In re A.M.

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NOT DESIGNATED FOR PUBLICATION

No. 116,391

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of:
A.M. (D/O/B XX-XX-11),
E.M. (D/O/B XX-XX-07).


MEMORANDUM OPINION

Appeal from Johnson District Court; KATHLEEN SLOAN, judge. Opinion filed May 12, 2017.
Reversed and remanded with directions.

Richard P. Klein, of Olathe, for appellant.

Bruce Hedrick, guardian ad litem, Shawn E. Minihan, assistant district attorney, and Stephen M.
Howe, district attorney, for appellee.

Before GARDNER, P.J., PIERRON and ATCHESON, JJ.

Per Curiam: As a society, we have chosen to place an exceptionally high value on
the parent-child relationship and countenance government intrusion in that relationship
only in compelling circumstances. We are even less willing to allow the State to
irrevocably sever the legal ties affirming the blood-bond of parent and child.
Accordingly, courts have the authority to terminate the parental rights of only those
persons found to be irredeemably unfit to care for their children—nothing less will
suffice. So a court may not strip the below average and even the poor parent of that role
in deference to someone who almost certainly would do better. The Johnson County
District Court's decision to terminate the right of B.C. to raise his daughters A.M. and
E.M. tests those societal values and legal precepts. Measured that way, the record
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evidence fails to show B.C. to be chronically unfit. We, therefore, reverse the termination
of B.C.'s parental rights and remand with directions for further proceedings.

Common Law and Statutory Framework

Parents have a fundamental right to raise their children. Santosky v. Kramer, 455
U.S. 745, 759-60, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686,
697-98, 187 P.3d 594 (2008). Protection for that relationship has roots in natural law and
religious teachings, and the right represents the archetype substantive liberty interest
shielded in the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. See Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000) (substantive liberty interest) (plurality opinion); Pierce v. Society of Sisters, 268
U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (recognizing "the liberty of
parents and guardians to direct the upbringing and education of children under their
control"); 67A C.J.S., Parent and Child § 3 (noting judicial authority characterizing
parent-child relationship as reflecting "natural law and divine providence"). The State
may extinguish the legal relationship between parent and child only upon clear and
convincing evidence the parent is "unfit" and likely will remain so indefinitely. K.S.A.
2016 Supp. 38-2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014);
see Santosky, 455 U.S. at 769-70 (due process mandates government produce clear and
convincing evidence supporting termination of parental rights).

In this case, B.C. challenges the sufficiency of the evidence the district court relied
on to terminate his parental rights. When reviewing a district court's determination of
unfitness, an appellate court must be convinced, based on the full evidentiary record
viewed in a light favoring the State as the prevailing party, that a rational factfinder could
have found that decision "highly probable, i.e., [supported] by clear and convincing
evidence." In re B.D.-Y., 286 Kan. at 705. The appellate court cannot weigh conflicting
evidence, pass on the credibility of witnesses, or otherwise independently decide disputed
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questions of fact. 286 Kan. at 705. In short, any conflicts in evidence must be resolved to
the State's benefit and against B.C.

As provided in K.S.A. 2016 Supp. 38-2269(a), the State must prove the parent to
be unfit "by reason of conduct or condition" making him or her "unable to care properly
for a child" and that the circumstances are "unlikely to change in the foreseeable future."
The statute contains a nonexclusive list of nine conditions that singularly or in
combination would amount to unfitness. K.S.A. 2016 Supp. 38-2269(b). And the statute
lists four other factors to be considered if a parent no longer has physical custody of a
child. K.S.A. 2016 Supp. 38-2269(c). Those factors may be illustrative of parental
unfitness, but the Revised Kansas Code for Care of Children, K.S.A. 2016 Supp. 38-2201
et seq., contains no formal definition of the term. The Kansas Supreme Court surveyed
cases discussing unfitness in termination proceedings and indicated it entails unsuitability
and incompetence, often coupled with some moral dereliction. In re Brooks, 228 Kan.
541, 546-47, 618 P.2d 814 (1980). This court has equated unfitness with the "incapacity
to perform parental obligations." In re A.N.P., 23 Kan. App. 2d 686, 692, 934 P.2d 995
(1997); see In re Adoption of A.M.M., No. 109,247 2013 WL 5507483, at *5 (Kan. App.
2013) (unpublished opinion), rev. denied 298 Kan. 1202 (2014); In re Baby Girl E., No.
103,740 2010 WL 4668356, at *4 (Kan. App. 2010) (unpublished opinion), rev. denied
291 Kan. 912 (2011).

Taking full account of those substantive legal principles and the governing
standard of review, we have examined the district court's conclusions that B.C. was unfit
to parent A.M. and E.M. and that the familial circumstances were unlikely to change in
any predictable time. We find the evidence failed to support those determinations for the
reasons we explain. Before turning to that explanation, we mention the district court also
found the termination of B.C.'s parental rights to be in the best interests of A.M. and E.M.
Having found a parent to be unfit, a district court must then make a best-interests
determination to warrant terminating parental rights. K.S.A. 2016 Supp. 38-2269(g); In re
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R.S., 50 Kan. App. 2d at 1115-16. Because we hold the district court's assessment of
unfitness to be erroneous and that alone requires reversal, we need not and do not
otherwise address the best-interests finding.

Factual and Procedural Background

B.C. never married the mother of A.M. and E.M., and so far as the record
indicates, they had an on-again, off-again relationship. B.C. did not even know about
A.M. until months after her birth. B.C. had physical custody of both girls for some time
before these proceedings began. Their mother was either unable or unwilling to care for
them. In this case, she voluntarily relinquished her parental rights and did not actively
participate in the district court proceedings. She is not a party to this appeal.

The State filed petitions to find A.M. and E.M. children in need of care in April
2014. They were immediately placed in State custody and were formally adjudged in
need of care in August 2014. At the time of the adjudication, E.M. was 7 years old and
A.M. was 3 years old. B.C. also had physical custody of A.C., their half-sister.[1]

[1]The proceedings involving A.M. and E.M. were immediately consolidated.
A.C. was not named as a child in need of care in this case. The record, therefore, is
sketchy about her status and whereabouts. We may reasonably infer B.C. no longer had
custody of A.C. as this case progressed. But anything more about A.C.'s legal situation
would be speculation.

B.C. and the three children apparently were staying with his mother in 2013.
B.C.'s 14-year-old half-brother D.P. also lived there. D.P. sexually assaulted E.M.,
prompting a State investigation and the entry of an order prohibiting D.P. from having
any contact with the children. B.C. moved in with his then-girlfriend, taking E.M. and
A.C. with him. A.M. apparently resided with B.C. some of the time and with her paternal
grandmother some of the time, in violation of the no-contact order. In addition, B.C. took
the girls to a party at their grandmother's house on St. Patrick's Day purportedly while
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D.P. was there, which also would have violated the no-contact order. State authorities
became aware of those circumstances, prompting the filing of the petitions in this case
and the removal of A.M. and E.M. from B.C.'s custody. B.C. has consistently disputed
that D.P. was present at the party. In its memorandum decision terminating B.C.'s rights,
the district court made no findings regarding the specific violations of the no-contact
order. During the termination hearing, everyone acknowledged that D.P. sexually abused
E.M. and had admitted doing so.

In August 2014, the district court put in place a reintegration plan and extended
the plan several times. Over the course of the proceedings, B.C. had three case managers
overseeing the reintegration efforts. A.M. and E.M. lived together in a foster placement
and regularly attended therapy sessions with a licensed clinical social worker. B.C. held
fulltime employment in semiskilled, hourly wage positions throughout the case. He
switched employers to take a job with a schedule more conducive to parenting the girls
by freeing more of his time before and after school.

Finding housing conforming to the reintegration plan proved particularly
challenging for B.C. Initially, he leased a 2-bedroom apartment with the expectation
A.M. and E.M. would share a bedroom, A.C. would take the second bedroom, and he
would sleep on a sofa in the living room. The assigned case manager approved the
arrangement. During that time, B.C. had supervised and unsupervised visits with A.M.
and E.M. that appeared to be going well. The case manager anticipated B.C. would soon
be allowed fulltime physical custody of the girls, subject to continued monitoring under
the reintegration plan.

In the meantime, the foster placement reported that E.M. had touched A.M. in a
sexually inappropriate way at least twice. Those incidents occurred at the foster
placement's home. The social worker addressed the issue with the children during their
therapy sessions. And the case manager informed B.C. he would need to get a 3-bedroom
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residence because the girls could not share a bedroom. B.C. leased a suitable apartment in
Johnson County, but the cost wound up straining his income. He moved out after about 5
months, breaking the lease in what amounted to an eviction. With depleted finances and a
spotty record as a tenant—he had been evicted from another apartment years earlier—
B.C. had a difficult time finding another place. He lived with either of two friends or with
his mother as he saved money to rent acceptable housing.

At the termination hearing, B.C. testified that he had put a deposit down on a
mobile home in rural Johnson County only to decide it was too rundown for the children.
Later, a landlord was willing to rent him a house in Wyandotte County, but B.C.
considered the neighborhood to be bad, so he lost an initial deposit. The weekend before
the termination hearing, B.C. signed a lease for a 3-bedroom apartment in Leavenworth
County, close to where A.M. and E.M attended school. His assigned caseworker,
however, had not been able to inspect the apartment to determine its suitability.

During that same period, B.C.'s contact with A.M and E.M. was curtailed and,
then, at the request of the social worker, cut off. After an unsupervised visit, the girls
reported to the foster placement that B.C. and his mother (their grandmother) had argued
loudly with each other. The reason for the argument was subject to conflicting evidence,
but the children were indisputably upset by the confrontation. The case manager told B.C.
that his mother could no longer participate in visits with A.M. and E.M. without specific
approval. Not long after, B.C.'s mother briefly joined him and the children at an ice
cream parlor. After learning of that unapproved visit, the case manager cancelled further
unsupervised visitation between B.C. and his daughters. So B.C. had to meet with A.M.
and E.M. in a designated room at the case manager's office. Those visits were often a
struggle with the girls running up and down the hallways in the building, yelling,
throwing toys, and otherwise acting out. According to the case manager, B.C. was unable
to effectively rein in and redirect his daughters' unruly behavior. The unruliness often
spilled over to adversely affect the girls' behavior at school the day after the visits. The
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social worker ultimately recommended all visitation between B.C. and his daughters
cease. So B.C. had no contact with the children for about 2 months leading up to the
termination hearing in April 2016.

A.M. and E.M. sometimes acted out at the home of their foster placement,
although those episodes decreased over time. The evidence indicated the girls liked their
father and looked forward to seeing him. Their foster placement testified at the
termination hearing that E.M. often inquired about when she would next see her father or
mother and occasionally asked, "When am I going home?" E.M. also expressed
uneasiness about where she would wind up living on a permanent basis, according to the
foster placement. A.M., the younger child, did not voice similar questions or concerns.

District Court's Decision to Terminate B.C.'s Parental Rights

In its memorandum decision, the district court cited three statutory grounds in
finding B.C. to be an unfit parent: Failure of reasonable efforts to rehabilitate the family,
K.S.A. 2016 Supp. 38-2269(b)(7); B.C.'s "lack of effort" to adjust his circumstances to
meet the children's needs, K.S.A. 2016 Supp. 38-2269(b)(8); and failure to carry out a
reintegration plan, K.S.A. 2016 Supp. 38-2269(c)(3). As we indicated, the governing
statute provides a smorgasbord of factors establishing unfitness. Those the district court
cited overlap insofar as they deal with the comparative failure of resuscitative efforts
rather than with a deleterious aspect of the parent's status or behavior predating judicial
intervention, e.g., serious mental instability, chronic drug abuse, or continuing neglect or
mistreatment of the child. The district court essentially relied on the same constellation of
facts to support each of those statutory grounds. That is, the district court recycled its
rendition of the record evidence to support unfitness on multiple statutory bases, resulting
in a legal redundancy resting on a single set of factual determinations. So each of the
legal reasons rises or falls on the same evidence. What the district court outlined in its
memorandum decision fails as a factual predicate for the legal conclusion of unfitness,
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especially given the heightened evidentiary standard for terminating parental rights. We
now review those shortcomings and ultimately conclude that a reasonable factfinder
could not say the evidence demonstrates "a high probability" that B.C. was an unfit
parent.

The district court repeatedly characterized B.C. as "homeless" and found any
likely change in that circumstance to be "unknown." That, however, amounts to a
material mischaracterization of the evidence. Although B.C. went for nearly a year
without a residence meeting the requirements for regaining custody of A.M. and E.M., he
was never homeless in any common understanding of the term. Homelessness implies the
lack of a permanent and conventional place to live—surviving on the street, in a car, or at
a shelter. B.C. was always gainfully employed and shared a residence with others. He
was, in a word, a roommate. Being a roommate, however, would not accomplish family
reintegration, something B.C. plainly recognized and worked to fix. He repeatedly
endeavored to rent suitable housing with only limited success. But at the time of the
termination hearing, B.C. had leased a 3-bedroom residence. The case manager could
have promptly inspected the premises, an assessment that would not have substantially
delayed the case. The district court misapprehended the record evidence and erred in
basing B.C.'s purported unfitness on inadequate living arrangements that were unlikely to
change in the foreseeable future.

In its memorandum decision, the district court repeatedly castigated B.C. for
failing to contact the social worker after she recommended terminating all visitation with
A.M. and E.M. The district court seemed to view that failure as reflecting a lack of
genuine desire on B.C.'s part to parent his daughters. But the conclusion is wholly
unwarranted. B.C. was never integrated into the therapy sessions the social worker had
with A.M. and E.M. He was not invited to participate in them and did not. The social
worker did not communicate with B.C. about those sessions or particular issues A.M. or
E.M. might be dealing with. Rather, the social worker reported to the case manager. So
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B.C. would have stepped out of the established bureaucratic pattern to communicate
directly with the social worker. And B.C. testified that he feared communicating with the
social worker could have been treated as impermissible criticism or undue meddling on
his part. The fear wasn't entirely without a foundation. B.C. lost unsupervised visitation
with the children because his mother had ice cream with them after he was warned she no
longer should participate in the visits. That was a lapse of judgment on B.C.'s part to be
sure, and its repercussions reasonably could have imparted a message that he should not
step across any lines without permission. B.C. also testified he had no contact
information for the social worker as a reason he did not get in touch with her—a less
persuasive rationale for his inaction.

The district court's reasoning in treating that inaction as compelling evidence that
B.C. lacked a genuine desire or enthusiasm for parenting his children seems exceptionally
thin. B.C. originally took custody of the children after their mother effectively withdrew
from them. After this case was filed, he switched jobs to accommodate the girls' school
schedule and worked at finding a suitable residence, albeit with less than stellar results.
The evidence indicates B.C. completed the other tasks outlined in the reintegration plan,
including a series of parenting classes. The district court dismissively discounted those
efforts as merely "checking off boxes," apparently imposing some additional—and
hidden—standard for true success. Moreover, B.C. could have voluntarily relinquished
his parental rights at any step in this process. But he hasn't. The district court essentially
fixated on an isolated instance of inaction on B.C.'s part, at best only loosely tied to
anything directly pertinent to his parenting, to support a conclusion at odds with the bulk
of the relevant evidence.

The district court also justified its unfitness determination based on what it
considered B.C.'s failure to appreciate E.M.'s particular needs as a sexual assault victim
and his inability to articulate and apply appropriate parenting skills, as reflected in the
girls' unruly behavior. Under questioning from the assistant district attorney during the
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termination hearing, B.C. testified that he understood E.M. required her own bedroom
because of her age and her need for privacy. Likewise, during that questioning, B.C. was
unable to parrot any specific parenting techniques from the classes he had taken. The
district court found those to be unacceptable answers displaying a lack of "insight" and an
inability "to understand the seriousness and significance of what happened to and
between his children." The hearing testimony does suggest B.C. initially had some
skepticism that D.P. had sexually abused E.M. But the record evidence shows that B.C.
concluded the abuse happened. The record, however, is less than clear that B.C. had ever
been informed that E.M. touched A.M. inappropriately during their foster placement.
Even if B.C. had been told, the district court's reaction to his testimony seems unduly
scathing and could be interpreted as evincing a degree of intellectual and social elitism.

Testifying in court can be a stressful, intimidating experience, especially for a
person unaccustomed to that environment or when the stakes are particularly high. Here,
B.C. was in precisely that kind of high-stakes situation, and he quite apparently lacked
honed oratorical skills. So B.C. understandably would have been less than expansive in
explaining himself or discussing the sexual abuse of his children. And it may be that B.C.
isn't a particularly incisive or reflective thinker or possessed of a well-developed sense of
empathy, just as the district court would have it. Those shortcomings would be less than
desirable in any parent, but a below average capacity to be contemplative or empathetic
does not render a parent legally unfit. The district court, however, appears to have
punished B.C. for falling short of its measure either for those traits or for fluency on the
witness stand.

The district court also considered the girls' behavior during the supervised visits in
terminating B.C.'s parental rights, essentially finding him unfit because he couldn't better
control them in that particular setting. Although the girl's was a legitimate matter of
concern, the evidence isn't nearly as decisive as the district court would portray it. By all
accounts, A.M. and E.M. did well during their visits with B.C. away from the case
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manager's office. There appear to have been no notable instances of unruly behavior
during the visits or negative spillover from those visits in school or elsewhere. The
problems arose only when the visits were confined to the room at the office. Although not
directly raised in the testimony, it appears the case manager was either unwilling to
intervene and model appropriate "redirection" techniques during those visits or attempted
to do so without success. Either way, that suggests B.C. shouldn't be held wholly and
singularly responsible for the problems. And the case manager didn't try moving the
visits elsewhere to see if a change in location might improve the girls' conduct.

During the termination hearing, nobody offered any explanation for the
deterioration of the girls' behavior in that environment. The social worker apparently
couldn't get at the cause and couldn't bring about an improvement in their behavior—
precisely the sort of issues that presumably ought to be addressed in therapy. By
recommending an end to all visitation, the social worker fell back on eliminating the
circumstance sparking the problem rather than resolving its underlying cause.

At the termination hearing, the social worker and B.C.'s two most recent case
managers testified in general terms about "safety" concerns associated with the girls'
behavior during the visits and the lack of successful redirection of their unruliness. The
opinion testimony was conclusory and lacked any real anchor in the factual
circumstances. Nor was it apparent that A.M. and E.M. would continue to act out in a
similar fashion if B.C. had extended physical custody of them in a different setting. In
short, the testimony was so generic as to be unpersuasive in demonstrating B.C. to be an
unfit parent to a clear and convincing standard.[2]

[2]The assistant district attorney representing the State at the termination hearing
never attempted to qualify the social worker or either case manager as an expert witness.
We suppose the social worker could have been so qualified based on what the record
reveals about her training and experience. It is less clear the case managers had the
requisite expertise. Each had only recently received an undergraduate degree in social
work, and neither recounted training from the social service agency employing them or
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previous work experience that would satisfy the standards for a testifying expert. K.S.A.
2016 Supp. 60-456(b) (expert must possess "specialized knowledge"); Ohlmeier v. Jones,
51 Kan. App. 2d 1014, 1019, 360 P.3d 447 (2015) (expert witness "must be skilled or
experienced in the profession" to which his or her testimony relates), rev. denied 305
Kan. ___ (December 15, 2016). But even an expert opinion must take account of and be
tied to the factual circumstances of the case in which it is offered. K.S.A. 2016 Supp. 60-
456(b)(3).

Conclusion

The evidence in this case fails to rise to the level that would persuade a reasonable
factfinder that, at the time of the termination hearing, B.C. clearly and convincingly was
unfit to parent A.M. and E.M. or that any arguable unfitness was unlikely to change in the
immediate future. B.C. may not have been the ideal parent for A.M. and E.M.,
particularly as a single head of the household. He might very well fall below average. But
as we have said, that is not the standard. B.C. was neither negligent nor malicious in his
parenting of A.M. and E.M. He had no pernicious conditions or characteristics that
rendered him statutorily unfit. He endeavored to comply with the reintegration plan and
largely did so, except for securing suitable housing in a timely fashion. But B.C.
apparently leased an appropriate residence just before the termination hearing, although
the district court broached no delay to verify his compliance. Examined as a whole, the
evidence cannot be said to have proved B.C. unfit within the meaning of K.S.A. 2016
Supp. 38-2269(a), taking account of both the required inability to parent and the duration
of that inability. We, therefore, reverse and remand for further proceedings.

We have set aside the finding of unfitness and, in turn, the termination order. A.M.
and E.M., however, remain children in need of care. Accordingly, the district court
should approve a new reintegration plan for B.C. The plan must fairly account for the
lapse of time associated with this appeal and the extended absence of any contact
between B.C. and his daughters—circumstances that almost certainly have made
reintegration more complex. Any such untoward consequences ought to be attributed to
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the judicial process. Accordingly, B.C. should not be disadvantaged in his renewed
reintegration efforts because of the time taken up in this error-correcting function the
appellate courts perform. We trust the district court will tailor a fair reintegration plan
and take a constructive approach to family reunification in this case on remand, including
some appropriate communication with E.M. and A.M. (whether through their guardian ad
litem, the assigned case manager, or a social worker involved in their care) explaining
B.C.'s continuing desire to regain custody of them and that his efforts had been
temporarily halted because of a mistake by the courts.

The district court's order terminating B.C.'s parental rights with respect to A.M.
and E.M. is reversed, and the case is remanded for further proceedings consistent with
this opinion.