In re L.B.
| Decision Date | 08 April 2022 |
| Docket Number | 124,280 |
| Parties | In the Interests of L.B. and O.B., Minor Children. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; Michael J. Hoelscher, judge.
Grant A. Brazill, of Morris, Laing, Evans, Brock & Kennedy Chartered, of Wichita, for appellant natural father.
Kristi D. Allen, assistant district attorney, and Marc Bennett district attorney, for appellee.
Before Atcheson, P.J., Warner and Hurst, JJ.
The appellant-the natural father of L.B. and O.B.-challenges the district court's decision to terminate his parental rights. The court found that the appellant, whom we refer to as Father, was unfit based on several statutory factors stemming in part from Father's disappearance, arrest jail time, and potential criminal culpability while this case was pending. The court also found that Father's unfitness was unlikely to change in the foreseeable future and that terminating his rights was in the children's best interests. Father asserts on appeal that the evidence did not support the court's findings that he was an unfit parent. After carefully reviewing the record before us and the parties' arguments, we affirm the court's decision.
In June 2019, Wichita police conducted a welfare check after receiving a report that two young children were chasing a dog around a trailer park unsupervised. The children-L.B., born in 2013, and his younger sister O.B., born in 2015-were dirty but otherwise appeared healthy.
L.B and O.B. informed the police that they did not know where their mother was. Mother eventually arrived and spoke to the police and to the caseworkers from the Kansas Department for Children and Families (DCF). She explained that the children lived with her and that their 15-year-old cousin was supposed to be watching them. DCF then learned that Mother's water and electricity were recently shut off. Mother agreed to take a drug test and tested positive for multiple illegal drugs.
A few days later, DCF contacted Father, who was no longer in a relationship with Mother and did not speak to her often. Father had gotten out of jail a month earlier and had just started a new job. He told the caseworker that he was splitting his time between living with a friend and living with his sister when he had L.B. and O.B. Father also agreed to submit drug tests; his original urinalysis was negative, but his first hair test was positive for methamphetamine.
About a week after the initial report, the district court entered an ex parte order to place the children in DCF custody. The State then petitioned the district court to adjudicate L.B. and O.B. as children in need of care. The petition alleged, with regard to Father, that he could not care for the children because he had no stable housing, tested positive for methamphetamine, was on probation, and had pending criminal charges. The State was also concerned about Father's extensive criminal history and a history of domestic violence with Mother, which L.B. had described to caseworkers. Mother had obtained a protection from abuse order against Father in 2017 for an argument that the children witnessed. And DCF had received five reports about the family in the past six months, including allegations of domestic violence in front of the children and physical abuse of L.B., who at that time was five years old.
Father and Mother each submitted no-contest statements in response to the petition. In October 2019, the district court adjudicated L.B. and O.B. to be children in need of care. The court then set a permanency hearing for two months later, with a stated goal of reintegration.
At the December 2019 permanency hearing, the court found that Father was making progress toward reintegration. Father had been employed by a general contractor for several months. He had completed a substance-abuse evaluation, had started therapy and drug treatment, and had attended budgeting and nutrition classes. Father also owned a four-bedroom trailer that he was presently renting to others for income; he was prepared to move into the home with L.B. and O.B. if he obtained custody. And other than the hair follicle test in August 2019 that was positive for methamphetamine, none of Father's other random tests reflected drug use.
That said, though Father had made significant strides toward reintegration, not all the evidence was positive. In particular, the State had lingering concerns that Father did not have a driver's license and had pending criminal charges for auto theft, obstruction, and fleeing or eluding; if Father were convicted, these offenses could carry lengthy prison sentences. And the history of Father's violence and abuse remained a significant concern.
Over the next several months after the permanency hearing, Father continued to make progress and complete reintegration tasks:
Father and his girlfriend also consistently attended weekly visits with L.B. and O.B. in person or virtually, as the pandemic required, and Father regularly communicated with his case manager. These visits went well, and the supervisor never observed any issues in Father's interactions with the children.
In early summer 2020-one year into the case-the case manager was prepared to reintegrate L.B. and O.B. with Father after his continued progress over the past year. Father sold his trailer and was preparing to move into a four-bedroom house with his fiancé and her three children. And Father and his fiancé had begun family therapy with L.B. and O.B., one of the final steps before the children would be ready to reintegrate with their parents.
But in July 2020, this progress ground to a halt. After Father allegedly participated in an armed home invasion, he was charged with aggravated burglary, aggravated kidnapping, two counts of kidnapping, and aggravated robbery. With a criminal history score of A, Father would face up to 825 months in prison if he were convicted of these charges. The State also sought to revoke Father's recently granted probation and impose his underlying 48-month prison sentence.
When these new charges were filed, Father disappeared and was missing for over a month. Neither the children's case team nor his family knew his whereabouts during this period. He also suffered a gunshot wound at some point while on the run. Father was eventually apprehended and arrested in late August 2020; he spent the next three months in jail and was released on bond in November 2020.
And shortly after Father's arrest, the State changed its approach to the case and moved to terminate his parental rights.
Nevertheless, after he was released from jail in November 2020, Father attempted to resume regular visits with the children. At the outset, these visits seemed to go well, but as time went on, caseworkers had significant concerns that the children feared Father and continued to suffer consequences from his past behavior.
From November 2020 to April 2021, Father continued visits with L.B. without issue. But the same was not true for O.B., who was diagnosed with posttraumatic stress disorder from trauma she experienced living with Father, Mother, and L.B. O.B.'s therapist reported that even though O.B. seemed fine during visits, she experienced persistent outbursts and nightmares, and she urinated on herself before and after visits. According to the therapist, there were no issues during O.B.'s visits with Father because O.B. felt pressure to please Father. Her therapist also reported that O.B.'s mental health markedly improved when she was not having visits with Father. Based on this information, the case team suspended Father's visits with O.B. entirely in January 2021 due to concerns about her mental health when around Father and her brother.
The district court conducted an evidentiary hearing on the State's termination request (which involved both Mother and Father) over four days in April and May 2021. At the time of the hearing, the pending charges against Father had not been resolved, nor had his probation been revoked. Father had lived in the four-bedroom home with his fiancé and her children for several months. After a span of unemployment-including his recent disappearance and incarceration-Father was working full-time. And he had completed nearly all his court-ordered reintegration tasks.
At the hearing, Father presented evidence of his progress in his reintegration case plan. But he also acknowledged his four-plus month...
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