In re E.K.
| Docket Number | 125,688 |
| Decision Date | 21 July 2023 |
| Parties | In the Interests of E.K. and W.K., Minor Children. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Elk District Court; JOE E. LEE, magistrate judge.
Grant A. Brazill, of Morris Laing Law Firm, of Wichita, for appellant natural mother.
Jill R. Gillett, county attorney, for appellee.
Stephany L. Hughes, of Stephany L. Hughes LLC, of El Dorado guardian ad litem.
Before HURST, P.J., ATCHESON and PICKERING, JJ.
The Elk County District Court erred in terminating S.K.'s right to parent her daughters E.K. and W.K.-B. We reverse the termination order and remand for further proceedings tailored to the children's continuing need for care and S.K.'s apparent inability to provide that care at least at the time of the termination hearing. Our analysis has been hampered by a record plagued with vague and cursory descriptions of the reasons S.K. may be an unfit parent-a central issue in the proceedings-in both the State's motions to terminate and in the district court's resulting orders. We have also been stymied by the apparent lack of attention the social service agency charged with facilitating family reunification has given two key impediments to reuniting mother with her daughters.
From the appellate record, a reasonable fact-finder could not clearly and convincingly conclude the grounds of S.K.'s unfitness properly presented to and accepted by the district court would persist for the foreseeable future, rendering the termination order legally unsound. We reverse and remand with directions.
S.K was born and raised in an emotionally and physically abusive home. In 2016, when she was about 14 years old, S.K. gave birth to E.K. Although E.K.'s paternity has not been established for purposes of these proceedings, S.K. believes her stepbrother is the child's father. E.K. is profoundly autistic. As of the termination hearing in July 2022, she was nonverbal, continued to wear diapers, and was otherwise developmentally impaired.
S.K gave birth to W.K.-B. in 2018. Her father is H.B., who has had a comparatively limited association with the child. He is not E.K.'s father; so the girls are half-sisters. H.B relinquished his parental rights and is not a party to this appeal. But H.B.'s parents have been the principal foster placement for both E.K. and W.K.-B. throughout these proceedings and remained so in July 2022.
The State took E.K. and W.K.-B. into emergency custody in September 2020 after learning of their squalid home environment and poor physical condition. At the time, S.K. was living with L.R., who goes by the nickname Jimmy. As we explain, Jimmy remains an enigmatic and troubling presence in S.K.'s life and, as a result, in these proceedings. Both S.K. and Jimmy admitted to a representative of the Kansas Department for Children and Families they were regularly using methamphetamine and marijuana. When taken into state custody, the children were neither verbal nor otherwise socialized. A caseworker described them as "feral." Both girls were unkempt and had uncontrolled infestations of head lice with open and healing bites, indicating a long-term problem.
E.K. had physical injuries that likely were self-inflicted during tantrums associated with her autism and had severe dental neglect requiring that many of her teeth be capped or extracted.
Early on in their foster placement, the girls would hoard food or gorge themselves to the point of vomiting. They engaged in unusually sexualized behavior. E.K.'s conduct was particularly pronounced. W.K.-B. also became upset if any man approached her. Those negative behaviors dissipated over time and largely ended.
Because of her profound autism, E.K. can have emotional and sometimes violent outbursts. She has slammed her head into walls or other fixed objects or pulled out her own hair. Other times, she has attacked the people around her, striking them or pulling their hair. Those incidents have lessened as her foster placements have become more adept at soothing E.K. and providing her with a regulated environment familiar to her. Although E.K. remains profoundly autistic, she has begun to communicate in a rudimentary way with her foster placements using a combination of grunts and hand gestures. The record indicates W.K.-B. is largely hitting developmental milestones for a child her age.
The Department outsourced the development and implementation of a family reunification plan to TFI Family Services, a nonprofit social service agency. Early on, S.K. arguably was slow to undertake the tasks set out in the plan. And she was permitted no visits with the children until she demonstrated a break in her drug dependency. During that time, S.K. initially was in jail, then in drug treatment, and later in a "sober living" residence. During the spring of 2021, S.K. began to directly address the reunification plan. She participated in substance abuse aftercare and in mental health counseling. From then through the termination hearing, S.K. tested negative for illicit drugs. She had stable employment during that time and obtained a physically suitable residence for reunification with E.K. and W.K.-B.
Also during that period, S.K. had monitored visits with the children. Caseworkers reported S.K. interacted well with W.K.-B. and appeared to have a genuine bond with the child. She fared less well with E.K., due at least in part to autism-related barriers. The record suggests a caseworker or a foster placement sometimes had to intervene to help regulate E.K.'s behavior. But the record also indicates the social service agency never assisted S.K. in getting information or training on living with a profoundly autistic child. At the termination hearing, S.K. testified she had been looking for that sort of help on her own.
In July 2021, S.K. confirmed to her caseworkers that she was pregnant with twin boys and that Jimmy was the father. The caseworkers were unaware that S.K. had maintained a relationship with Jimmy. It is unclear if S.K. and Jimmy separated for a time after E.K. and W.K.-B. were taken into state custody and then reunited or if they had remained a couple. The district court concluded S.K. had been less than forthcoming with the caseworkers about her relationship with Jimmy.
The social service agency reconfigured the reunification plan by assigning tasks to Jimmy and including him in visits with the children, apparently on the assumption he would be part of the family unit. Jimmy undertook none of his assigned tasks except for getting a mental health evaluation shortly before the termination hearing. At the hearing, S.K. testified that she had given birth to the twins and she and Jimmy were engaged to be married. S.K.'s parental relationship with the twins was not directly at issue in the district court; nor is it in this appeal.
E.K. and W.K.-B. reacted negatively following visits in which Jimmy participated. E.K. acted out more frequently and with heightened agitation, including violent outbursts that one of the foster placements described as being as bad as any of the early episodes. E.K. also resumed the sexualized behavior she displayed after first being placed in state custody. Following the visits, W.K.-B. would withdraw socially and become unusually quiet. The record shows W.K.-B. separately told her placement and a caseworker, "No more Jimmy." Based on those reports, the social service agency precluded Jimmy from further visits with the children but did not otherwise adjust the reintegration plan. Nothing in the record indicates the caseworkers or the girls' therapists tried to find out why E.K. and W.K.-B. reacted so adversely to being around Jimmy.
The State filed motions to terminate parental rights to E.K. and W.K.-B. on June 30, 2022, and the district court held a joint termination hearing 18 days later. Each motion alleges S.K. to be an unfit parent because "[t]he child" came into state custody when S.K. was arrested for using methamphetamine and marijuana and because "[t]he conditions of the child are such that the parents cannot care for the child." The motions recited nothing more and do not identify any statutory grounds for unfitness outlined in the Revised Kansas Code for Care of Children, K.S.A. 38-2201 et seq. Accompanying each motion was an identical 17-page report prepared by a TFI Family Services manager entitled "Points of Severance" reciting circumstances apparently drawn from the agency's records and possibly other sources. The report grouped entries, often outlined in chronological order, under several headings corresponding to language used in the Kansas Code to describe grounds of parental unfitness: (1) using dangerous drugs rendering a parent unfit, listed in K.S.A. 38-2269(b)(3); (2) failing to maintain regular contact or communication with a child who has been out of the home, listed in K.S.A. 38-2269(c)(2); (3) failing to carry out a reasonable plan of reintegration for a child in an out-of-home placement, listed in K.S.A. 38-2269(c)(3); and (4) a presumption of unfitness under K.S.A. 38-2271(a)(9) based on a parent's lack of communication with a child despite having knowledge of child's birth. The report also contains a short narrative on the best interests of the children favoring termination of parental rights.
During the one-day termination hearing, the district court received documentary evidence and heard from nine witnesses, including S.K., the girls' foster placement, a caseworker from TFI Family Services, a case manager from that agency, and a social worker with the Department. The district court issued mirror-image orders in early October 2022 terminating S.K.'s rights, finding she was an unfit parent,...
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