In re M.B.
| Docket Number | 125,841 |
| Decision Date | 11 August 2023 |
| Parties | In the Interests of M.B., A.B., A.B., A.B., and A.B., Minor Children. |
| Court | Kansas Court of Appeals |
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In the Interests of M.B., A.B., A.B., A.B., and A.B., Minor Children.
No. 125,841
Court of Appeals of Kansas
August 11, 2023
NOT DESIGNATED FOR PUBLICATION
Appeal from Wyandotte District Court; JANE A. WILSON, judge.
Christopher Cuevas, of Kansas City, for appellant natural mother.
Garett C. Relph, deputy district attorney, and Mark A. Dupree Sr., district attorney, for appellee.
Before HURST, P.J., HILL and PICKERING, JJ.
MEMORANDUM OPINION
PICKERING, J.
In this case, M.J. (Mother) appeals the termination of her parental rights to her five children. On appeal, Mother challenges the district court's rulings regarding her unfitness, future unfitness, and that termination of her parental rights is in the best interests of her five children. Having reviewed the record, we find no reversible error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2019, the State filed petitions alleging that Mother's children, M.B. (YOB 2011), An.B. (YOB 2013), Ak.B. (YOB 2015), Ay.B. (YOB 2016), and Aa.B. (YOB 2017), were children in need of care. The State explained that the children were in need of care because they lacked adequate parental care; were without the care or control
necessary for their physical, mental, or emotional health; and had been physically, mentally, or emotionally abused or neglected.
In particular, the State asserted that the children had been observed several times without adequate supervision. It was reported that while Mother was sleeping, the children would leave the house unsupervised looking for food. For instance, they were seen walking to a local pizza restaurant, stating they were hungry. The younger children were also observed wearing only diapers, smelling "musty," and appearing to be covered in dirt. A worker for the Kansas Department for Children and Families (DCF) noted that Ay.B., then age three, was naked and "appeared thin." Mother's home was cluttered, with "sticky" floors, dirty surfaces, feces on the floor beside the cats' litterbox, and having a "foul odor." The room where the children slept did not have any beds. An.B., age six at the time, reported not feeling safe in the home because their maternal grandmother and another adult would lock the children in the "stinky room" for times so long that the children had to urinate in a bowl or on the floor and defecate in the room.
On September 3, 2019, the district court entered an ex parte order of protective custody removing the children from Mother's care. Three days later the district court issued a temporary custody order, placing the children in the temporary custody of the Secretary of DCF.
At the adjudication and disposition hearing held in October 2019, Mother entered a statement of no contest to the petition, and the district court adjudicated each child individually as a child in need of care (CINC). The district court entered several orders directing Mother to: (1) contact her court services officer (CSO) once a month or whenever she had a change of address or phone number; (2) obtain and maintain stable housing and income and provide verification; (3) sign any necessary releases of information; (4) visit with the children at the discretion of Cornerstones of Care (Cornerstones); and (5) participate in an initial assessment through Cornerstones.
Our review of the record reveals that the district court steadily proceeded with this CINC case. There were review hearings in both January 2020 and July 2020. At each of those hearings, the court restated the orders from the October 2019 hearing (listed above), but, at the January 2020 review hearing, added orders that Mother participate in a parenting education course and provide proof of completion; obtain a mental health assessment and abide by the recommendations; and submit to random drug tests and, if a test was positive, complete a drug and alcohol assessment. At the August 2020 permanency hearing, reintegration was still the case plan goal. At the November 2020 review hearing, however, the court set the case for a termination of parental rights hearing for late March 2021.
Following the November 2020 hearing, the State moved to terminate Mother's parental rights in January 2021. The State's motion asserted Mother's parental rights should be terminated under K.S.A. 38-2269(b)(4), (b)(7), (b)(8), (b)(9), (c)(2), and (c)(3). The State also alleged that the presumption of unfitness established by K.S.A. 38-2271(a)(5) applied because the children had been in an out-of-home placement for more than one year and Mother had substantially neglected or willfully refused to carry out a reasonable plan, approved by the district court, directed toward reintegration of the children into the parental home.
Prior to the scheduled March 2021 termination hearing, the State advised that caseworkers had requested additional time for Mother to complete the court's orders. The district court granted the request and rescheduled the termination hearing for June 2021. At the June 2021 hearing, the State requested a continuance due to the unavailability of a witness, and the court set a September 2021 hearing date to hear the State's motion to terminate parental rights. The court also ordered that the case plan "shall be a dual one of reintegration and adoption." At the same hearing, the court made additional orders, including a specific order for Mother to participate in a psychological evaluation and abide by any recommendations. This order was recommended by Mother's therapist
because Mother, whose attendance at therapy was "sporadic," was not forthcoming when she did attend therapy. Mother also denied the historical reasons for why the State had filed its CINC petitions.
After the hearing, the State filed an amended motion to terminate Mother's parental rights. The motion stated that Mother was still staying in contact with her CSO, appeared to have signed the necessary releases, and had provided verification of her income and housing. But there were some concerns regarding Mother's housing, namely cockroach infestation and lack of electricity in the home. As for her visitations with her children, the State maintained concerns about Mother's inconsistent attendance; she was "often late to visits or does not show up." Cornerstones reported concerns of Mother's "ability to provide structure for and to manage the children, her allowing unpermitted individuals to attend visits, and the children's lack of engagement or shutting down during visits." Despite Mother successfully completing a parenting class, PMTO, the family's progress at visits had gradually declined. At the time of the amended motion's filing, Mother had mostly provided negative drug tests, having tested positive for THC in January 2020.
The State cited the same statutory factors supporting its request for termination in the amended motion with one statutory amendment. Due to the length of the case, which had started in September 2019, the State replaced the presumption in K.S.A. 38-2271(a)(5) with a statement that "[b]y the time of [the termination hearing]" Mother would be presumed unfit under K.S.A. 38-2271(a)(6). This presumption applies when a child has been in an out-of-home placement under court order for two years or longer, the parent has failed to carry out a reasonable plan directed toward reintegration of the child into the parental home, and there is a substantial probability that the parent will not carry out such a plan in the near future.
A September 2021 hearing on the State's amended parental rights termination motion was scheduled but continued because caseworkers requested additional time to work with Mother. The district court ultimately conducted the hearing in February 2022. The State's witnesses included a CSO, Cornerstones foster care permanency manager, and Cornerstones foster care case manager. At the time of the hearing, the five children had been in State custody for over 28 months.
Testimony from CSO
Mother's CSO testified she had worked with Mother since the beginning of the case. The CSO provided testimony about the several steps taken to reintegrate Mother with the children, beginning with an initial assessment. This assessment recommended that Mother participate in a mental health assessment and abide by the recommendations; participate in a parenting education course; participate in random drug testing, and if she tested positive, to undergo drug and alcohol evaluation and follow their recommendations; and follow a protective order between her and one of the children's fathers.
The CSO testified that Mother stayed in contact with her "for the most part." The CSO clarified that "[s]ometimes there would be several months that I wouldn't hear from her. But then she would re-engage and we'd discuss court orders." At the time of the February 10, 2022 hearing, she had not heard from Mother since January 13, 2022.
After Mother completed a mental health assessment, the recommendation was that Mother should participate in individual therapy. The mental health assessment diagnosed Mother with adjustment disorder-unspecified trauma and stressor disorder. Mother was not very engaged in therapy. As a result, the therapist recommended a psychological evaluation and closed Mother's case.
In light of the therapist's recommendation, at the June 2021 hearing, Mother was ordered to complete a psychological evaluation and parenting assessment. According to the CSO, while Mother had signed most of the releases of information, the CSO did not know if Mother had completed the psychological evaluation because Mother had not signed the release for the psychological evaluation that she had completed at Responsive Centers.
The CSO stated that since she had been reviewing orders with Mother during their monthly meetings, Mother should have known that she needed to sign a release. At the time of the February 2022...
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