NOT DESIGNATED FOR PUBLICATION
Nos. 122,009
122,010
122,011
122,012
122,013
122,014
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of I.G., A.G., M.D., A.D., Li.D., and Lu.D.,
Minor Children.
MEMORANDUM OPINION
Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed May 8, 2020. Affirmed.
Andy Vinduska, of Manhattan, for appellant natural mother.
Coleman J. Younger, of Galloway, Wiegers & Brinegar, P.A., of Marysville, for appellee State of
Kansas.
Before STANDRIDGE, P.J., ATCHESON, J., and BURGESS, S.J.
PER CURIAM: Mother appeals the district court's decision to terminate the parental
rights to her six children, I.G., A.G., M.D., A.D., Li.D., and Lu.D. Specifically, Mother
challenges the district court's findings that she is unfit and that it is in the best interests of
the children to terminate her parental rights. For the reasons stated below, we affirm.
FACTS
On April 20, 2017, I.G., A.G., M.D., A.D., Li.D., and Lu.D. were taken into police
protective custody after A.D. fell out of a moving vehicle that Mother was driving while
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under the influence of a narcotic. Four days later, the State filed a child in need of care
petition on behalf of all six children, and the district court ordered the children remain in
the temporary custody of the Kansas Department for Children and Families (DCF). Two
months later, Mother submitted a statement of no contest at the adjudication hearing, and
the children were found to be in need of care. The district court ordered the children to
remain in DCF custody and adopted a case plan that was developed a month prior.
Several permanency hearings were held during the first year after the children
were taken into custody. At the conclusion of each of these hearings, the district court
determined that reintegration remained a viable option.
On August 8, 2018, the district court allowed I.G. and Lu.D. to move back into
Mother's home and the remaining children to have overnight visits. After two overnight
weekend visits with Mother, however, the St. Francis Community Services (SFCS) case
manager assigned to the case reported that M.D.—who was an insulin dependent
diabetic—had blood sugar levels that posed "an immediate danger to [M.D.'s] health"
after returning from weekend visits with Mother. The State filed a motion to modify
parental visitation. The district court granted the motion to the extent that it gave SFCS
sole discretion on the issue of visitation between Mother and the four minor children
participating in overnight visits. The court did not modify its previous decision allowing
I.G. and Lu.D. to move back into Mother's home.
I.G. and Lu.D. remained in Mother's home until the State filed a motion to remove
the children on December 14, 2018. The State filed the motion based on multiple
allegations, including a report that the children had witnessed a physical altercation
between Mother and B.D. (the father of M.D., A.D., Li.D., and Lu.D.) and a report that
M.D. called 911 the next day due to an argument between Mother and her current
boyfriend. The district court granted the motion and ordered the State to remove I.G. and
Lu.D. from Mother's home and return them to foster placement.
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At a permanency hearing on March 5, 2019, the district court determined
reintegration was no longer a viable goal and ordered the State to file a motion for
termination within 30 days. The State filed the motion a month later and the two-day
termination hearing began on July 23, 2019. At the end of the hearing, the district court
found clear and convincing evidence that Mother was unfit, that the conduct or condition
rendering her unfit was unlikely to change in the foreseeable future, and that termination
of Mother's parental rights was in the best interests of the children.
ANALYSIS
On appeal, Mother claims there is insufficient evidence to support the district
court's findings (1) that she is unfit and (2) that termination of her parental rights is in the
best interests of her children.
1. Unfitness
The standard of review for a finding of parental unfitness requires us to determine,
after reviewing all of the evidence in a light most favorable to the State, whether a
rational fact-finder could have found the determination to be highly probable, i.e., by
clear and convincing evidence. See In re B.D.-Y., 286 Kan. 686, 705-06, 187 P.3d 594
(2008); In re K.P., 44 Kan. App. 2d 316, 318, 235 P.3d 1255 (2010). In making this
determination, the 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 standard of proof for a finding of parental unfitness in termination
proceedings requires the State to prove a parent is unfit "by reason of conduct or
condition which renders the parent unable to care properly for a child." K.S.A. 2019
Supp. 38-2269(a). The statute contains a nonexclusive list of nine factors that singularly
or in combination may constitute unfitness. K.S.A. 2019 Supp. 38-2269(b), (f). The
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statute lists four other factors to be considered when, as here, the parent no longer has
physical custody of a child. K.S.A. 2019 Supp. 38-2269(c).
Having set forth the applicable standard of review and standard of proof, we turn
to the district court's decision below. After the close of evidence at trial, the district court
relied on seven statutory factors to support its finding of unfitness. But in its journal
entry, the court set forth only the following three statutory factors to support its finding
that Mother was unfit:
• failure of reasonable efforts made by appropriate public or private agencies to
rehabilitate the family (K.S.A. 2019 Supp. 38-2269[b][7]);
• 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. 2019 Supp. 38-
2269[b][8]); and
• whether, as a result of the actions or inactions attributable to the parent and one or
more of the factors listed in K.S.A. 2019 Supp. 38-2269(c) apply, the child has
been in the custody of the secretary and placed with neither parent for 15 of the
most recent 22 months beginning 60 days after the date on which a child in the
secretary's custody was removed from the child's home (K.S.A. 2019 Supp. 38-
2269[b][9]).
"In a civil action, a district court's journal entry of judgment controls over a prior
oral pronouncement from the bench." Steed v. McPherson Area Solid Waste Utility, 43
Kan. App. 2d 75, 87, 221 P.3d 1157 (2010). So our sufficiency of the evidence analysis is
limited to reviewing only the statutory factors for unfitness relied on by the district court
as set forth in its written journal entry of judgment. But in its journal entry, the court did
not find any of the factors listed in K.S.A. 2019 Supp. 38-2269(c) applied in this case.
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Therefore, we only will consider whether there is clear and convincing evidence in the
record to support the district court's legal conclusion that Mother was unfit under K.S.A.
2019 Supp. 38-2269(b)(7) and K.S.A. 2019 Supp. 38-2269(b)(8).
Under K.S.A. 2019 Supp. 38-2269(b)(7), a district court may find a parent unfit if
there is clear and convincing evidence that reasonable efforts have been made by public
or private agencies to rehabilitate the family but those efforts have failed. This subsection
of the statute imposes an obligation upon the relevant social service agencies to expend
reasonable efforts toward reintegrating children with their parents. See K.S.A. 2019
Supp. 38-2201(b)(8) (one of the goals of the revised Kansas Code for Care of Children,
K.S.A. 2019 Supp. 38-2201 et seq., is to provide "preventative and rehabilitative services,
when appropriate, to abused and neglected children and their families so, if possible, the
families can remain together without further threat to the children"). Under K.S.A. 2019
Supp. 38-2269(b)(8), a district court may find a parent unfit if there is clear and
convincing evidence that the parent has failed to adjust his or her circumstances, conduct,
or conditions to meet the needs of the children. For the reasons stated below, we find
clear and convincing in the record to support the district court's finding that SFCS's
reasonable efforts to rehabilitate the family failed and that Mother failed to adjust her
circumstances to meet the needs of her children. We review the evidence of each case
plan task assigned to Mother by the court and SFCS because it is in this context that it is
the easiest to see the tremendous effort exerted by SFCS in this case to help Mother and
the lack of effort exerted by Mother to adjust to her circumstances to achieve
reunification.
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a. Case task plans
(1) Complete drug and alcohol assessment and follow all recommendations
As part of her May 12, 2017 initial case plan to achieve reunification, Mother was
required to complete a drug and alcohol assessment and follow all recommendations. The
SFCS case manager provided Mother with the phone number for a Regional Alcohol and
Drug Assessment Center (RADAC) multiple times throughout the case. Mother's
husband completed his drug and alcohol assessment on May 31, 2017, less than three
weeks after the case plan task was assigned. But Mother did not complete her assessment
until March 10, 2018, over 10 months after the task was assigned. And, although the
addiction therapist concluded that Mother did not meet the criteria for an official
diagnosis of a substance related disorder as specifically defined in the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, the
addiction therapist highlighted in bold-face type in the assessment that her conclusion in
this regard was based solely on Mother's "self-reported" information. At the end of the
assessment, the addiction therapist recommended that Mother consult with a mental
health provider who could teach her how to engage in stress management techniques
instead of using marijuana to self-medicate. As discussed in more detail below, Mother
did not engage in individual counseling as recommended until November 13, 2018, over
8 months after the addiction therapist made this recommendation in the RADAC
assessment and 18 months after the court ordered the drug and alcohol assessment. As
also discussed in more detail below, the evidence presented at trial reflects that Mother
continued to use marijuana while this case was pending.
(2) Complete mental health evaluation and follow all recommendations
Mother also was required as part of her May 12, 2017 initial case plan to complete
a mental health evaluation and follow all recommendations. Mother originally was
scheduled to complete her mental health evaluation at Pawnee Mental Health in
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Manhattan, but she missed her appointment multiple times and Manhattan Pawnee
eventually declined to schedule any more appointments for Mother. The SFCS case
manager offered to call Manhattan Pawnee to see if it would give her another chance, but
Mother told the case manager, "'[D]on't even try—I told them to eat a bag of dicks.'"
Since Mother's behavior excluded Manhattan Pawnee as an option, the SFCS case
manager researched other options and eventually was able to set up a mental health and
parenting evaluation for Mother with Dr. Fajen at Andrews and Associates. The
assessment required three sessions. Mother attended the first session of the mental health
assessment on February 1, 2018, over eight months after the court ordered her to
complete it. Mother missed the next session and did not schedule her final session until
May 23, 2018, a full year after the court ordered her to complete it. In his written
assessment, Dr. Fajen recommended Mother engage in both individual therapy and
family therapy. The SFCS case manager scheduled appointments for Mother to receive
individual therapy services through Pawnee Mental Health in Clay Center. Mother later
advised the SFCS case manager, however, that she did not attend any of her scheduled
counseling sessions. Clay Center Pawnee eventually declined to schedule any more
appointments for Mother. The SFCS case manager was unable to confirm these reports
because Mother refused to sign a release for SFCS to obtain that information.
It was not until November 13, 2018—five months after Dr. Fajen recommended
she engage in individual counseling and 18 months after the court ordered her to
complete a mental health assessment and follow the recommendations—that Mother
finally attended her first individual counseling session. But Mother did not make a
follow-up appointment with the individual therapist until the SFCS case manager reached
out and encouraged her to do so.
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(3) Maintain safe and stable housing
Although the May 12, 2017 initial case plan to achieve reunification required
Mother to maintain safe and stable housing, Mother failed to obtain the necessary
housing until on or around July 17, 2018, which was 14 months after the court ordered
her to achieve this goal. And at the time of trial, there were still issues with safe housing.
In a report prepared the week before trial, the SFCS case manager related as follows:
"The most recent safety concern [SFCS] experienced was at the visit on May 20th, 2019.
During this visit[], [the infant] was in the living room playing on the floor by himself.
Worker picked him up to bring him to the other room where all the other children and
[Mother] were. After picking him up worker saw there was something in his mouth and
pulled out a tack. This is not the first time workers have had to pull objects out of [the
infant's or Lu.D.'s] mouth. [Mother] is currently living with her boyfriend John who helps
out with the children but is commonly in jail. His last sanction was for five days in early
July. Currently, [Mother] is allowing workers to come into her home. Many times
throughout the case, [Mother] has refused workers access into her home."
(4) Provide urinalysis samples for drug testing when requested
The initial case plan developed on May 12, 2017, required Mother to provide
urinalysis (UA) samples for drug testing when requested by the SFCS case team. On
October 23, 2017, Mother had an unsupervised visit in the home with all six of her
children. At pick up, Mother asked the foster parents to buy A.G. (approximately age 11)
and M.D. (approximately age 8) dinner, meaning that she had failed to provide them
dinner during the visit as required. Several of the foster parents who had dropped off and
picked up the kids for this visit reported to the case team that Mother was not able to
focus and appeared to be under the influence of something. Meanwhile, one of the
children's Court Appointed Special Advocate (CASA) workers happened to be on a walk
in Clay Center during the visit and walked by the front of Mother's house. The CASA
worker reported that she observed Lu.D. (an infant) eating grass and the twins (toddlers)
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running around the front yard. All of the foster placements and the CASA worker were
very concerned about the well-being of the children after this visit. The case team spoke
with Mother regarding these concerns and explained that the visits would be changed to
two-hour monitored weekly visitation contingent on a UA sample for drug testing that
came up clean prior to the visit. In a report to the court dated November 22, 2017, the
SFCS case manager recommended that the court issue an order specifically requiring
visitation be contingent upon a clean UA drug test. The court issued that order on
March 21, 2018.
In addition to admitting she used drugs and her positive drug tests, Mother
consistently refused or was uncooperative in providing UA samples. In order to have
visitations with her children, the court required Mother to first provide a clean UA before
every visitation. Of the 181 visitation opportunities Mother was offered over the entirety
of this case, she attended approximately 62 percent of the visits. The "main reason"
Mother missed the approximately 38 percent of visits available was her failure or refusal
to provide a UA sample. Mother conceded that she had "not always submitted to testing"
and admitted that when SFCS moved her to supervised visitation contingent on a clean
UA, she "rebelled" and simply decided she "wouldn't do it."
The record also reflects concerns that Mother was using other people's urine to
submit for testing or otherwise was tampering with the samples submitted. In the summer
of 2018, SFCS received screenshots of messages that showed Mother asking friends to
provide her with clean, drug-free urine. In fact, A.G. (approximately 12 years old at the
time) reported that Mother asked her to urinate in a cup during a visit so she would have
clean urine for the UA sample. In September 2018, a hospital social worker reported to
DCF that Mother "ran into the hospital with no shoes on, carrying something in her
pocket that she then warmed up in a microwave." After SFCS reviewed video footage of
the incident, the case manager informed Mother that, going forward, an approved witness
must be present to observe Mother during the process of her providing the urine sample.
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Mother was very upset about this new procedure and told the case manager to "'go fuck
herself.'" SFCS workers tried to be empathetic by setting up other options such as mouth
swab or hair follicle tests, but Mother refused. In fact, Mother told the SFCS case
manager that "'the only way I will do a hair follicle test for you is if Judge Bosch orders
it. Then I will bend over in court and he can take one of the hairs from my asshole if he
wants.'" At one point, Mother went a whole month without seeing her children just
because she refused to provide a UA sample.
In April 2019, jail staff—who witnessed Mother providing her UA sample—called
the SFCS case manager with concerns that Mother was faking or tampering with her
urine sample for testing. Jail staff reported that when Mother first came in, she struggled
to urinate for about an hour and that when she did go, she only urinated a little, even after
drinking the whole time she was waiting. Jail staff also reported that when she did
urinate, she pushed really hard "'as if she [was] trying to pop a balloon,'" which was a
method the staff had seen other clients engage in when attempting to tamper with UA
samples. Jail staff reported that these concerning activities occurred every time Mother
came in.
During the 27 months this case was pending, Mother struggled to comply with the
district court's order to submit clean UA samples for drug testing. In addition to her
admitted use of Percocet, Mother admitted to using marijuana while this case was
pending. In November 2018, Mother had a hair follicle test positive for
methamphetamine. In March 2019, Mother's UA sample tested positive for
amphetamines. SFCS requested Mother complete an additional hair follicle test in June
2019 in anticipation of the upcoming termination hearing, but Mother refused to submit
to the test.
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(5) Sign all necessary releases
Mother also was required as part of the May 12, 2017 initial case plan to sign all
necessary releases to allow SFCS to access the information necessary to guide the district
court in deciding whether Mother was completing case plan tasks and making the
progress necessary to achieve reunification with her children. Mother did sign some
releases for SFCS but repeatedly refused SFCS requests to sign others. For example,
Mother refused to sign a release for Clay Center Pawnee and Parents as Teachers of Clay
Center.
(6) Complete a diabetes parent education course
On September 7, 2017, the CASA supervisor wrote a memorandum to the district
court regarding the status of the children for the upcoming disposition hearing. In the
recommendation section, the CASA supervisor suggested the court order Mother to
complete diabetes parent classes to learn the necessary skills to properly care for M.D.'s
diabetic health condition. As the basis for this recommendation, the CASA supervisor
stated that "[a]ccording to school personnel, [M.D.]'s diabetes has only been controlled
since she has been in her foster care placement. Parents were not receptive to parent
classes in the past and [M.D.] was hospitalized due to lack of attention to her medical
care." The court ultimately adopted the recommendation of the CASA supervisor and
issued an order on September 11, 2017, requiring Mother to complete an online 16-hour
class for parents of children with diabetes.
At a review hearing held on November 29, 2017, the district court apparently
became aware that Mother had not complied with its order to complete the class for
parents of children with diabetes. Accordingly, the court ordered Mother to complete the
diabetes class by February 15, 2018, and provide proof of completion to the court.
Mother completed the class in January 2018—four months after it was ordered—but even
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so, she struggled to manage and care for M.D.'s diabetes during visits after the class was
over. Mother commonly forgot to dose M.D.'s insulin correctly and would forget to give
her insulin before she ate. In the summer of 2018, SFCS caseworkers made log sheets for
Mother to complete during lengthy visits to better keep track of the dosing times and
amounts. The SFCS caseworkers never received a log sheet back from Mother. With
visits supervised, Mother was in charge of dosing M.D. for only one meal a week but still
occasionally forgot and had to be reminded by the supervising worker.
(7) Complete a parenting class
On November 22, 2017, the SFCS case manager drafted a report to the district
court regarding the upcoming case review hearing. After setting forth the status of the
children's mental health and current placements, the SFCS case manager provided a
detailed review of recent health and safety concerns with visits between Mother and the
children. In the recommendation section, the SFCS case manager suggested the court
order Mother to complete a parenting class so she could acquire the skills necessary to
make sure her children were healthy and safe during visits. The court ultimately adopted
this recommendation and issued an order on November 29, 2017, requiring Mother to
complete parenting classes by February 15, 2018, and provide proof of completion to the
court.
SFCS provided Mother with the contact information for Clay Center Pawnee's
parenting class, which did not start until March 2018. In the meantime, SFCS case
workers initiated contact with Parents as Teachers in Clay Center and provided the
organization with Mother's contact information. Parents as Teachers called Mother and
set up regular weekly appointments. Given the children's schedules, however, SFCS had
to change the day of the week for the meetings. Mother became angry about the change
and ultimately severed the relationship with Parents as Teachers altogether, saying that
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she did not need their help because she had done a fine job raising seven children by
herself.
When March rolled around, Mother was hesitant to attend the parenting class
because she did not think she could successfully attend all six-week sessions. The
SFCS case team encouraged her to try her hardest to make the ones she could. Mother
missed the first two and did not try to make any more after that. In June 2018, the SFCS
case manager told Mother she would try and set up Parents as Teachers services again if
Mother was interested. Mother agreed, and the worker called to set up meetings with
Mother and Parents as Teachers. Later that month, Mother, who was pregnant, told the
SFCS case manager that the doctors believed she could go into labor at any time and that
she would prefer to wait until after the baby was born. After the baby was born, Parents
as Teachers struggled to reach Mother (her phone was disconnected for several weeks),
but it was finally able to set up services beginning August 6, which was a date when
Mother was scheduled to have a visit with the children. On August 6, however, Mother
called and said she had to cancel because she was sick. Parents as Teachers rescheduled
for August 16, but Mother cancelled. Parents as Teachers rescheduled again for August
23, but Mother cancelled. On August 28, the Parents as Teachers worker showed up to
Mother's home for a scheduled appointment, but no one was home. Parents as Teachers
finally reached out to the SFCS case team and explained that Mother needed to make
sincere efforts if she intended to enroll. In the wake of this conversation, the SFCS case
manager explained to Mother the importance of taking a parenting class because the court
had ordered her to do it. Mother took no action.
In November 2018, the SFCS case manager reminded Mother that the parenting
class was a task ordered by the district court that she had not completed as required.
Mother took no action. In December 2018, the SFCS case manager reached out to the
Evangelical Covenant Church in Clay Center to set Mother up with a group called
"'Connecting Moms.'" This is a mentor program that connects mothers in the community.
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Mother agreed to try it and reached out to the church during one of her therapy sessions.
There is nothing in the record to suggest that Mother ever contacted anyone in the
program again.
After the court hearing in January 2019, Mother agreed she would try Parents as
Teachers for a third time. At the initial meeting, Mother told Parents as Teachers that she
did not want them sharing any information with SFCS. And, as set forth above, Mother
refused to sign a consent form for Parents as Teachers to release any information about
Mother to SFCS or DCF. Without that consent, SFCS could not access the information
necessary to guide the court in deciding whether Mother was developing the parenting
skills necessary to achieve reunification with her children. In fact, the only information
the SFCS case manager learned was that Mother missed the majority of the Parent as
Teacher appointments scheduled from January 2019 through April 2019 and that the last
time Parents as Teachers met with Mother was April 9, 2019. Notwithstanding the
tremendous effort put forth by the SFCS case team, Mother failed to successfully
complete parenting classes during the 20-month period from the court's order to do so on
November 22, 2017, through July 23, 2019, the date of Mother's trial.
(8) Complete family therapy with A.G.
At a hearing in August 2018, the district court ordered Mother and A.G. to engage
in family therapy because A.G. refused to attend visits with her Mother. The court, the
SFCS case team, and the parties agreed, however, that this family therapy should not
begin until Mother started and began making progress in individual therapy. As set forth
above, Mother did not have her first appointment for individual therapy until
November 13, 2018, and did not start making any progress until about three months in.
So at the end of February 2019, the SFCS case manager scheduled a family therapy
appointment for Mother and A.G. with Clay Pawnee therapist Erin Mellie. But Mother
told the SFCS case manager that she did not want to use Clay Pawnee; she wanted a
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therapist with whom she could start with a clean slate. The SFCS case manager attempted
to find a therapist in the SFCS network who was willing to travel to Clay Center but
could not find one. Apparently recognizing the effort made by the SFCS case manager,
Mother reported in late March 2019 that she would reach back out to Clay Center Pawnee
and retry to set up therapy. This never happened. Notwithstanding the tremendous effort
put forth by the SFCS case team, Mother failed to engage in family therapy during the
11-month period from the court's order to do so in August 2018 through July 23, 2019,
the date of Mother's trial.
b. Mother's lack of progress on her case task plans and the agency's reasonable
efforts to help Mother achieve complete those tasks to achieve reintegration
As the discussion above establishes, SFCS not only met, but exceeded, its
obligation to expend reasonable efforts toward reintegrating the children with their
Mother in this case, but those efforts failed. Over the 27-month span of this case, SFCS
workers had frequent, almost daily, contact with Mother. During this extended time
period, SFCS workers repeatedly tried to persuade and motivate Mother to comply with
case task plans including the required drug and alcohol assessment and recommendations,
mental health evaluation and recommendations, individual behavioral therapy, family
therapy, drug testing for visitations, parenting classes, signing releases, and diabetic
classes. Significantly, the SFCS workers continued to provide services to Mother without
interruption even though Mother conceded she purposefully attempted to damage her
relationship with SFCS by being intentionally "abrasive and callous" to the worker, and
refused to submit to UA testing because she "rebelled."
At trial, the district court specifically found that Mother made inappropriate
comments and was verbally abusive to social workers and individuals involved during
visits. This finding is also supported by the record. In February 2019, Mother became
verbally aggressive with her SFCS case manager in front of the children during a visit.
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The case manager asked Mother not to talk about the case in front of the children during
visits because it was stressful for the kids and caused two of the children to cry. Mother
told A.D. "it was okay to cry because [SFCS] wanting to terminate her rights was a real
thing" and "told all the children to ask worker about wanting to terminate her rights as a
parent." A.G. attempted to calm Mother down, and M.D. apologized to the SFCS case
manager for Mother's behavior. Ultimately, Mother told SFCS that she was not going to
stop talking about the case in front of the children, and SFCS began requiring visits to be
supervised.
After hearing this evidence at trial, the district court found that Mother had
"basically admitted she's sabotaged these attempts [by SFCS to reintegrate]." The district
court went on to state that SFCS made reasonable attempts to rehabilitate the family, but
Mother "was rebellious, she was not compliant, and only until this Court ordered that this
matter proceed to termination did she finally decide she was gonna work with them." We
find clear and convincing evidence in the record to support the district court's conclusion
that Mother is unfit under K.S.A. 2019 Supp. 38-2269(b)(7), which provides for
termination if the appropriate agency expended reasonable efforts toward reintegrating
the children with their parent but those efforts failed.
c. Mother's lack of progress on her case task plans and the lack of a demonstrated
ability to adjust her circumstances to meet the needs of her children
The State presented clear and convincing evidence at trial that Mother failed to
adjust her circumstances to meet the needs of her children during the 27 months that this
case was pending. Specifically, Mother failed to accomplish her assigned case task plans
including the required drug and alcohol assessment and recommendations, mental health
evaluation and recommendations, individual behavioral therapy, family therapy, drug
testing for visitations, parenting classes, signing releases, and diabetic classes. And for
those case task plans that Mother did complete, the case task plan discussion above
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reflects that she failed to do so in a timely manner. We find clear and convincing
evidence in the record to support the district court's conclusion that Mother is unfit under
K.S.A. 2019 Supp. 38-2269(b)(8), which provides for termination based on a 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.
2. Best interests of the children
Mother does not contest the district court's determination of whether her conduct
or condition is unlikely to change in the future, but Mother does argue that the district
court erred when it found termination of her parental rights was in the best interests of the
children.
Having found unfitness, the district court must then decide whether termination of
parental rights is "in the best interests of the child [giving] primary consideration to the
physical, mental and emotional health of the child." K.S.A. 2019 Supp. 38-2269(g)(1).
The district court makes that decision based on a preponderance of the evidence. This
decision is within the sound discretion of the district court, and an appellate court reviews
this decision for an abuse of discretion. See In re R.S., 50 Kan. App. 2d 1105, 1115-16,
336 P.3d 903 (2014). A district court 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 representation, 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).
Mother improperly states the standard of review for this determination as a clear
and convincing evidence standard but appears to argue that the district court ignored
controlling facts because it "completely failed to take into consideration that the reason
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for Mother's rebellion was due to her own childhood and adult trauma." But Mother does
not support this argument with any authority as to why Mother's childhood and adult
trauma should excuse her rebellion.
Having found no shortcomings in the district court's assessment of the evidence or
applicable legal principles, the question becomes whether no reasonable district court
would come to the same conclusion. Here, the record shows that the children have been
in DCF custody for 27 months. Lu.D. was only three months old, and A.D. and Li.D.
were two years old, when they were removed from Mother's care. By the time of trial, the
youngest children had spent the majority of their lives in foster placements.
Additionally, the record shows that M.D.'s health has improved since being out of
Mother's home. Multiple witnesses testified to being concerned about Mother's ability to
manage M.D.'s diabetes. Before M.D. was removed from Mother's home, M.D. did not
attend her doctor's appointments, lacked the necessary supplies at school, and would
come to school with dangerous blood sugar levels. M.D.'s school nurse testified that
M.D.'s blood sugar has been "better maintained over an extended period of time" while in
foster care. This had allowed M.D. to focus on school and not have to worry about when
she was going to eat and have troubles at home.
I.G. was also more successful after he left Mother's house. Either intentionally or
through neglect, Mother thrust upon I.G., as the eldest child, parent-like responsibilities
for helping his youngest siblings that kept him from school and his studies. While living
with Mother, I.G. missed 133 class periods and had a GPA of 0.713. But, after returning
to his foster placement, I.G.'s GPA rose to 2.87, and he had no unexcused absences.
This evidence supports the district court's conclusion, and other courts could come
to the same conclusion. As such, the district court did not abuse its discretion when it
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determined termination of Mother's parental rights was in the best interests of the
children.
Affirmed.
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