In re Interest of T.H.

• Decision Date: 20 August 2021
• Docket Number: No. 123,504,123,504
• Citation: 494 P.3d 851
• Court: Kansas Court of Appeals
• Parties: In the INTEREST OF T.H., A Minor Child.

494 P.3d 851

In the INTEREST OF T.H., A Minor Child.

No. 123,504

Court of Appeals of Kansas.

Opinion filed August 20, 2021.

Katie J. Schroeder, of Schroeder Law Office, LLC, of Beloit, for appellant natural father.

Tabitha D.R. Owen, county attorney, for appellee.

Before Arnold-Burger, C.J., Buser, J., and McAnany, S.J.

Arnold-Burger, C.J.:

This is a case about a father who had custody of his son with the blessing and encouragement of the State, whose son was thriving in his care, and who arranged for his son to be cared for by someone with whom they both have a close familial relationship while father went to prison. We further have a father who has provided for his son financially while he is in prison and has a home and job waiting for him when he gets out of prison. We have a father who has maintained contact with his son on a regular basis while he is in prison. But instead of letting this father exercise his rights as a parent under difficult circumstances, the State swooped in and transferred custody of his son when he went to prison—not one minute before—and placed the child with the child's maternal grandparents. Even so, this father continued to provide for the child, and the State continued to assure the father that it would agree to a permanent custodianship of his son with the close family friend rather than seek to terminate his parental rights. And then, seemingly out of nowhere, the State moved to terminate this father's parental rights for no other reason than his incarceration. Because we find that the district court's finding of this father's unfitness was not supported by clear and convincing evidence, and its decision that it was in the child's best interests to have father's parental rights terminated was unreasonable, we reverse.

FACTUAL AND PROCEDURAL HISTORY

The facts are not in dispute.

T.H., born in 2015, is the only child of Father and Mother, although Mother has four other children. Mother has relinquished all rights to her children, and this appeal involves only Father's parental rights to T.H. T.H. was five years old and in preschool at the time of the termination hearing in this case.

Mother and Father were in a relationship when T.H. was born, but the relationship ended about six months after his birth. They never had a formal custody arrangement, but shared custody of T.H. with T.H. spending a week or two at a time with each parent. Father worked on oil rigs and was out of town for extended periods, but he would visit T.H. at Mother's on his day off. Father has always provided financial support for T.H.

When Father needed help T.H. would also stay with a woman Father described as his "sister," Stephanie. T.H. called Stephanie his "aunt." But she was a long-term friend of Father, not a blood relative. Father considered Stephanie a member of the family and she attended family functions, including those involving T.H.'s siblings. She was present the day T.H. was born.

When T.H. was 14 months old, he suffered a concussion under Mother's care. Father took custody of T.H. and filed for a protection from abuse order against Mother. Father was granted temporary custody of T.H. while T.H. was recovering. After he recovered, Mother and Father continued their shared parenting agreement. At roughly the same time, Father pleaded guilty to possession of methamphetamine with intent to distribute. The district court sentenced him to probation for 18 months, with an underlying 18-month prison sentence.

In 2018, Father visited T.H. and discovered that T.H.'s half-sister had put liquid nail adhesive on his back. When Mother removed the adhesive, it blistered and pulled his skin. Mother did not tell Father about this, and she did not take T.H. to the doctor. Father immediately removed T.H. from Mother's care and sought another protection order against Mother. Father returned T.H. to Mother's care in the summer of 2019 after six to eight months in his custody. During that time, Father allowed Mother and siblings to visit T.H. at his home but they only visited twice. T.H. revealed that he missed Mother and his siblings, so Father allowed him to return. By this time, Father was working at Bonnie Plants in Plainville and would not get home until 10 or 11 in the evening, and T.H. was about to start preschool. Father advised Mother that he would try letting her have primary custody of T.H. again "but if anything happened, this would be it."

In January 2019, the State charged Father with distribution of methamphetamine, and the court released him pending trial on pretrial supervision. Father admits that in the past he sometimes used methamphetamine, although he contends that it was never when T.H. was with him. He claims that he was not a regular user, and no one at the hearing disputed that claim. He contends he started dealing drugs to provide for his family while between jobs.

On September 20, 2019, T.H. arrived at preschool and had burns on his feet, which the school reported to the Department for Children and Families (DCF). An investigation by Child Protective Services (CPS) revealed that Mother had started a fire to burn trash, and T.H. stepped on burning plastic with his bare feet. Mother did not take T.H. to the hospital after he burned his feet but ran water over his feet and put medicine on the burns.

Father first learned of T.H.'s injuries on September 25, when he went to T.H.'s preschool with his parents for Grandparents Day. Father told CPS this was the third incident where Mother had hurt T.H. while in Mother's care. Father told CPS there was no custody order in place. He advised CPS, Mother, and maternal grandparents that he planned to take T.H. to live with him in Plainville. No one objected. Father retained physical custody of T.H. until he went to prison in March 2020.

Although we do not lay out the facts here of other incidents related to Mother's other children when T.H. was with Father, suffice it to say that she had a significant drug problem that led to her inability to parent any of her children. This ultimately led to her voluntary relinquishment of her parental rights to all her children. The maternal grandparents have always helped raise the children, financially provided for the children and Mother, and they currently have physical custody of the children. All children are doing well under their care.

On October 4, 2019, following another incident at Mother's home involving her other children—T.H. was at Father's house when this incident occurred—the State filed a child in need of care (CINC) petition over all the children, including T.H. The petition did not list any concerns about Father, only that because of inadequate supervision Mother had allowed T.H. to burn his feet and she failed to seek treatment for him. A couple of days later, Smith County Sheriff's Deputy Kenneth Jones filed a protective custody application for Mother's other four children (not including T.H. ) based on concerns about Mother's home and care of the children, which was granted the next day.

Four days later, the district court held a temporary custody hearing regarding all the children. The district court ultimately placed the children in DCF custody. The court allowed T.H. to remain with Father, and the court ordered family preservation services in his home. The court placed Mother's other children with maternal grandparents. The court and DCF were aware of Father's pending criminal charges. Father allowed T.H. to have contact with his siblings and maternal grandparents and DCF encouraged the same. Family preservation services randomly visited Father's home, and Father submitted to frequent and random UAs. During this case, he has never tested positive. Between DCF, Community Corrections, and the court, he estimates he submitted to 77 UAs, all clean.

While with Father, T.H. received a physical examination and treatment for his burns. Father also had T.H. screened at school for an individualized education program (I.E.P.). Father was truthful with DCF about his pending criminal case and likelihood of a prison sentence. Father discussed the possibility of the court placing T.H. in Stephanie's custody while he served out his prison sentence. In her adjudication hearing report to the court dated November 12, 2019—just over 30 days after DCF took legal custody of T.H.—St. Francis Community Services (SFCS) Case Manager Kayelee Fokken, with the approval of her supervisor, recommended T.H. be released from DCF custody and placed with Father:

"[Father] appears to be following [SFCS] recommendations and followed the orders of his PO. [Father] has been very focused on carrying [sic ] for [T.H.] and displays that he wants what is best for [T.H.]. [Father] has inquired what may happen to [T.H.] should he be sentenced to prison. Staff has discussed with DCF that [T.H.] may be able to go to [Father's] sister [Stephanie].

"....

"Therefore, Saint Francis respectfully requests the following at this time:

"[T.H.] be released from DCF custody and placed with this father."

Just two weeks later, the same case manager noted that Father had lost his job because of his impending incarceration. Although SFCS knew imprisonment was approaching since Father's first contact with DCF, the case manager changed her recommendation from releasing T.H. from DCF custody, to keeping T.H. in DCF custody and releasing him to his maternal grandparents when Father went to prison. At that time, DCF believed, based on Father's report, that Father could go to prison for 10 years.

The next month, the district court held an adjudication hearing concerning the children. As for T.H., the district court adjudicated him as a CINC and ordered all previous orders to remain in effect. T.H. remained in DCF custody and his placement with Father continued. At the disposition hearing in January 2020, the district court made similar orders. DCF had no concerns with T.H. residing with Father, and Father could meet all T.H.'s needs. DCF conducted regular home visits.

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