In re M.H.
| Decision Date | 18 December 2020 |
| Docket Number | 122,919 |
| Court | Kansas Court of Appeals |
| Parties | In the Interests of M.H. and G.H., Minor Children. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Phillips District Court; Paula D. Hofaker, judge.
S Scott Sage, Sage & Sage Law Office, of Phillipsburg, for appellant natural father.
Melissa M. Schoen, county attorney, for appellee.
Aronda L. Strutt, of Stockton, guardian ad litem.
Before Gardner, P.J., Buser and Bruns, JJ.
Father appeals the termination of his paternal rights to his children M.H. and G.H., challenging the district court's findings regarding his unfitness and the best interests of the children. Father also argues that the district court erred by not appointing a permanent custodian. Finding no error, we affirm.
In the summer of 2016, Father was arrested on rape and assault charges in Pennsylvania. He was released on bond in February 2017 but was later convicted of aggravated indecent assault and indecent assault without consent in violation of 18 Pa Stat. § 3125(a)(1) and 18 Pa. Stat. § 3126(a)(1). In November 2018, a Pennsylvania state court sentenced Father to a minimum of three years and six months and a maximum of seven years in prison. He was sent to State Correctional Institution-Phoenix in Collegeville, Pennsylvania to serve his sentence. According to Father, his earliest release date is in March 2021. By then, M.H. will be about 2 months shy of 18 years old and G.H. will be 15 years old. If Father remains in prison until September 2024, however, M.H. will be 21 years old and G.H. will be 18.
M.H and G.H. were born in Philadelphia, Pennsylvania. M.H.-born June 3, 2003-and G.H.-born December 4, 2005-lived with their Mother, Father, and older sister until 2012, when Father moved out. Mother, M.H., and G.H. continued to live in Pennsylvania until September 2017 when they moved to Kansas to live with the children's maternal grandmother (Grandmother).
But troubles arose in Kansas. In May 2018, Grandmother obtained a protection from abuse order against Mother to protect Grandmother, Grandmother's partner (L.K.), and the children. Mother moved out, but M.H. and G.H. continued to live with Grandmother and remained in her care. In May 2019, Mother died.
The underlying children in need of care (CINC) petition was filed before Mother died and in response to Mother's May 2018 acts which led Grandmother to seek a protection from abuse order against her. The State filed its petition after L.K. reported that Mother was drunk most days and had broken a window on Grandmother's home while drunk and out of control. Based on that incident, Mother was arrested and charged with criminal damage to property and domestic battery, and Grandmother got the protection from abuse order. The district court ordered the children to be placed in the Department for Children and Families' (DCF) temporary care. DCF, through its contracting provider Saint Francis Children Services (SFCS), placed the children with Grandmother.
Mother pleaded no contest to the CINC petition. The district court adjudicated M.H. and G.H. CINC and approved a permanency plan with the goal of reintegration. The district court found that Mother tested positive for alcohol the day of the adjudication hearing, but that Mother had moved to Riley, Kansas, was employed, and had housing.
By April 2019, Mother was discussing a guardianship agreement in which M.H. and G.H. would stay with Grandmother and L.K., and Mother would keep the children over weekends. Upon learning of these discussions, the court added a goal of custodianship to the reintegration plan. But neither reintegration nor a custodianship was achieved before Mother died on May 22, 2019. After Grandmother notified SFCS of Mother's death, SFCS asked the district court to move forward with termination proceedings against Father to ensure the children were able to achieve permanency in a timely manner.
On May 23, the State issued a summons for Father. On May 24, the district court appointed S. Scott Sage as Father's attorney. On May 28, Meagan Eiland, an SFCS case worker, sent Father a letter telling him that he had an attorney and that because the children's Mother had died, the State was seeking to terminate his parental rights. She also told Father the children were doing well and wished to stay with Grandmother. Eiland gave Father her contact information and asked him to respond. Soon after, Sage sent Father notice of the permanency hearing set for June 4.
Father did not appear at that permanency hearing. Still, the district court found that due to Mother's passing, reintegration was no longer viable, so it changed the permanency plan to adoption or permanent custodianship. Because Father was not listed as father on the children's birth certificates, the district court ordered DCF and SFCS to investigate his paternity, and it scheduled a review hearing for August 2019.
Eiland sent additional letters to Father, requesting that he contact her. She sent Father similar letters monthly from June to December, but Father did not respond to any of them.
Nor did Father respond to his attorney's efforts to contact him. Although he had not heard from Father, Sage appeared on Father's behalf at the August 2019 review hearing. He then wrote Father and told him that the district court was exploring whether to move forward with termination proceedings or to consider a permanent custodianship. Sage explained that a permanent custodianship would allow Father to keep his parental rights and the children would remain in Grandmother's care. Sage enclosed two copies of consent forms and encouraged Father to seriously consider voluntarily agreeing to the custodianship.
In late August, Sage received an email from someone at Father's prison stating Father had received the documents but adamantly refused to "sign over his rights to his daughter[s]." But in September, Father seemingly changed course-he wrote Sage a letter stating he would consider letting Grandmother have temporary custody of his daughters if he would regain custody of them upon his release from prison. Sage notified Father that incarceration did not excuse Father's parental duties to support, bond with, and contact the children. Sage also told Father that the district court would likely terminate his parental rights and again encouraged Father to sign the consent forms allowing the appointment of a permanent custodian. Father did not take Sage's advice.
Sage received another email stating Father had received the paperwork, but he emphatically refused to sign the forms. Thus, the case proceeded to a hearing on the State's motion for a finding of unfitness and termination of Father's parental rights.
The State's motion to terminate Father's parental rights to M.H. and G.H. alleged Father was unfit and unlikely to change in the foreseeable future based on these allegations:
Father filed an affidavit objecting to termination. The district court recognized Father's paternity, noted his objection to termination, and set the matter for a termination hearing on March 5, 2020.
The district court allowed Father to participate in the termination hearing by telephone, and Father did so. He testified three times and was able to speak with Sage privately.
Father testified that it had been around five or six years since the children had lived in his home and under his care. When Father was sent to prison in 2017, Mother took the children to live in Kansas against his wishes. Father described the move as "kidnapping" and said Mother had prohibited him from contacting the children.
Yet Father admitted that he did not seek legal intervention so he could contact the children and admitted that he had not paid child support at any time. Father also admitted that he had not contacted his daughters for at least two-and-one-half years and had not seen or spoken to them in person, by phone or over Skype during that time. Father sent the children one letter in December 2019, yet he wrote to his mother about three times a month.
Father testified that he did not have a job in prison, so he had no income. He thought, however, that he could provide for the children financially if he got some insurance money from Mother's death benefits and got disability benefits in Kansas. He testified that he and the children could live with his mother at her Pennsylvania home, which was large enough for all of them.
Father pleaded to keep his children, maintaining that he loved them. Father claimed that he had been a stay-at-home father for years because Mother was busy working. But Father acknowledged that he would not be able to parent his children until he was released from prison.
Grandmother's and the children's testimony painted a different picture of the children's upbringing with Father at home. All three described Father as a violent man, and M.H. testified that Father may have had a drug problem.
Grandmother testified that the children were doing very well in her care-a sentiment Eiland agreed with. Grandmother said that the girls got along with L.K., that he enjoyed...
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