In re S.A. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,556
123,557
123,558
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of S.A., P.A., and G.A.,
Minor Children.
MEMORANDUM OPINION
Appeal from Washington District Court; KIM W. CUDNEY, judge. Opinion filed September 17,
2021. Affirmed.
Katie J. Schroeder, of Schroeder Law Office, LLC, of Beloit, for appellant natural mother.
Starla L. Borg Nelson, of Navis & Nelson, LLC, of Belleville, and Elizabeth Baskerville Hiltgen,
county attorney, for appellee.
Before BUSER, P.J., POWELL and HURST, JJ.
PER CURIAM: This is an appeal by Mother of the district court's order terminating
her parental rights to S.A., P.A., and G.A. The district court also terminated Father's
parental rights but that is the subject of a separate appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2019, the State filed a child in need of care (CINC) petition alleging that
S.A. (born in 2013), P.A. (born in 2015), and G.A. (born in 2016) were children in need
of care. The CINC petition alleged the children were outside the home unsupervised for
extended periods of time. Of note, the children were "dirty, smelled of body odor and
animals." The petition further alleged that Kansas Department for Children and Families
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(DCF) had previously removed one or more of the children from the home on prior
occasions. Moreover, within the past seven months, DCF had received six intake reports
raising concerns regarding the children's welfare.
Prior to the filing of the current CINC petition, S.A. and P.A. had on two
occasions previously been adjudicated as children in need of care in November 2015 and
November 2016. Also in November 2016, G.A. was adjudicated to be a child in need of
care. Almost three years later, in July 2019, a DCF staff member went to the parental
home to investigate a report of unsupervised children. The children advised that Mother
was home, but they were unable to wake her. A Washington County law enforcement
officer was dispatched to the home and placed the children under protective custody as
children in need of care. The CINC petition—which is the subject of this appeal—was
filed the next day. After a hearing, the district court placed the children in the temporary
custody of DCF for out of home placement. The district court also referred the family to
St. Francis Community Services (St. Francis).
On October 28, 2019, the parents submitted a statement of no contest, and the
district court adjudicated the children as being children in need of care. At the
dispositional hearing in December 2019, permanency plans were approved by the district
court. At the review hearing in June 2020, the district court ordered visitations at the
discretion of St. Francis with "therapeutic input" from the children's therapists. The
district court also ordered St. Francis to provide all therapists with the "parent/child logs,"
ordered St. Francis to "facilitate and coordinate communications with all therapists
involved," and ordered "[a]ll parties . . . to cooperate with the pending and scheduled
psychological evaluations as well as the family interaction observation."
Almost one year later, on September 23, 2020, the district court held a
permanency hearing and determined that reintegration of the family was no longer a
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viable goal. The State moved for a finding of unfitness and termination of the parental
rights of Mother and Father.
A termination hearing was held on December 21, 2020. Based on the prior CINC
adjudications and the parties' stipulations, the district court found the presumption of
unfitness under K.S.A. 2020 Supp. 38-2271(a)(3) applied because Mother and Father had
at least two prior CINC adjudications when a child was in their care. See K.S.A. 2020
Supp. 38-2271(a)(3) ("It is presumed . . . that a parent is unfit . . . if the state establishes,
by clear and convincing evidence, that: . . . (3) on two or more occasions a child in the
physical custody of the parent has been adjudicated a child in need of care.").
Upon finding the presumption existed, the burden shifted to the parents to rebut
the presumption. The district court found Mother and Father's testimony was sufficient to
meet their "low" burden of showing by a preponderance of evidence that they were not
unfit at the current time and overcome the presumption of unfitness. After making this
finding, the State proceeded with its case-in-chief and presented the testimony of multiple
witnesses. Father testified on behalf of the parents.
At the conclusion of the termination hearing, the district court found clear and
convincing evidence both parents were unfit by reason of conduct or condition which
rendered them unable to care properly for the children and the conduct or condition was
unlikely to change in the foreseeable future. K.S.A. 2020 Supp. 38-2269(a). The district
court adopted the summary of evidence recounted by the guardian ad litem "as a finding
of this Court." The district court cited the following statutory factors in support of its
termination order:
• "Emotional 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
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ongoing physical, mental and emotional needs of the child" under K.S.A. 2020
Supp. 38-2269(b)(1).
• "[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" under 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" under 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" under K.S.A. 2020 Supp. 38-
2269(b)(8).
The district court also ruled that the best interests of the children would be served
by termination of parental rights. K.S.A. 2020 Supp. 38-2269(g)(1).
Mother appeals.
SUFFICIENCY OF EVIDENCE OF MOTHER'S UNFITNESS
On appeal, Mother contends the evidence presented at the termination hearing was
insufficient to support the district court's finding that she was unfit and that her conduct
or condition was unlikely to change in the foreseeable future. Mother concedes the
district court "heard testimony to support its findings," but argues "the body of evidence
showed that [Mother] had overcome [her] challenges" and she was not "afforded an
opportunity to show" she could maintain her success in overcoming these challenges.
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If a child has been adjudicated a child in need of care, a district court may
terminate parental rights "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. 2020 Supp. 38-2269(a). After making a finding of unfitness, the district
court must consider whether termination of parental rights is in the best interests of the
child, supported by a preponderance of evidence and reviewed for an abuse of discretion.
K.S.A. 2020 Supp. 38-2269(g)(1); In re R.S., 50 Kan. App. 2d 1105, 1115-16, 336 P.3d
903 (2014).
Our standard of review provides that when an appellate court reviews a district
court's termination of 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 parent's right should be terminated.' [Citation omitted.]" In re K.H., 56 Kan. App.
2d 1135, 1139, 444 P.3d 354 (2019). In reviewing a district court's decision based on a
clear and convincing evidence standard, an "appellate court does not weigh conflicting
evidence, pass on 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 (KCCC), K.S.A. 2020 Supp. 38-
2201 et seq., authorizes a district court to terminate parental rights based on certain
statutory findings made after a child has been adjudicated a child in need of care. K.S.A.
2020 Supp. 38-2269(a). Ordinarily, the district court evaluates whether a parent is unfit
by considering a nonexclusive list of factors provided in K.S.A. 2020 Supp. 38-2269(b)
and (c). Any one of the factors standing alone may provide sufficient grounds for
termination. K.S.A. 2020 Supp. 38-2269(f).
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As mentioned earlier, the district court relied on four statutory factors to find that
Mother was an unfit parent and was unlikely to change her parenting behavior in the
foreseeable future. Each factor will be considered separately.
K.S.A. 2020 Supp. 38-2269(b)(1).
A district court may find a parent unfit if there is clear and convincing evidence
that the parent suffers from an emotional illness, mental illness, mental deficiency, or
physical disability of such duration or nature as to render that parent unable to care for
the ongoing physical, mental, and emotional needs of his or her child. K.S.A. 2020 Supp.
38-2269(b)(1). As to this factor, the district court found "the children's needs are exactly
what the parents cannot provide. . . . It's as if the—the children are lacking in the very
areas that the parents are lacking. And the parents can't fulfill the needs they don't have."
The district court's adopted findings similarly stated that the children's "needs are
significant" and the parents "stop participating and doing the things that get them in a
heathy state for these children" once the services offered by the agencies—or ordered by
the court—have ended.
Mother does not directly challenge the district court's findings under this factor but
argues that she was unable to care for the ongoing needs of her children because she was
"not provided the tools needed and [was] not given the opportunity to demonstrate [her]
parenting skills." Despite Mother's claim that she was not given the tools or opportunity
to show she can meet the needs of her children—an issue that will be analyzed later when
addressing termination under K.S.A. 2020 Supp. 36-2296(b)(7) and (8)—there is clear
and convincing evidence to support the district court's finding as to K.S.A. 2020 Supp.
38-2269(b)(1).
Erin Mellies, Mother's therapist, is a mental health and substance abuse therapist at
Pawnee Mental Health Services. Mellies provided Mother with individual therapy
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beginning in January 2020, and she testified the primary focus of their individual therapy
sessions was to address "anxiety and depressive symptoms." According to Mellies,
depending on "the level of depressive symptoms that [Mother] does at times experience,"
Mother's prognosis in meeting her goals and objectives in therapy, is "fair or good to
guarded." Mother's prognosis is "good" because she wants to make improvements and
has "the drive and willingness" to attend sessions and utilize her support network. Her
prognosis is "guarded," however, due to the "nature of . . . suffering from symptoms of
mental disorders . . . and trying to manage those."
Carly Bloomfield, a clinical social worker who currently provides patient therapy
services for P.A. and G.A., previously provided therapy to S.A., and conducted family
therapy with Mother and Father, testified at the termination hearing. Based on her review
of Mother's court-ordered psychological evaluation, Bloomfield opined that Mother
"lacks attunement with her children . . . she has a difficult time in sensing her children's
moods or feelings" and struggles to comfort them when they are upset. Bloomfield
defined attunement as "the ability to . . . recognize and understand . . . and engage with
another individual." She testified, "The parents have the ability to complete tangible
tasks. . . . But they're not able or it doesn't appear that they have the capacity to read their
children's nonverbal cues, their emotional states. And then respond appropriately."
According to Bloomfield, she previously worked with Mother and Father on issues
with attunement while helping them work on regulating their own emotions. Bloomfield
testified, "If you're not emotionally regulated, you're going to have a hard time being
attuned with somebody because you're not really aware of what's going on." She added,
"[I]f your nervous system is . . . dysregulated or hyper-aroused or hypo-aroused, you're
not going to be able then to meet someone else's emotional needs." Bloomfield opined
that Mother's inability to regulate her own emotions made it difficult for her to attend to
the emotional needs of her children. This testimony was consistent with Mother's
psychological evaluation which stated: "Overall [Mother] has a difficult time in sensing
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her children's moods or feelings and may struggle to provide comfort to them when they
are upset."
Bloomfield opined that Mother's inability to attune to the needs of her children
was a serious concern because this parenting attribute makes the child feel safe, and gives
the child a voice, whereas lacking this parenting skill causes "a lot of the attachment
issues that the children have." She added, "[W]e want kids to be able to grow up and feel
love, to feel important, to know adults can be trusted and their needs can be met . . .
specifically by adults. . . . [A]nd instead because [the parents] weren't able to consistently
meet those needs, those kids do not have those beliefs. And they have insecure
attachments."
In her court report, Bloomfield concluded that Mother's lack of attunement and her
difficulty with limit setting, consistency, and regulation of her own emotions resulted in
an inability to provide her children with sufficient parental support. For example, she
testified that for P.A. to continue progressing in therapy, "he needs emotionally regulated
adults present to validate his experience so that he can feel safe, secure and commands
his emotions appropriately." She stated, "I do not have any evidence that would support
that [Mother and Father] have the capacity to do that on a consistent basis."
While Mother participated in mental health counseling, the record shows that she
had a pattern of inconsistent attendance and frequent changes in therapy providers. In her
psychological evaluation, Mother estimated receiving therapy from a total of eight
therapists in her lifetime. Yet, six months was the longest period that she worked with the
same therapist. For example, Mother began medication management and therapy with a
provider in Salina, but only attended three sessions before she was discharged after three
missed or late cancelled appointments. Mother then switched therapists, attended an
intake assessment and five therapy sessions before failing to attend three appointments as
of May 2020. Bloomfield opined that Mother's ability to achieve the goals laid out in her
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psychological evaluation was limited due to attending about 50% of her scheduled
appointments. In summary, in Bloomfield's opinion, Mother would have difficulty
making timely progress in developing her parenting skills due to frequently changing
mental health providers.
Bloomfield's court report also indicated it would "take a significant amount of
time in therapy for [Mother and Father] to achieve the desired progress on the issues" of
follow through, attunement, and emotion regulation. This was also the district court's
conclusion when it observed that the parent's "have the ability to complete certain tasks.
And certainly that is what the parents want this Court to believe and understand."
Nevertheless, the district court found, "The testimony of the parents is contrary to the
testimony of almost everyone else. Although they can complete a task short-term, the
long-term issues are of greater concern."
In recommending termination of Mother's parental rights, Bloomfield testified that
Mother "struggles with limit-setting, consistency, . . . emotion regulation and applying
skills learned in parenting classes. So again those are all things that . . . her children need
in order to be successful and . . . unfortunately those are her limitations."
Upon our review of the evidence in the light most favorable to the State, we are
convinced that a rational fact-finder could have found it highly probable that Mother
suffers from an emotional illness, mental illness, or mental deficiency of such duration or
nature as to render her unable to care for the ongoing physical, mental, and emotional
needs of S.A., P.A., and G.A., now and in the foreseeable future. See K.S.A. 2020 Supp.
38-2269(b)(1). We find no error in the district court's finding of unfitness under this
statutory factor.
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K.S.A. 2020 Supp. 38-2269(b)(3).
A district court may also find a parent unfit if there is clear and convincing
evidence that the parent's use of intoxicating liquors or narcotic or dangerous drugs of
such duration or nature renders the parent unable to care for the ongoing physical, mental,
or emotional needs of his or her child. K.S.A. 2020 Supp. 38-2269(b)(3).
As to this statutory factor, the district court did not make findings regarding
Mother's drug use. Rather, the district court found that Mother minimized the drug use in
the family home:
"Mom's testimony herself indicated that she would stay away from people using
drugs. But we have a failed drug test of the Father again in this case on October 7th of
2020. We have these children coming into custody all having positive hair follicle tests.
"We have the Mother indicating that [Father's] positive test is a false positive.
And that the children's hair follicle test at the start of this case [was] due to cough
medicine."
The district court acknowledged the parents had relapse prevention plans, but
stated the plans have "to be utilized."
Mother's history of substance abuse is extensive and was detailed in an exhibit
admitted at the termination hearing. Over the years, about half of the DCF reports
regarding Mother concerned her use of methamphetamine. After the children were placed
in protective custody in this case, S.A. and G.A. had positive hair follicle tests for
methamphetamine. Mother refused hair follicle testing shortly thereafter, but she
submitted a negative test three days later.
At the termination hearing, Mother admitted to a history of substance abuse, but
testified that she has remained sober throughout this case. Mother's testimony is
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supported by the record, which indicates that all her drug tests were negative, but with
another no show in July 2020. Apart from the two drug test refusals, there is no evidence
that Mother is currently unfit due to her "use of intoxicating liquors or narcotic or
dangerous drugs." K.S.A. 2020 Supp. 38-2269(b)(3).
We conclude there was insufficient evidence presented to show Mother's use of
narcotic or dangerous drugs has impeded her ability to care for S.A., P.A., and G.A.
Accordingly, the district court erred in finding Mother was unfit under K.S.A. 2020 Supp.
38-2269(b)(3). Of note, however, the existence of any one statutory factor of unfitness
may but does not necessarily establish grounds for termination of parental rights. See
K.S.A. 2020 Supp. 38-2269(f).
K.S.A. 2020 Supp. 38-2269(b)(7).
K.S.A. 2020 Supp. 38-2269(b)(7) provides that when determining the fitness of a
parent, one of the factors the court may consider is the "failure of reasonable efforts made
by appropriate public or private agencies to rehabilitate the family." This statutory factor
focuses on reasonable efforts expended by service providers to achieve the goal of
rehabilitation. It does not require the public or private agencies to provide every possible
resource to the family; only that the agencies made a reasonable effort. In re A.W., No.
121,666, 2020 WL 4035078, at *6 (Kan. App. 2020) (unpublished opinion).
The district court's adopted findings were that St. Francis made reasonable efforts
and "has provided everything available to this family" and they "went above and beyond
and provided additional tools and resources to this family." Moreover, the district court
did "not believe that there [are] any other services that could've been implemented to
assist these parents in meeting the standard of fitness today or fitness in the foreseeable
future for these children."
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Mother's challenge to the district court's findings focus on this statutory factor. She
argues the district court "relied significantly on the children's past trauma and the parents'
inability to meet the children's needs, but the court ignored the fact that the parents were
not given the tools to meet their children's needs." Moreover, she argues that even if the
tools had been provided, the parents "would not have been able to use them because Saint
Francis Ministries severely limited their interaction with their children, effectively
stifling any chance the parents had to show that they could meet their children's needs."
Mother and Father both testified to their belief that St. Francis did not make a
reasonable effort to rehabilitate the family. When Mother was asked whether St. Francis
provided her the services to reintegrate the children, Mother responded, "Absolutely not.
No." Father's issues with St. Francis ran deeper. Father testified that Rascheal Nutsch, a
licensed clinical social worker, supervisor at St. Francis, and the caseworker assigned to
this case and the family's previous cases, did not help them to achieve reintegration. The
parents were so aggrieved by Nutsch that they recorded many of their conversations and
visitations when she was present "to protect our rights and interests." Father also testified
that he reported Nutsch to her supervisor and the Behavior Science Board for Social
Workers.
Nutsch directly contradicted the testimony of Mother and Father. She testified that
she has a long history with the family in this and prior CINC cases working towards
reintegration and providing them with aftercare services. Nutsch testified that St. Francis
has "afforded this family every possible and imaginable resource available" and she has
"extended and expanded [her] professional abilities . . . further with this family than [she
has] in a lot of cases."
In particular, Nutsch testified that St. Francis offered services to the family that are
not normally offered by the agency. These services included conducting trauma
assessments of the children, conducting "wraparound meetings" with all the professionals
12
involved in the case, providing visit logs to every therapist, and recording visits and
providing the recordings to therapists for review. As a result, Nutsch believed St. Francis
had "exhausted" all options for services to provide the family.
Still, despite the extra services provided, Nutsch believed Mother and Father
"continue to just be incapable of doing the very basic skills." Nutsch testified that despite
the parent's ability to complete case plan tasks, they have not shown they can care for the
children because "the pattern shows that if these children were to go home and they were
to do after-care services for six months—in seven or eight months we would be back here
again."
One example highlights the failure of St. Francis to rehabilitate Mother and the
family. As recounted earlier, Mother's daytime sleeping led to reports of the children
being unsupervised. Mother testified she was later diagnosed with sleep apnea. To
address this health condition, Mother obtained a continuous positive airway pressure
(CPAP) machine through her church. She testified that the device has helped her sleep so
that she does not require naps during the day. Nutsch confirmed that they had to "work
hard to get that resolved. And they did. And they accomplished it."
Nevertheless, Nutsch testified that although Mother obtained the CPAP machine
in March 2020, she reported she was no longer using it three months later—in June 2020.
According to Nutsch, Mother's testimony at the termination hearing "was the first time
since June 11th that she's reported that she's using that machine." In short, while Mother
was provided with services to meet long-term parenting goals, she routinely would fail to
follow through after achieving short term results.
At the conclusion of the evidence, the district court noted that it "heard testimony
that the parents in this case have the ability to complete certain tasks. And certainly that
is what the parents want this Court to believe and understand." The district court noted all
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the case plan tasks the parents completed and recounted their testimony that the "agencies
will not let them put into practice what they have already learned." But the district court
concluded, "The testimony of the parents is contrary to the testimony of almost everyone
else. Although they can complete a task short-term, the long-term issues are of greater
concern."
The district court carefully evaluated the credibility of the witnesses who testified
regarding their conflicting opinions relating to this statutory factor of unfitness and
discounted the testimony of Mother and Father. On appeal, our standard of review
provides that our court "does not weigh conflicting evidence, pass on credibility of
witnesses, or redetermine questions of fact," and as a result, the district court's credibility
determination will not be disturbed. In re B.D.-Y., 286 Kan. at 705.
After reviewing all the evidence in the light most favorable to the State, we are
convinced that a rational fact-finder could have found it highly probable that reasonable
efforts made by appropriate public or private agencies failed to rehabilitate the family.
See K.S.A. 2020 Supp. 38-2269(b)(7); In re K.H., 56 Kan. App. 2d at 1139. We find no
error in the district court's finding of unfitness under this statutory factor.
K.S.A. 2020 Supp. 38-2269(b)(8).
When determining the fitness of a parent, the court may consider the "lack of
effort 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). On appeal, Mother argues it is "bewildering"
that the district court found the parents failed to take responsibility for their actions.
According to her, the evidence shows that she was "invested in therapy" and took the
case plan tasks seriously. Mother adds that even if the parents failed to take responsibility
for their actions, "it would not preclude them from having their children reintegrated, and
no rational fact-finder could find that it would."
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Regarding this factor, the district court focused on Mother and Father's "hostility
and uncooperativeness" toward St. Francis and other professionals assisting the family in
reintegration. In the district court's view, the parents' hostility and uncooperativeness
resulted in the parents "not taking responsibility" for their actions. The district court
concluded that the parents act "[a]s if it is everyone else's fault that their children's
behaviors are escalating." Additionally, the district court's adopted findings regarding this
statutory factor emphasized the parent's unstable employment, reluctance to acknowledge
domestic violence in the home, interactions with DCF, refusal of services, and the
recurring nature of the parenting failures of Mother and Father as proof that the parents
were unable or unwilling to change their circumstances to meet the needs of the children.
The district court found that Mother exhibited a lack of effort to adjust her
conduct, condition, or circumstance to meet her children's needs and that these
circumstances would not change in the foreseeable future. According to the district court,
Mother's parental unfitness was unlikely to change "based upon the past seven years. It's
a repeating pattern. A child in need of care case is filed. Services are provided. Services
are rejected or not good enough or not what [the parents] want. They follow through to
some degree. After-care ends and almost immediately the cycle begins again."
This behavioral cycle was confirmed by Bloomfield, who opined that the parents
are unfit for the foreseeable future "[b]ased on their pattern over the last six years." She
saw patterns regarding:
• Substance abuse. Bloomfield noted the parents were "rationalizing why the
children had you know, positive . . . hair follicle tests." She indicated S.A. and
P.A. had positive hair follicle tests in this case, and G.A. had a positive hair
follicle test in the prior CINC case.
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• Domestic violence. Bloomfield testified there may be periods of time when
Mother and Father "function really well," but "typically that is unfortunately when
their children are in custody and they are receiving services." The last reported
instance of domestic violence occurred approximately one month before the
children were removed from the home.
• History of unemployment and financial instability. Both parents "struggle to keep
a job." Mother and Father were employed by Sonic and Mother was promoted to
associate manager in three months. Nevertheless, Father testified that they were
both "let go . . . due to no control [sic] of our own." According to Bloomfield, the
family "seem[s] to always figure out a way" to eventually pay their bills and rent,
but she is concerned about "those financial stressors" because they are "directly
correlated to then other stressors that then cause . . . domestic violence [and]
substance relapse."
• Hostility towards family service agencies. Bloomfield testified to a pattern of
"being hostile and uncooperative in terms of working with the agencies."
Bloomfield testified that "if you're on their side so to speak" then the parents
"engage" and "they reciprocate." But once the parents disagree with the agency,
their interactions "are not as pleasant or positive." Bloomfield testified that the
parents' hostile behavior was long-standing. Bloomfield believed she had a good
relationship with the parents until she recommended virtual visits, "[T]hen . . . all
[of a] sudden I became the bad guy again." She added, "[Nutsch] is the bad guy.
Now their attorney—they don't want their attorneys. I mean the pattern
continues."
• Mental health services. As discussed earlier, Bloomfield testified about a pattern
regarding Mother's inability to receive therapy from a long-term mental health
16
provider. When the parents were prescribed medication, their compliance was
irregular: "[T]hey would take medicine, do better. Then stop it. And then take it."
In summary, Bloomfield addressed the parent's lack of effort in meeting the
children's needs by observing that their participation was dependent upon whether the
children were in their custody or in CINC proceedings. The parents were "very involved"
when the children have been removed from the home, but their participation decreases as
they transition into aftercare. When aftercare ends, there is a "direct pattern of their lack
of participation and their ability—accountability in keeping up with the responsibilities."
Bloomfield's testimony was corroborated by Nutsch who believed the parent's
ability to complete case plan tasks was not indicative of their progress because their
recent and past history indicated that the children "would be back here again" if they were
reintegrated into the home. She testified the parents are "capable of doing some basic
tasks," however, they are "not capable of consistently making this change permanent for
their family."
Nutsch and Bloomfield also testified regarding Mother and Father's inability to
change their conduct during visitations with the children. As Nutsch explained, the type
and length of a parent's visitation with a child is dependent on what is being observed and
overall case plan progress. In this case, the visits progressed to four-hours long,
unsupervised visits in the family home. Nutsch testified that in the interim between visits,
"we began to see an extreme amount of reactions from the kids." The children could not
sleep, they were aggressive with each other and their caregivers, and P.A. "was having
enuresis and encopresis concerns." In Nutsch's opinion, as the visits progressed and the
children were exposed more often to their parents, St. Francis staff noticed the children
"fall apart very quickly . . . [in] very dramatic ways."
17
Because of the children's behavior, the visitations were adjusted and ultimately
were conducted virtually due to the pandemic. Once in-person visitations resumed,
Bloomfield recommended P.A.'s visits remain virtual because "he could not tolerate the
in-person interactions." The virtual visits were a point of contention for Mother and
Father, who argued below, and on appeal, that their interactions with P.A. "were limited
to minutes per week" and they "were not permitted to redirect his behaviors." The
parents' primary defense throughout these proceedings was that they were being
evaluated, but they were never advised on the appropriate ways to handle the children
and fulfill their needs. As the district court found, however, the parent's testimony was
"contrary to the testimony of almost everyone else." Nutsch testified she had "repeatedly"
given the parents tools and recommendations and instructions on how to utilize them
when she observed their visits with the children.
Upon our review of all the evidence in the light most favorable to the State, we are
convinced that a rational fact-finder could have found it highly probable that Mother
lacked the effort to change her circumstances, conduct, or condition to meet the needs of
S.A., P.A., and G.A. And given Mother's longstanding inability to maintain any positive
parenting changes she made, the district court did not err in concluding that her parental
unfitness will continue for the foreseeable future. The best indicator of future
performance is past performance. Accordingly, courts can consider a parent's past history
as evidence regarding the reasonable likelihood of any change in parental fitness. See In
re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982). We find no error in the district
court's finding of unfitness under K.S.A. 2020 Supp. 38-2269(b)(8).
THE BEST INTERESTS OF THE CHILDREN
For her second issue on appeal, Mother claims the district court abused its
discretion by finding it was in the children's best interests to terminate her parental rights
because it failed to "properly analyze[] the matter." According to Mother: "The district
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court's decision was void of consideration of the emotional trauma that would be caused
[and the] court further failed to weigh the likely trauma against a further delay in
permanency."
After making a finding of unfitness, the district court must consider whether
termination is in the best interests of the child. K.S.A. 2020 Supp. 38-2269(g)(1). Our
Supreme Court has established an appellate court's standard of review in considering
whether a district court has abused its discretion in determining the best interests of the
child:
"When an appellate court reviews a district court's best interests of a child
determination, it recognizes that the district court is in the best position to make the
inquiry and, in the absence of abuse of sound judicial discretion, its judgment will not be
disturbed on appeal. Judicial discretion is abused if judicial action (1) is arbitrary,
fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted
by the district court; (2) is based on an error of law, i.e., if the discretion is guided by an
erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial
competent evidence does not support a factual finding on which a prerequisite conclusion
of law or the exercise of discretion is based." (Emphases added.) State ex rel. Secretary of
DCF v. Smith, 306 Kan. 40, Syl. ¶ 4, 392 P.3d 68 (2017).
Of note, it is Mother's burden to show that the district court abused its discretion. See
Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).
Since Mother does not claim that the district court's abuse of discretion was based
on an error of law or fact, the issue presented is whether no reasonable person would
have taken the view adopted by the district court that it was in the children's best interests
to terminate Mother's parental rights.
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The district court found by a preponderance of evidence that termination of
parental rights was in the best interests of the children. See K.S.A. 2020 Supp. 38-
2269(g)(1); In re R.S., 50 Kan. App. 2d at 1115-16. In making this determination, the
district court was required to "give primary consideration to the physical, mental and
emotional health of the child." K.S.A. 2020 Supp. 38-2269(g)(1).
Bloomfield and Nutsch both opined that termination of Mother's parental rights
was in the best interests of the children because they need permanency and stability.
Bloomfield testified, "[T]he kids need a stable, safe, secure, permanent place in order . . .
to heal and develop a secure attachment." Nutsch has seen the children succeed in this
way, adding, "the more structure, the more stability and the more safe [sic] people they're
exposed to, the better they do."
These opinions were echoed by Pamela Cornwell, who is a licensed clinical
marriage and family therapist and the clinical director at St. Francis. Cornwell is certified
in the neuro-sequential model of therapists, as well as in trauma systems therapy. She
prepared the children's trauma assessments. Based on her assessments, P.A.'s
development is at a "critical level" that can be overcome, "but it's going to take a
tremendous amount of work and effort to do that." If his developmental issues remain
unaddressed, Cornwell expects to see "a chronic problem with social interactions," such
as making and maintaining friendships and getting along with caregivers, teachers, and
adults. She continued, "[W]e could probably expect that he would have difficulty with his
education . . . simply because when I'm at high level of distress all the time, it's hard for
me to listen and pay attention." Cornwell opined that P.A. has the ability to "lessen that
gap" and catch up with his peers developmentally, but it will take "a lot of very consistent
work, a lot of dosing of the right kinds of interventions."
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Cornwell was also concerned that S.A. and G.A. were not getting the "right kinds
of support and interventions" to help overcome their developmental delays as well, but
the trauma assessments indicated they were not at the same "critical" level as P.A.
Kellie Barton, a licensed clinical psychotherapist and counselor, is the individual
therapist for S.A. She testified regarding S.A.'s diagnosis and prognosis. Barton stated
S.A.'s prognosis is "really contingent upon her caregiver's ability to provide safety,
consistency, structure, modeling of appropriate behaviors and being able to support
appropriate age and developmental milestones and needs."
The guardian ad litem argued that termination was in the best interests of the
children. She argued the children have been declining with each CINC case and "at some
point we have to stop and put the children first." She continued, "And these children are
at a critical point where if we do not step in and correct their opportunity to have the
environment they need, we are going to have children that have significant and perhaps
unmanageable needs in the future."
Bloomfield reiterated that "time is of the essence in order for these children to
have a better prognosis in—in terms of healing." Similarly, Cornwell stated when
discussing P.A.'s need for a permanent home that the "longer we—we don't have the right
kinds of safety and security and interventions with him, the more that gap is going to
widen between [P.A.] and—and peers." Cornwell added that all three of the children have
developmental needs, "[a]nd so that has to be also considered in thinking about what
kinds of resources—emotional, physical are needed for the caregivers to be able to meet
adequately the needs of all three of the children."
Bloomfield and Cornwell's testimony regarding the need for prompt placement of
the children in a safe, secure, and stable home, is consistent with Kansas statutes and
caselaw. As our court has stated:
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"The Revised Kansas Code for Care of Children—K.S.A. 2018 Supp. 38-2201 et seq.—
recognizes that 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 a prompt, permanent disposition. K.S.A. 2018 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')." In re M.S., 56 Kan. App. 2d 1247, 1263-
64, 447 P.3d 994 (2019).
In this case, the evidence is compelling that the children are at risk without prompt
placement in a safe, stable, and permanent home. As recounted earlier in this opinion,
there was substantial competent evidence to support the opinions of Bloomfield, Nutsch,
Cornwell, and Barton. Based on this evidence, it cannot be said that the district court
failed to properly consider whether termination was in the best interests of the children.
Mother has failed to meet her burden to prove that "no reasonable person would
have taken the view adopted by the district court." Smith, 306 Kan. 40, Syl. ¶ 4. The
district court's legal conclusion that termination of parental rights was in the children's
best interests was in accordance with Kansas statutes and caselaw and an appropriate
exercise of judicial discretion.
Affirmed.
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