In re Interest of H.A.
| Decision Date | 06 January 2023 |
| Docket Number | 125,170 |
| Citation | 522 P.3d 398 (Table) |
| Parties | In the INTEREST OF H.A., A Minor Child. |
| Court | Kansas Court of Appeals |
R.L. (Mother) appeals the district court's decision terminating her parental rights to her biological child H.A. Mother does not challenge the district court's findings under Kansas law that she was unfit as a parent, that her unfitness was unlikely to change in the foreseeable future, or that termination was in H.A.'s best interests. Instead, Mother challenges only two determinations under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2018): that the State made "active efforts" to reunify the family, and that the evidence proved beyond a reasonable doubt that her continued custody of H.A. will likely result in serious emotional or physical harm to H.A. See K.S.A. 38-2203(a). Having reviewed the record, we find no error.
In November 2016, the State filed a child in need of care (CINC) petition for two of Mother's children—H.A. and her sister—based on Mother's drug use. H.A.'s sister tested positive for methamphetamine at birth. H.A. was removed from Mother's custody but was reintegrated with Mother by September 2018. As a part of its order restoring Mother's custody, the district court ordered that H.A. have no visitation with Father unless he obtained a court order allowing visitation. Mother flouted that order, however, by allowing H.A. to visit and eventually live with Father.
The State filed a second CINC petition for H.A. after her school reported that she had seven unexcused absences. The petition alleged that the school accommodated H.A.'s being picked up outside her home, yet Mother failed to get H.A. on the bus. If H.A., who has autism, continued to miss school, she risked losing the services provided through her individualized education program (IEP).
The State amended its petition to include allegations of H.A.'s inappropriate sexual conduct at school, which the school also reported to the Kansas Department for Children and Families (DCF). According to the petition, H.A., then ten or eleven years old, was "exhibiting behaviors at school such as pulling another male student's pants down and taking off her bra in class." H.A. also drew a picture of a naked cartoon character, "checking panties ... [and] kissing."
That same week the initial petition was filed, police executed a search warrant for the house that H.A. lived in with Father, which Mother did not live in but often frequented. Father was the primary target of the search warrant. Although Mother was not present during the search, she and a man living in the backyard of the home were the secondary targets of the search warrant. Sergeant Sam Humig took several pictures of the home during the search, showing the house was cluttered, dirty, and contained hazardous materials. Officers also discovered what they believed was drug paraphernalia and methamphetamine.
The district court adjudicated H.A. a CINC in December 2020. The district court also found sufficient evidence—based on H.A.'s paternal lineage—that H.A. was an Indian child, as defined in the ICWA. The district court approved placement for H.A. with a non-Indian foster family, however, finding H.A. had been placed with the same family in an earlier CINC case and the family was familiar with H.A.'s autism diagnosis. In February 2021, the district court entered a disposition order that found H.A. eligible to be enrolled as a member of the Comanche Nation. It noted that the Comanche Nation had approved H.A.'s placement with the non-Indian foster home because of her specific needs and autism diagnosis.
The court set Mother's case plan goal as reintegration and found that public and private agencies made reasonable and active efforts to facilitate the permanency plan. The court found that TFI Family Services (TFI) was "actively engaging [M]other in the case plan" and "attempted on multiple occasions to contact" her. And although TFI was "sometimes successful," it was usually unable to reach Mother. The court also ordered Mother to submit to two consecutive urine analysis (UA) tests with negative results before she could start visitations with H.A. The court also ordered Mother to get a drug and alcohol evaluation and follow the recommendations.
But after a permanency hearing in June 2021, the district court determined that reintegration was no longer a viable goal. The court found clear and convincing evidence that Mother's continued custody of H.A. was likely to cause serious emotional or physical damage. The district court explained that H.A. lacked parental participation and a safe and stable environment suitable for her special needs. The district court also found that Mother was not submitting to any drug testing, that this was the second time that H.A. had been removed from Mother's custody, and that this case had been open since December 2020, yet Mother had made little progress in her case plan tasks.
The State moved in December 2021 to find Mother and Father unfit and to terminate their parental rights. Relying mainly on Mother's drug use and her failure to complete case plan tasks, the State argued many reasons to terminate her parental rights. These reasons included Mother's use of intoxicating drugs in excess and in a nature or duration that rendered her unable to care for H.A.'s physical, mental, or emotional needs, see K.S.A. 2020 Supp. 38-2269(b)(3), and Mother's physical, mental, or emotional neglect of H.A., see K.S.A. 2020 Supp. 38-2269(b)(4). The State also alleged that Mother was presumptively unfit under K.S.A. 2020 Supp. 38-2271(a)(5) because H.A. been in an out-of-home placement for more than a year and Mother had substantially neglected or willfully refused to carry out a reasonable reintegration plan.
At the termination hearing, many witnesses testified. In addition to the four case managers who tried to help Mother complete her case plan tasks, these witnesses also testified: the officer who searched and photographed H.A.'s home, two DCF investigators, a therapist that Mother first started seeing in January 2022, the program director for a substance abuse treatment at South Central Mental Health who conducted Mother's drug assessment in January 2022, the CEO of City on a Hill (another substance abuse facility in which Mother was an inpatient from August 23, 2021, to September 19, 2021), Mother's sister-in-law, the Indian Child Welfare Advocate for the Comanche Nation and the Director of Indian Child Welfare (an expert designated by the Comanche Nation).
Mother and her sister also testified. Mother testified that in November 2020, she lived in Arkansas City with friends. She came to live there because the car she was riding in broke down there. She began gambling and developed a gambling addiction. While living in Arkansas City, Mother would drive to H.A.'s Father's house in El Dorado, over 60 miles away, each morning to take H.A. to school. When Mother did not make it to Father's house, H.A. missed school.
From November 2020 to May 2021, Mother made little if any progress in her case plan tasks. But in May 2021, Mother checked herself into an addiction facility in Wichita (Miracles) before discharging herself a few days later. After that, she attended treatment at Four County Mental Health in Winfield for over two months. Four County referred Mother to City on a Hill for inpatient treatment and Mother stayed there until September 2021. She then moved to Wichita for a few months before finally moving in with her sister in El Dorado in late December 2021.
Between January 2022 and the termination hearing in April 2022, Mother made significant progress in her case plan. She completed a drug and alcohol assessment and finally submitted to regular UA testing, which showed Mother was no longer using drugs. She failed a hair follicle test in January but passed one in March. Mother also started having visits with H.A. and had ten total visits by the termination hearing. Mother also continued attending drug and alcohol abuse treatment and therapy through South Central Mental Health in El Dorado after leaving City on a Hill. She also completed several parenting classes and found a job at McDonalds to begin the week after the termination hearing. Mother also testified that her application for public housing had recently been accepted.
Consistent with Mother's testimony, the State's evidence generally showed that Mother waited until January 2022 to make any serious efforts toward reintegration. From December 2020 through December 2021, Mother failed to take all but one of her scheduled drug tests, twice tested positive for amphetamines and methamphetamine, never progressed to visitations, communicated infrequently and sporadically with most of her case managers, and generally ignored requests to disclose her address. Mother also failed to obtain employment or secure housing in that time. She spent some of this time in jail. Mother also became pregnant by her boyfriend, who also struggled with drug addiction issues and was a party to a separate CINC case.
Evelyn Turner, the expert witness, testified that the State made reasonable and active efforts to reunite H.A. with Mother but those efforts failed. She also testified that Mother's continued custody of H.A. was likely to result in H.A.'s serious emotional or physical damage. Turner recommended terminating Mother's parental rights.
Mother presented evidence of her treatment at various treatments centers, which she claimed started in May 2021. Mother generally accepted blame for missing various drug tests and case plan meetings, but also suggested that at times she was unable to get to her appointment because she lacked transportation.
Calling Mother's likelihood of maintaining her sobriety into question, the State elicited testimony from Miranda Unruh, CEO of City on a Hill, showing City on a...
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