relationship with W.S., so the emotional
impact on W.S. in severing that relationship would be commensurately curtailed.
Conversely, the upheaval to W.S. in removing him from a foster family and placing him
in what can only be described as a psychologically toxic environment with C.Y. and her
father—and one in which he potentially could witness or experience physical abuse—
would be markedly adverse to his best interests.

We find the district court acted well within the evidence and the law in terminating
C.Y.'s parental rights with respect to W.S.

Affirmed.