In re D.M.
| Docket Number | 125,894 |
| Decision Date | 23 June 2023 |
| Parties | In the Interest of D.M., a Minor Child. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Douglas District Court; PAUL R. KLEPPER, pro tem judge.
Jennifer Martin Smith, of Alderson, Anderson, Conklin, Crow &Slinkard, L.L.C., of Topeka, for appellant mother.
Jon Simpson, senior assistant district attorney, and Suzanne Valdez, district attorney, for appellee.
Before BRUNS, P.J., SCHROEDER and COBLE, JJ.
Mother brings this appeal from the district court's order terminating her parental rights to D.M. The district court found Mother was unfit to parent and that her unfitness was unlikely to change in the foreseeable future. In addition the district court found that termination of Mother's parental rights was in D.M.'s best interests. On appeal Mother contends that the district court erred when it applied the presumption of unfitness under K.S.A. 38-2271(a)(3). She also contends that the State failed to present clear and convincing evidence to support a finding of unfitness or to prove that her condition of unfitness was unlikely to change in the foreseeable future. Further, she challenges the district court's conclusion that the termination of her parental rights was in the best interests of D.M. Finding no reversible error, we affirm the district court's decision.
Shortly after his birth in 2020, D.M. was placed in the protective custody of the Kansas Department for Children and Families (DCF). At the time, Mother was a party to two other child in need of care (CINC) cases involving her two older children-D.S., who was born in 2016, and D.E., who was born in 2018. In its ex parte order, the district court found that based on a psychological and parenting evaluation performed in the two pending CINC cases that Mother could not care for her children due to safety concerns arising out of her "cognitive and reasoning delays."
In the pending CINC cases, it was determined that Mother needed progressively more intensive services aimed at educating and supporting her in providing care to her young children. Unfortunately, several providers could not help Mother and indicated that she required comprehensive services that included more oversight and education than they could offer. Ultimately, the DCF caseworker assigned to work with Mother referred her to Kaw Valley Center Family Preservation Services. But after initially agreeing to work with Kaw Valley, Mother decided that she "did not wish to participate."
In a June 2019 report to the district court in the pending CINC cases, Dr. Jean Dirks-who was a psychologist at Bert Nash Community Mental Health Center and is now deceased-had diagnosed Mother with moderate intellectual disability dependent personality disorder, and persistent depressive disorder. In Dr. Dirks' opinion, these psychological conditions resulted in Mother's inability to safely parent her young children. Specifically, Dr. Dirks determined that Mother's IQ was 48 and that she read at the 3rd grade level. As a result of her testing, Dr. Dirks determined that Mother's overall age equivalent or mental age was around six and one-half years.
In addition, Dr. Dirks explained that Mother struggled with daily living skills and that her social judgment caused her to be exploited "monetarily or sexually." On the positive side, Dr. Dirks stated that Mother had adequate grooming and cooking skills. According to Dr. Dirks, Mother felt "uncomfortable when alone" and struggled with selfinitiative as well as in making independent decisions. This resulted in Mother agreeing with inappropriate advice, staying with people who have risky behaviors, and repeatedly forming unhealthy relationships with men. Dr. Dirks reported that Mother often "feels hopeless" about her own abilities and "needs others to assume responsibility" for her.
Dr. Dirks opined that due to Mother's inability to remember parenting instructions and failure to exercise appropriate judgment, "she cannot make safe decisions about supervision of children, medical care for a baby or child, or compliance with service providers." Furthermore, Dr. Dirks opined that Mother's "cognitive skills and judgment and reasoning are at the 6-year level, which is simply too low for safe parenting." Moreover, Dr. Dirks noted that Mother does not want to live alone and needed support for her cognitive deficits, but neither her mother nor her grandmother could provide the support needed to provide stability for the children. Consequently, Dr. Dirks recommended that the children not be placed with or supervised by Mother.
After Mother gave birth to D.M. in November 2020, the hospital staff was concerned that she was not mentally and cognitively able to provide adequate care for her newborn baby. On November 24, 2020, the district court placed D.M. in the temporary custody of DCF, and he has remained in the agency's custody since that time. On January 5, 2021, the district court adjudicated D.M. to be a CINC and set the case plan goal as one of reintegration.
The district court ordered Mother to work with Kaw Valley Center and adopted a case plan that assigned her with several tasks to perform. These tasks included: (1) participate in parental empowerment programming; (2) follow all recommendations set forth in her previous parenting and psychological evaluation (i.e. find a therapist, find a benefits payee, undergo one-on-one parenting training, find housing separate from her family or anyone engaged in illegal activity); (3) keep in contact with the Kaw Valley Center caseworker and update them regarding any changes to her contact information; (4) sign all requested releases; (5) maintain safe and stable housing; and (6) participate in visits with D.M. as deemed appropriate by Kaw Valley Center.
In Kaw Valley Center's first report to the district court, the case manager described Mother as "doing well in engaging with [D.M.] during her visits and appears to be working hard on her case plan tasks." The case manager also stated that Mother was "very open to suggestions and feedback from others [and] is showing that she wants to be a part of [D.M.]'s life and is willing to do the work." Accordingly, at a dispositional review hearing held on April 12, 2021, the district court reaffirmed the permanency goal of reintegration.
On June 10, 2021, Kaw Valley Center reported that Mother continued to participate in a parent management training class as well as a Healthy Mothers Program for infant and toddler services. Even so, the report indicated that Mother was not meeting her mental health needs and-as a result-D.M. was at risk for neglect. Although Mother had once attended therapy, she evidently had to stop due to difficulty in scheduling. Kaw Valley Center recommended Mother seek out a therapist who could work with "lower functioning" clients and the case worker offered to help her find one.
Mother continued to maintain contact with Kaw Valley Center, participated in visits with D.M., and signed releases when requested. Mother was evicted from her residence after losing her housing voucher. As a result, she temporarily lived at a hotel and struggled to find new housing. Meanwhile, on August 12, 2021, Mother voluntarily relinquished her parental rights to her two older children.
On October 18, 2021, the district court held its first permanency hearing regarding D.M. Once again, the district court reaffirmed that the goal was reintegration. At the hearing, Kaw Valley Center reported that Mother continued to attend most of her visits with D.M., continued participating in case management services, continued working with vocational rehabilitation, and had completed the parent management training class. Still, Mother had not yet obtained a new therapist and was still working on trying to find suitable housing.
At the hearing, the caseworker noted that Mother was engaged to be married again and expressed concern about her pattern of frequently entering and exiting relationships. It was also noted that Mother had recently been divorced, and that she has a history of cancelling visits with D.M. and his siblings when she began a new relationship. In particular, the caseworker pointed out that Mother had "missed visits over the last couple of months." Further, the caseworker expressed concerns for D.M.'s safety "if [Mother] does not continue utilizing the skills . . . she has gained in [the parent management training class]." In addition, the caseworker felt that D.M. was "at risk for harm" because of Mother's ongoing "struggle with relationships and making her children a priority when problems arise in her life."
Only 3 months later, on January 24, 2022, the district court held another permanency hearing and found reintegration no longer viable. Later, on March 2, 2022, the State filed a motion seeking a finding of unfitness and termination of parental rights. In the motion, the State alleged that Mother was presumed to be unfit under K.S.A. 38-2271(a)(3) because her older two children had been adjudicated to be in need of care. The State further alleged Mother to be unfit under K.S.A. 38-2269(b)(1) due to conduct or condition which rendered her unable to care for the child; under K.S.A 38-2269(b)(7) for failure of reasonable efforts by public or private agencies toward rehabilitation; under K.S.A. 38-2269(b)(8) for lack of effort to adjust her circumstances, conduct, or conditions to meet the needs of the child; and under K.S.A. 38-2269 (c)(3) for failure to carry out a reasonable plan toward integration. Specifically, the State alleged that Mother was unfit due to her mental health diagnoses, her failure to carry out the tasks set forth in the case plan, and the fact that...
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