In re B.R.
| Docket Number | 126,152 |
| Decision Date | 21 July 2023 |
| Parties | In the Interest of B.R., a Minor Child. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Douglas District Court; PAUL R. KLEPPER, judge pro tem.
Danielle N. Davey, of Sloan, Eisenbarth, Glassman, McEntire &Jarboe, LLC, of Lawrence, for appellant natural father.
Jon Simpson, senior assistant district attorney, for appellee.
Before BRUNS, P.J., GREEN and SCHROEDER, JJ.
Father appeals the termination of his parental rights to his minor son. During the pendency of this case, Father was incarcerated for the majority of the time. As a result, he was unable to visit with B.R. After Father was released from custody in early 2022, he made some progress toward reintegration with B.R. However, he was charged with a new crime and was reincarcerated a few months later. Although Father contends that the State did not make reasonable efforts to reintegrate the family, we find that there was clear and convincing evidence to support the district court's finding of unfitness and that the condition was unlikely to change in the foreseeable future. Moreover, we find that the district court did not err in finding that the termination of Father's parental rights is in the best interests of B.R. Thus, we affirm the district court's decision.
In August 2020, the State filed a child in need of care petition seeking to have B.R. declared a child in need of care. At the time the petition was filed, B.R. was four years old and living with his Mother. Moreover, Father was incarcerated. The petition alleged that Mother was involved in criminal activity that had put B.R. at risk. According to the petition, Mother had taken B.R. to meet with her former boyfriend-who she had a no-contact order against-where she was assaulted. The petition also alleged that there were significant concerns about drug use and drugs being found in Mother's apartment. After reviewing the petition, the district court entered an ex parte order of protective custody.
The district court appointed Mother and Father counsel, placed B.R. in foster care, approved the initial Kansas Department for Children and Families case plan, and ordered the Secretary, through Kaw Valley Center (KVC), to complete necessary reports. Two years after the initial petition was filed, the State moved to terminate both Mother's and Father's parental rights. Prior to the hearing on the motion to terminate, Mother relinquished her parental rights to B.R. As a result, the termination hearing focused on Father's parental rights.
At the termination hearing held on January 19, 2023, the State presented several reports, many of which were authored by Emily Snider, who was the case manager for the case from September 2020 until June 2022. The reports-which advised the district court regarding Father's compliance with the case plan-were admitted into evidence and are part of the record on appeal. These reports outline the events that occurred between the time the petition was filed and the termination hearing was held. Accordingly, we will briefly summarize the reports.
The first report-dated October 12, 2020-listed the tasks that Father was required to perform under the case plan while he was incarcerated and indicated that the case manager was unable to determine whether Father had completed any of the tasks. In a December 2020 report, the case manager social worker indicated that she had still not been able to determine what tasks the Father may have completed under the case plan.
Further in an April 2021 report, the case manager indicated that she continued to be unable to determine whether Father had participated in parenting classes while incarcerated. The case manager also indicated that she had arranged a video visit between Father and B.R. due to his incarceration. However, after the video visit, B.R. became upset "because 'his dad was in jail and bad people go to jail.'" As a result, B.R.'s therapist recommended that B.R. not have visits with his Father while he was incarcerated. The therapist also opined that B.R. had a diagnosis of post-traumatic stress disorder and separation anxiety disorder.
Subsequently in August 2021, a report stated that Father was participating in parenting classes during his incarceration. However, the video visits between Father and B.R. had not been reinstated. The case manager reported that she would communicate with the therapist regarding the reinstatement of the visits with Father closer to his release date. The report also indicated that the foster family with whom B.R. was living had reported that he missed his mother but wanted to continue to live with them. Another report, prepared in November 2021, noted that Father was still incarcerated but was following the terms of the case plan.
Father was released from custody on January 18, 2022, and moved in with his mother. On January 25, 2022, Father submitted to a urinalysis (UA), and it was negative. In March 2022, the case manager stated in a report that although Father had been released from incarceration, the therapist continued to recommend that Father and B.R. not have visitation due to past trauma. The report also stated that Father intended to continue living with family members until he could find a job. At the time the report was written, Father had not found employment.
The next report was prepared in July 2022 and stated that Father had failed to obtain safe and stable housing. Likewise, he had failed to obtain and maintain employment. In addition the report indicated that he had not taken a required mental health assessment. However, the report explained that Father had participated in two family therapy sessions with B.R. Although Father was referred to a batterer intervention program (BIP) assessment, it had not yet been performed. The report also explained that Father had provided a urine sample that was rejected by KVC, but that a subsequent urine sample had tested negative for all substances.
Significantly, the State informed KVC that-as of June 16, 2022-Father was reincarcerated in the Douglas County Jail after being arrested on the charge of distribution of a controlled substance causing death. As of September 21, 2022, when the next report was submitted by the social worker, Father remained incarcerated in the Douglas County Jail awaiting trial on the new charge. In the report, it was stated that B.R.'s therapist continued to recommend that he not have visitation with Father. In the next report filed in mid-October 2022, the social worker stated that there had been no significant changes with regards to Father's status from the previous report. The final report prepared before the termination hearing was filed in early January 2023 and indicated that Father continued to be incarcerated.
At the termination hearing, Snider testified that Father was incarcerated during a significant portion of time this case was pending. Nevertheless, during the five months that he was not incarcerated in 2022, Father indicated that he was living at his grandmother's house and was employed at Pretzel, Inc. Likewise, he started some of the required assessments and evaluations but did not complete them before he was arrested again. Snider also testified about the UAs that Father took while he was out of custody, including the one which was not acceptable for testing. However, she acknowledged that Father never submitted a positive UA to KVC.
Snider testified regarding her concerns that Father's most recent charges were drug related. She also testified that Father had moved in with his fiancee. As a result, if the district court ordered reintegration or in-home visitation, the fiancee would have to go through background checks, an inspection of her home would need to occur, and a baseline UA would need to be performed. KVC had not had an opportunity to do any of those things because Snider had not heard of Father's fiancee until the day of the hearing. Snider estimated that if Father's rights were not terminated, it would take at least six months for reintegration to occur but that a year was more likely given B.R.'s mental health needs.
B.R.'s therapist also testified at the termination hearing. The therapist explained that she began working with B.R. in September 2020, and that she had seen him the week prior to the hearing. In her opinion, B.R. was suffering from PTSD for children under the age of six based on her initial evaluation. According to the therapist, she arrived at this diagnosis based on the trauma B.R. had experienced in his life. She indicated that B.R. was terrified and suffered separation anxiety when separated from his foster home. Likewise, the therapist testified that she found B.R. to be "scared to death of bad guys."
According to the therapist, B.R. would often say that he loved his Mother but did not want to live with her. Furthermore, she testified that B.R. never spoke about his Father unless someone else brought him up. Also, she testified about her observations during the two family sessions at which both Father and B.R. were in attendance. She stated that while the first session went well, the second was awkward because B.R wanted to play on his own instead of visit with his Father. In addition, she testified that B.R. associated jail with bad guys and connected these thoughts to the bad guys he had experienced while living with Mother. The therapist opined that B.R. did not feel safe around bad guys and associated them with his Father. When asked whether Father should be able to have visits with B.R., the therapist testified that in her opinion, ...
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