In re L.B. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,244
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
IN THE INTEREST OF L.B.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER, judge. Opinion filed February 4,
2022. Affirmed.
Laura E. Poschen, of Law Office of Laura E. Poschen, of Wichita, for appellant.
Kristi D. Allen, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before GARDNER, P.J., BRUNS and CLINE, JJ.
PER CURIAM: Father appeals the termination of his parental rights as to his minor
daughter, L.B, who was born in 2015. On appeal, Father challenges the district court's
findings that he is unfit and that his unfitness is unlikely to change in the foreseeable
future. Father also challenges the district court's finding that the termination of his
parental rights would be in L.B.'s best interests. Based on our review of the record on
appeal, we find that the district court's findings of fact and conclusions of law were based
on clear and convincing evidence. We also find that a preponderance of evidence in the
record on appeal supports the district court's conclusion that termination of Father's
parental rights is in L.B.'s best interests. As a result, we conclude that the district court
did not err by terminating Father's parental rights under the circumstances presented in
this case. Thus, we affirm the judgment of the district court.
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FACTS
Mother and Father were married in 2015, and L.B. was born the same year.
Father's paternity as to L.B. was subsequently established in a separate action brought in
the district court. Although L.B. is the only child that Father and Mother have together,
Father has other adult children from prior relationships. The relationship between L.B.'s
Father and Mother included allegations of domestic violence against each other. The
record reflects that some of the arguments between L.B.'s parents have been in her
presence. In July 2021, Father and Mother were divorced.
In February 2019, Father was convicted of domestic battery against Mother in the
Wichita municipal court. In addition, both parents have filed multiple protection from
abuse (PFA) petitions against each other. Even though most of the PFA actions have been
dismissed before final resolution, Father successfully obtained a final PFA order against
Mother in July 2020. However, Father voluntarily dismissed the PFA action in March
2021.
In July 2019, Wichita police officers took L.B.—who was then four years old—
into protective custody after a welfare check at Mother's residence. The officers found
L.B. with a neighbor, who reported seeing Mother stumbling up the stairs to her
apartment and smelling like alcohol as well as feces. Because Father was being
investigated by the Department of Children and Families (DCF) for allegations of abuse
against L.B., the officers took the child into protective custody. On July 15, 2019, the
State filed a child in need of care (CINC) action.
The district court held a temporary custody hearing a few days later. Father
waived his right to an evidentiary hearing and Mother did not appear. As a result, the
district court placed L.B. in the temporary custody of DCF with out of home placement
with her maternal grandmother. In September 2019, the district court held an adjudication
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and disposition hearing in the CINC action. Neither Father nor Mother contested the
allegations asserted by the State in the CINC petition. Accordingly, the district court
adjudicated L.B. to be in need of care and ordered her to remain in the temporary custody
of DCF with out of home placement with her maternal grandmother. The district court
also authorized DCF to place L.B. with Father—if appropriate—with ten days' prior
notice to all parties.
In December 2019, the district court placed L.B. in the residential custody of
Father and gave him discretion over any visitation with Mother. In June 2020, L.B. was
returned to her maternal grandmother's home after Father was arrested for domestic
battery against Mother. Thereafter, in November 2020, the State asked the district court
to find Father and Mother to be unfit and to terminate their parental rights as to L.B.
The State alleged that Father was unfit for the following reasons:
• "[T]he 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. 2020 Supp. 38-2269(b)(3).
• "[F]ailure of reasonable efforts made by appropriate public or private agencies to
rehabilitate the family." K.S.A. 2020 Supp. 38-2269(b)(7).
• "[L]ack 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. 2020 Supp. 38-2269(b)(8).
• "[F]ailure to assure care of the child in the parental home when able to do so."
K.S.A. 2020 Supp. 38-2269(c)(1).
• "[F]ailure to carry out a reasonable plan approved by the court directed toward
the integration of the child into a parental home." K.S.A. 2020 Supp. 38-2269(c)(3).
In the motion, the State also listed several "[c]oncerns" relating to Father, which
included:
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"Father failed to provide a safe and stable living environment for [L.B.]. Father and
Mother have engaged in domestic violence incidents in the presence of [L.B.]. Father did
not protect [L.B.] from Mother's alcohol abuse. Father failed to protect [L.B.] from
Mother's instability and poor judgment. Father did not intervene on behalf of his child to
protect [L.B.] from Mother's mental health and substance abuse issues. There were
concerns for [L.B.]'s safety while in Father's care. Father has a history of domestic
violence and there were concerns for his ability to protect [L.B.] from Mother's
behaviors. Father did not make the necessary changes to his lifestyle to keep [L.B.] safe."
In addition, the State asserted that Father: (1) used drugs and failed to address his
drug problem through treatment; (2) allowed inappropriate individuals to live in his house
or on his property; and (3) continued to engage in domestic violence situations with
Mother.
On May 18, 2021, the district court held an evidentiary hearing on the motion to
terminate Father and Mother's parental rights. Although Father moved for a continuance
because he had recently admitted to substance abuse and wanted the opportunity to
complete outpatient treatment, both the State and guardian ad litem (GAL) for L.B.
opposed the motion. They argued that the same issues had been present since the initial
filing of the CINC action and that a prompt permanency determination would be in L.B.'s
best interests. In denying the request for a continuance, the district court explained that
the CINC action had been pending for nearly two years since the initial CINC filing and
that it would not be in L.B.'s best interests to delay the proceedings.
Because Mother was not present at the hearing, the district court found her to be in
default, admitted proffered evidence as to Mother, and terminated her parental rights. The
State then presented testimony from several witnesses, including Darcia McDowell—a
licensed mental health therapist; Leanne Wonser—the case manager assigned by Saint
Francis Ministries (SFM) to work with the family, Amanda Galloway—the SFM case
supervisor. The record reflects that the State also called Father as a witness. After
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listening to the evidence and hearing the arguments of counsel, the district court took the
matter under advisement.
On May 20, 2021, the district court announced its decision to terminate Father's
parental rights. In support of its ruling, the district court made detailed oral findings on
the record. In doing so, the district court discussed the relationship between Father and
Mother, Father's drug abuse, and the environment at Father's home. Regarding the
relationship between the parents, the district court found it to be "extremely tumultuous"
and took judicial notice of court records relating to the various legal proceedings
involving Father and Mother between 2017 and the time of the termination hearing. The
court noted that despite successfully obtaining a PFA against Mother in July 2020, Father
admitted to continuing to contact her up until the date of the termination hearing.
Specifically, the district court found
"The history of these parents illustrates that neither party is serious about ending contact
with the other. [Father] testified that within this month [Mother] has threatened to kill
him, which has happened frequently throughout their relationship, and he continues to
have contact with her.
"The Court finds that the relationship between [Father] and [Mother] continues to
this day and it is highly toxic and highly dangerous to both of them. More importantly—
the toxic and ongoing relationship of the parents, even more importantly, it is dangerous
to [L.B.], and she cannot return to [Father]'s home in the foreseeable future because the
environment would be inappropriate and dangerous for the child."
As for Father's drug use, the district court found that Father submitted positive hair
follicle tests for methamphetamine five times between April 2020 and January 2021. The
district court also found that Father testified that he never knowingly used an illegal drug
and does not need substance abuse treatment. The district court found that Father's
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testimony was not credible because it contradicted the reasons he had given for
requesting a continuance of the hearing in order to address substance abuse issues.
As for Father's living conditions, the district court found that his testimony about
other individuals no longer living in the residence or on the property was not credible. In
particular, the district court found the inconsistencies in the Father's testimony about
S.K.—who was using methamphetamine while living on Father's property and was a
felon convicted of aggravated endangerment of a child—to be significant. The court
emphasized that Father included his own address as the service address for S.K. in
protective orders he filed against him in December 2020 and February 2021, which
would have been after he had allegedly evicted him from his property. The district court
found that "[t]he credible evidence shows that S.K. was living at [Father]'s residence
from October 2019 until at least February 2021, and those dates include the entire time
that [L.B.] was reintegrated with [Father] at that address." The district court further found
that this timeline meant that Father failed to properly notify case workers about
individuals living at his address.
Ultimately, the district court found the State had proven by clear and convincing
evidence that Father was unfit under the following statutory factors:
• "[T]he 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. 2020 Supp. 38-2269(b)(3).
• "[P]hysical, mental or emotional abuse or neglect or sexual abuse of a child."
K.S.A. 2020 Supp. 38-2269(b)(4).
• "[F]ailure of reasonable efforts made by appropriate public or private agencies to
rehabilitate the family." K.S.A. 2020 Supp. 38-2269(b)(7).
• "[L]ack 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. 2020 Supp. 38-2269(b)(8).
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• "[F]ailure to assure care of the child in the parental home when able to do so."
K.S.A. 2020 Supp. 38-2269(c)(1).
• "[F]ailure to carry out a reasonable plan approved by the court directed toward
the integration of the child into a parental home." K.S.A. 2020 Supp. 38-2269(c)(3).
As a result, the district court concluded:
"[Father] is unfit by reason of conduct or condition which renders him unable to care
properly for [L.B.], and the conduct or condition is unlikely to change in the foreseeable
future. I find that it is highly probably that the facts asserted by the State are true, and,
also, I find the facts true that I've listed out here today in my findings of fact."
"The Court has considered whether termination of parental rights as requested in
the State's motion is in the best interest of [L.B.], and I find that termination of [Father]'s
parental rights in this case is in the best interest of [L.B.]."
....
"I order the parental rights of [Father] terminated pursuant to K.S.A 38-2269(a). I
order [L.B.] placed in the custody of DCF for adoption or other placement. I order that
DCF has discretion whether or not a final visit should occur and also the logistics of that
visit if it is going to occur."
The district court's decision was journalized on June 18, 2021, and Father
subsequently filed a timely notice of appeal.
ANALYSIS
Issues Presented
Father raises two issues on appeal. First, whether the State presented clear and
convincing evidence to establish Father's present unfitness and that his unfitness was
unlikely to change in the foreseeable future. Second, whether the district court erred in
concluding that the termination of Father's parental rights is in L.B.'s best interests. In
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response, the State contends that it did present clear and convincing evidence to establish
that Father is unfit and that his unfitness is unlikely to change in the foreseeable future.
Likewise, the State contends that the district court appropriately held that termination of
Father's parental rights is in L.B.'s best interests.
Standard of Review
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, 758-59, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982); Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d
49 (2000); see In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Accordingly,
the State may terminate the legal rights of a parent only upon "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. 2020 Supp. 38-2269(a). If a district court makes
such a finding, it must then consider whether termination is in the best interests of the
child based on a preponderance of evidence. Ultimately, the primary concern of both
district courts and appellate courts is the physical, mental, and emotional health of the
child. K.S.A. 2020 Supp. 38-2269(g)(1).
When reviewing a finding of parental unfitness, we must determine—based on a
review of all the evidence in a light most favorable to the State as the prevailing party—
whether "a rational fact-finder could have found that decision 'highly probably, i.e.,
[supported] by clear and convincing evidence.'" In re M.S., 56 Kan. App. 2d 1247, 1255-
56, 447 P.3d 994 (2019), quoting In re B.D.-Y., 286 Kan. at 705. Moreover, we are not to
reweigh evidence, pass on the credibility of witnesses, or decide disputed questions of
fact. Instead, we must resolve any conflicts of evidence in favor of the prevailing party.
In re M.S., 56 Kan. App. 2d at 1256.
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When assessing whether a parent's present unfitness will continue for the
foreseeable future, courts may appropriately look to a parent's history. See In re K.L.B.,
56 Kan. App. 2d 429, 447, 431 P.3d 883 (2018). Moreover, courts measure the
foreseeable future from the child's perspective—which often differs from an adult's
perception of time—and this perspective typically calls for a prompt permanent
disposition. K.S.A. 2020 Supp. 38-2201(b)(4); In re R.S., 50 Kan. App. 2d 1105, 1117,
336 P.3d 903 (2014); see In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008). Here,
the district court found Father was unfit based on six statutory factors. Because Father
combines discussion of some of these factors, we will address each factor as he frames it
in his brief.
Finding of Unfitness
K.S.A. 2020 Supp. 38-2269(b)(3)
A district court may terminate parental rights if there is clear and convincing
evidence of "the 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. 2020 Supp. 38-2269(b)(3). On appeal, Father
argues that the district court ignored evidence that the positive drug tests were somehow
altered or resulted from Father unknowingly consuming methamphetamine. In support of
this argument, Father points to a hair follicle test that was negative notwithstanding
multiple tests that were positive for use of methamphetamine.
The State need not prove by direct evidence that a parent's drug use is—in and of
itself—harmful to a child where clear and convincing evidence shows that the parent's
failure to acknowledge his drug issues creates a significant impediment towards
reintegration. See In re C.A.G.-V., No. 113,334, 2015 WL 5224828, at *4 (Kan. App.
2015) (unpublished opinion) ("While there may not be direct evidence that Father's drug
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use was in and of itself harmful to C.A.G.-V., there is clear and convincing evidence that
Father's failure to acknowledge his drug issues created a significant impediment towards
reintegration."). Based on our review of the record, we find the same is true here.
In this case, the record contains evidence that Father abused drugs and that his
failure to acknowledge his drug use significantly impeded reintegration. In particular,
Father submitted multiple hair follicle samples that tested positive for methamphetamine
both during and after the six-month period where L.B. was residing in his home. Even
though the district court only mentioned positive test results from April 11, 2020; August
11, 2020; October 16, 2020; October 27, 2020; and January 6, 2021, in its ruling, a
review of the record also reveals that he tested positive for methamphetamine on January
8, 2020; March 3, 2020; and May 6, 2020. The district court also expressly found that
Father's testimony about his substance abuse was not credible. Father was also unable to
provide documentation at the hearing to corroborate his claim that independent testing
produced negative results for methamphetamine.
Viewing the record in the light most favorable to the State, a rational factfinder
could have found by clear and convincing evidence that Father's drug use rendered him
unable to parent L.B. at the present or in the foreseeable future. Accordingly, we find the
district court's reliance on K.S.A. 2020 Supp. 38-2269(b)(3) as a factor in terminating
Father's parental rights was proper.
K.S.A. 2020 Supp. 38-2269(b)(4)
A district court may also terminate parental rights based on "physical, mental or
emotional abuse or neglect or sexual abuse of a child." K.S.A. 2020 Supp. 38-2269(b)(4).
Here, Father contends the district court erred in relying on this factor because there
is no evidence showing he abused L.B. The State points out that there is evidence in the
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record to establish that L.B. observed domestic violence between Father and Mother.
Also, there is evidence that observing such violence was traumatic for L.B. In addition,
the State argues that Father failed to accept responsibility for his role in continuing the
toxic relationship with Mother.
Father admits to engaging in arguments with Mother in L.B.'s presence and that
his relationship with Mother did not present a healthy environment for L.B. Further,
L.B.'s therapist testified that being present during this fighting was emotionally traumatic
for L.B. because she would "feel unsafe and fearful and scared." The therapist also
testified that Father used L.B.'s therapy sessions in an attempt to address his ongoing
issues with Mother instead of focusing on L.B.'s emotional needs. Yet despite the
obvious issues in his relationship with Mother, Father continued engaging with her and
allowed contact to occur. Father also mentioned protecting L.B. from Mother as a basis
for obtaining a PFA, yet he still chose to dismiss the final PFA order.
Viewing the record in the light most favorable to the State, a rational fact-finder
could have found by clear and convincing evidence that Father inflicted mental or
emotional abuse or neglect on L.B. through his actions. Moreover, there is clear and
convincing evidence that this condition was unlikely to change in the foreseeable future
based on Father's repeated contact with Mother that continued up until the date of the
termination hearing. The district court's reliance on K.S.A. 2020 Supp. 38-2269(b)(4)
was proper.
K.S.A. 2020 Supp. 38-2269(b)(7) & K.S.A. 2020 Supp. 38-2269(c)(3)
A district court may terminate parental rights based on the "failure of reasonable
efforts made by appropriate public or private agencies to rehabilitate the family." K.S.A.
2020 Supp. 38-2269(b)(7). Likewise, a court may terminate parental rights due to a
parent's "failure to carry out a reasonable plan approved by the court directed toward the
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integration of the child into a parental home." K.S.A. 2020 Supp. 38-2269(c)(3). In his
brief, Father combines these factors. He contends the evidence presented by the State is
insufficient to support a finding that reasonable efforts made by SFM failed to
rehabilitate the family or that he failed to carry out a reasonable plan directed toward
reintegration.
Father fails to show that the district court's findings on these grounds are not
supported by clear and convincing evidence in the record. Although there is no dispute
that Father technically complied with many tasks set forth in his case plan, the evidence
presented at the hearing shows that he failed to address SFM's primary concern by not
acknowledging the traumatic effect of his toxic relationship with Mother on L.B. Even
considering SFM's recommendation that Father and Mother cohabitate during the six
months when L.B. was reintegrated, the record reveals that SFM actively worked to
rehabilitate the family.
As Father acknowledges, he continued to contact Mother and engaged in
arguments with her. This occurred despite Father having taken a domestic violence class
and acknowledging that their relationship did not create a healthy environment for L.B.
As such, the evidence shows that SFM appropriately worked with Father to provide him
with a reasonable opportunity for reintegration to be successful. However, Father was
unsuccessful carrying out the plan. See In re M.S., 56 Kan. App. 2d at 1257.
Viewing the record in the light most favorable to the State, a rational fact-finder
could have found by clear and convincing evidence that reasonable efforts made by SFM
failed to rehabilitate the family and that Father failed to carry out a reasonable
reintegration plan. Similarly, a rational factfinder could have found by clear and
convincing evidence that Father would be unable to do so in the foreseeable future. As
such, we find the district court's reliance on K.S.A. 2020 Supp. 38-2269(b)(4) and K.S.A.
2020 Supp. 38-2269(c)(3) was proper.
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K.S.A. 2020 Supp. 38-2269(b)(8) & K.S.A. 2020 Supp. 38-2269(c)(1)
Lastly, a district court may terminate parental rights due to "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. 2020 Supp. 38-2269(b)(8). Similarly, a court may terminate
rights based on "failure to assure care of the child in the parental home when able to do
so." K.S.A. 2020 Supp. 38-2269(c)(1). Again, Father contends there was not sufficient
evidence presented by the State to support these grounds for terminating his parental
rights. He asserts that SFM and the district court placed him a "Catch-22" position by
requiring him to admit to allegations of that he was using methamphetamine and that he
was in an abusive relationship with Mother in order to retain his parental rights. In
response, the State argues that Father overlooks evidence that his own behaviors and
choices resulted in the district court's decision to terminate his parental rights.
In support of his argument, Father cites In re A.T., No. 123,690, 2021 WL
4128249 (Kan. App. 2021) (unpublished opinion). In that case, we considered whether a
mother's refusal to admit to a specific incident of abusing her child was sufficient—in
and of itself—to support a finding that her unfitness was unlikely to change in the
foreseeable future. In terminating the mother's parental rights, the district court relied on
a single incident in which one of her children sustained severe burns to her feet while
taking a bath in mother's care. In reversing the district court, the panel found that mother's
refusal to confess to the single incident was not sufficient "standing alone" to constitute
"clear and convincing evidence that in the foreseeable future Mother would not adjust her
conduct to meet the needs of her children." 2021 WL 4128249, at *8.
Unlike In re A.T., there is evidence in the record of multiple issues reflecting on
Father's unfitness as a parent both in the present and in the foreseeable future. Moreover,
the expectation of those working with the family was that Father would simply
acknowledge his own actions—including his drug use and relationship issues that
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impacted his ability to parent—and not that he had committed a crime. As discussed
above, the evidence in the record establishes that Father continued contacting Mother
despite the repeated allegations of domestic violence. Furthermore, L.B.'s therapist
testified it would be important for Father to take responsibility for his role in the incidents
with Mother that caused trauma and emotional instability in L.B. In addition, SFM case
workers echoed these sentiments. As also discussed above, the district court expressly
found that Father's denial that he used methamphetamine was not credible and it is not
our role to reweigh credibility.
Viewing the record in the light most favorable to the State, a rational fact-finder
could have found by clear and convincing evidence that Father's lack of effort to adjust
his circumstances to meet L.B.'s needs rendered him presently unfit at the time of the
termination hearing and was sufficient to establish that this condition was unlikely to
change in the foreseeable future. Thus, we find the district court's reliance on K.S.A.
2020 Supp. 38-2269(b)(8) & K.S.A. 2020 Supp. 38-2269(c)(1) was proper.
Best Interests of the Minor Child
After finding a parent unfit and that such unfitness is reasonably likely to continue,
a district court next determines, by a preponderance of the evidence, if termination of
parental rights is "in the best interests of the child." K.S.A. 2020 Supp. 38-2269(g)(1); In
re R.S., 50 Kan. App. 2d at 1116. This determination gives "primary consideration to the
physical, mental and emotional health of the child" and involves weighing termination
against the parent's continued presence. K.S.A. 2020 Supp. 38-2269(g)(1); In re K.R., 43
Kan. App. 2d 891, Syl. ¶ 7, 233 P.3d 746 (2010). We will only overturn a district court's
best-interests determination when it constitutes an abuse of discretion. In re R.S., 50 Kan.
App. 2d 1105, Syl. ¶ 2. A district court exceeds the latitude it is afforded and abuses its
discretion if no reasonable person could agree with its decision or if its conclusion was
based on a factual or legal error. 50 Kan. App. 2d at 1118. Because Father does not point
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to a specific legal or factual error, the question becomes whether no reasonable person
would reach the same conclusion as the district court.
Father argues the district court's decision was unreasonable because of the bond he
has established with L.B. as well as his love for her. Although he acknowledges that it
would not be in L.B.'s best interests to expose her to domestic violence, drug use or those
who abuse drugs, Father asserts that he has taken steps to positively adjust his
circumstances. Although this is a difficult case because Father has a desire to parent L.B.,
we do not find that the district court abused its discretion in concluding that termination
of his parental rights is in L.B.'s best interests.
A review of the record reveals that Father could not take advantage of the
opportunities and resources available to him to resolve his problems. Throughout the
nearly two years between the initial CINC filing and the final termination order, Father
repeatedly failed to make significant progress on resolving the issues that impact his
ability to parent. He continued to use drugs, lived with those who abused drugs, and
continued to have contact with Mother notwithstanding their toxic relationship. Based on
the evidence presented, we do not find that the district court abused its discretion in
determining that the termination of Father's parental rights is in L.B.'s best interests.
CONCLUSION
In summary, we conclude based on our review of the record on appeal in the light
most favorable to the State that a rational factfinder could have found by clear and
convincing evidence that Father is unfit to parent L.B. and that his unfitness to do so was
unlikely to change in the foreseeable future. Moreover, it is important to recognize that
any one of these factors standing alone may be sufficient to establish grounds for
termination of parental rights. K.S.A. 2020 Supp. 38-2269(f). Here, we find it to be
significant that L.B. was four years old at the time she was placed into protective custody
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and is now nearly seven years old. As such, this action has been ongoing for a substantial
period of her life. The district court did not abuse its discretion in determining that the
termination of Father's parental rights is in L.B.'s best interests.
Affirmed.
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