In Re Lett & Jackson

Swinehart, J.:

This is an appeal by Ronald and Diane Lett from the judgment of the District Court of Labette County severing the parental rights of Ronald Lett to his daughter LaRonda Lett, and Diane Lett’s parental rights to her children LaRonda Lett and Terrance Jackson.

Terrance Jackson, born March 23,1976, is the illegitimate child of Diane Lett and Charles Lamb. LaRonda Lett, born August 13, 1978, is the child of Diane and Ronald Lett, who were married August 11, 1978.

On December 5, 1978, LaRonda was found to be a deprived child pursuant to K.S.A. 1980 Supp. 38-802(g)(3), on the basis of evidence to the effect that Ronald Lett had physically abused the child on November 3, 1978, when she was three months old. The evidence at that hearing indicated that the child had been severely beaten. Ronald admitted to beating LaRonda because of anger and self-pity, and stated that he was getting help for his mental problems. LaRonda was born with a physical birth defect which affected both feet and the hips, and prevents her from being very mobile. Upon finding that LaRonda was deprived, the trial court ordered that she remain in the care, custody and control of the Kansas Department of Social and Rehabilitation Services, and that should the child be placed with Diane Lett, the natural mother, the trial court was to be notified immediately if Ronald Lett resumed living with Diane. The court further ordered both parents to participate in any counseling or parenting education classes that the SRS deemed, beneficial.

LaRonda was subsequently placed back in Diane Lett’s home by the SRS under its supervision. The SRS urged Diane to obtain *330independent living quarters, enroll Terrance in Head Start, complete the STEP parenting program, prepare a budget she could live within, and improve her housekeeping skills. During the following two years, Diane completed the STEP program after considerable difficulty and reluctance, and she obtained independent living quarters. She failed, however, at adhering to a budget, enrolling Terrance in Head Start, and improving her housekeeping.

Shortly after the December 5, 1978, determination that LaRonda was a deprived child, Ronald assaulted a man and was thereafter voluntarily admitted into the Osawatomie State Hospital where he received treatment for his inability to control his temper. Ronald was released from Osawatomie in April of 1979, and returned to Parsons where the SRS asked Ronald to seek marriage counseling or more, if needed. Ronald then started treatment with Dr. Jack Martin, a psychologist. He continued treatment with Dr. Martin through May of 1979, a period of two months, then dropped out of contact. He next visited Dr. Martin twice in October of 1979 after two violent episodes with Diane. The evidence reveals that in the first episode, Ronald hid in Diane’s home and confronted her when she returned home from a Jehovah Witnesses’ meeting. On the second occasion, Ronald took a stick and broke out a window, entered Diane’s home and cornered her and Terrance. Ronald knocked Terrance out of Diane’s arms and chased Diane outside. Ronald then proceeded to kick her in the stomach. Criminal charges were filed and Ronald spent three months in jail as a result of this incident. He subsequently resumed treatment with Dr. Martin in March of 1980, but discontinued the visits soon thereafter, in May of 1980.

On October 14,1980, a petition was filed by the Labette County Attorney alleging Terrance Jackson to be a deprived child and praying for the severance of parental rights of Diane Lett and Charles Lamb. On November 3, 1980, an amended petition was filed on the same grounds, adding LaRonda Lett and her father Ronald Lett.

Hearings were held on the amended petition on November 17, November 25, and December 3, 1980. On December 4, 1980, the trial court found all three parents unfit and severed their parental rights. The children were committed to the custody of the SRS which then placed them in a foster home where they have *331remained since. Diane and Ronald Lett appeal the trial court’s decision.

The Letts’ first contention of error is that the trial court’s findings and conclusions are inadequate to permit meaningful review. After tracing the procedural history of this action in its journal entry, the trial court concluded:

“Now on this 4th day of December, 1980, the above entitled matter comes on for final ruling on the issue of severance of parental rights.

“The court finds and adjudges the putative father of Terrance Jackson, Charles Lamb, the natural father of Laronda [sic] Lett, Ronald Lett and the natural mother, Diane Lett, unfit persons to have the custody of the said deprived children, and are hereby adjudged as such.”

The Letts contend that the trial court’s findings and conclusions are inadequate for two reasons. First, the trial court never specifically found the children to be deprived; it just refers to them as “said deprived children.” And second, the Letts contend that the findings are too sparse and incomplete.

Supreme Court Rule No. 165, 228 Kan. Ixxxi, provides in part:

“In all contested matters submitted to a judge without a jury including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.” (Emphasis supplied.)

It is readily apparent from the journal entry that the trial court in the present case did not explicitly comply with the above rule. The trial court failed to set out the facts which would support a finding of “deprived” and failed to state the additional acts of parental neglect which were the bases of the finding of unfitness which resulted in the parental severance. Appellants, however, did not raise this issue at the trial court level. In Burch v. Dodge, 4 Kan. App. 2d 503, Syl. ¶ 2, 608 P.2d 1032 (1980), this court held:

“A litigant must object to inadequate findings of fact and conclusions of law at the trial level so as to give the trial court an opportunity to correct them, or an appellate court may presume the trial court found all the facts necessary to support the judgment.”

The court went on, however, to hold at Syl. ¶ 3:

“The requirements of K.S.A. 60-252 and Supreme Court Rule No. 165 (225 Kan. lxxii) are in part for benefit of the appellate courts in facilitating appellate review; and when the record on review will not support a presumption that the trial court found all the facts necessary to support the judgment, the case will be remanded for additional findings and conclusions even though none of the parties objected either in the trial court or in this court.” *332See also Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, Syl. ¶ 2, 598 P.2d 188 (1979):

“In the absence of an objection first made in the trial court, omissions in findings will not be fatal to a judgment since the trial court is presumed to have found all of the facts in issue necessary to support the judgment.”

Since the trial court did not make adequate findings and conclusions, it is this court’s function in the present case to review the record to see whether it supports a presumption that the trial court found all the facts necessary to support the judgment. Burch v. Dodge, 4 Kan. App. 2d 503.

A review of the record in the present case (which commenced with the original deprived hearing for LaRonda on December 5, 1978, and continued until the final hearing herein in December of 1980), reveals that the record supports a presumption that the trial court found all the facts necessary to support its judgment. Clear and convincing evidence was presented which supports a finding that Diane Lett was an unfit parent. The testimony of the social worker for the SRS assigned to oversee the Lett case was based on 108 visits made to the Lett home and indicates that Diane simply made little effort to, or was not sincerely interested in fulfilling her SRS agreement which had as its ultimate goal the improvement of Diane’s ability to provide for her children in a fashion which would at least meet society’s bare minimum standards of care and supervision.

The record further shows that the testimony was clear and uncontroverted concerning Charles Lamb, Terrance’s natural father. The record indicates that for more than three years he had failed totally in every respect to provide Terrance with parental control, care, subsistence and education. This evidence as to Charles Lamb not only supports the finding of his unfitness, but also is a factual matter which would support a finding that his individual neglect caused this child to be deprived within the meaning of K.S.A. 1980 Supp. 38-802.

The record also supports a presumption that the trial court found all the facts necessary to support its holding that Ronald Lett was an unfit parent. Ronald contends that the trial court’s finding that he was an unfit parent is not supported by clear and convincing evidence, and therefore the trial court erred in severing his parental rights to LaRonda. Diane Lett does not challenge the sufficiency of the evidence presented concerning her unfit*333ness. In reviewing the evidence, the appellate court will consider the evidence in the light most favorable to the party who prevailed at the trial court level. In re Bachelor, 211 Kan. 879, 508 P.2d 862 (1973).

Any consideration of Ronald’s fitness to parent LaRonda, a severely handicapped infant, should start back in December of 1978, when the trial court determined, and Ronald admitted, that he physically abused LaRonda. The evidence reveals that Ronald had battered three-month-old LaRonda in such a fashion that when Diane discovered the child, LaRonda’s head was severely swollen and she was scratched, bruised and bloody. Ronald then defied court orders and the directions of the SRS not to make unsupervised family visits, and the results were the physical attacks on Diane and Terrance by Ronald. These incidents occurred after Ronald had spent time in the Osawatomie State Hospital after having attacked a man in Parsons. Ronald’s inconsistent participation in Dr. Martin’s therapy program has already been outlined above. Ronald claims to be in better shape now and better able to control his temper, but when on direct examination he was asked whether he had been able to control his temper since he quit taking the medication which was prescribed to enable him to control his temper, he responded: “A little bit, but not much.” Later when asked, “Do you feel, Mr. Lett, that you can control your temper now?” Ronald responded: “That’s not so easy for me to say ... I don’t want to lose my control on LaRonda and Terrance; but so far I have not lost my temper.” Ronald also testified that he considered his temper still his “major problem.” When the children do things to aggravate him, he testified that he goes outside and beats his head against a tree to get all the anger out of his system and then he walks around the block a couple of times, and he feels in control when he returns. The court also heard testimony concerning his poor money management and the fact that while he lived with Diane against court order, he allowed the house to be filthy and infested with cockroaches, rodents and other vermin.

From this testimony we find that the trial court had clear and convincing evidence to find that Ronald was an unfit parent and unable to take care of LaRonda.

The record also supports a presumption that the trial court made the necessary findings concerning the children’s deprived *334status. While the trial court did not specifically find that Terrance was deprived, it did refer to the children as “said deprived children.” The court in an earlier proceeding had already found LaRonda to be deprived based on physical abuse. The trial court heard the testimony of Dr. Jack Martin who stated that if things remained as they were, the children would not reach their full potential. Dr. Martin also classified Terrance as a disadvantaged child. The evidence reveals that the children were often left unsupervised, were inappropriately clothed at times and were poorly disciplined. The situation showed little improvement from the first deprived child hearing in 1978, and the impending birth of Diane’s third child would undoubtedly not improve the status of the other two children.

While it is unfortunate that the trial court failed to enter findings of fact and conclusions of law as required by Supreme Court Rule No. 165, 228 Kan. lxxxi, we find that the record supports a presumption that the trial court made the necessary findings to support its judgment. Burch v. Dodge, 4 Kan. App. 2d 503.

The Letts also contend that the trial court erred in not exploring alternatives before severing parental rights. Appellants cite to In re Atwood, 2 Kan. App. 2d 680, 587 P.2d 1 (1978), for the proposition that the trial court must find that under no reasonable circumstance can the welfare of the child be served by a continuation of the parent-child relationship and the trial court must explore and specifically eliminate alternative remedies before imposing the drastic remedy of parental severance. In In re Brooks, 228 Kan. 541, 550-551, 618 P.2d 814 (1980), the court modified the least restrictive alternative doctrine as was set out in Atwood:

“Without expressly so stating, the court in Atwood acknowledged the doctrine of the least restrictive alternative and judicially construes it into the statute. We approve the cited language of Atwood except for the following sentence: ‘This test requires the court to explore and specifically eliminate alternative remedies before imposing the drastic remedy of parental severance.’ In many areas of the state there are dozens of agencies and programs designed to assist families in resolving their problems. To require a court specifically to explore, consider and reject each such program prior to termination is unrealistic and could be disastrous. Certainly if a particular program is proposed as an alternative the court should give careful consideration to the proposal. Most of the programs have much in common and to be successful in any of these programs parents must cooperate with the agency, *335must keep appointments, must have a sincere desire to improve their family life, and must be willing to accept counseling.

“We conclude the better test to be: The court should carefully consider any particular alternative remedy proposed by an interested party in the case, and if rejected the court should state its reasons for such rejection. The drastic remedy of termination of parental rights should not be utilized unless the court is satisfied there is no realistic alternative and so finds.”

In the present case, no less restrictive alternative was proposed to the trial court, so no rejection of the alternatives was required. We note, however, that several alternative solutions were actually tried before the severance hearing, and failed. The parties had been working closely with SRS and proffered counselors for the two years subsequent to LaRonda’s deprived child hearing. Testimony based on over one hundred home visits was heard to the effect that the SRS did everything possible to remedy the situation and had limited success. We hold that the trial court did not err in severing appellants’ parental rights.

Affirmed.