In re I.R.

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NOT DESIGNATED FOR PUBLICATION

No. 120,999

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of I.R., a Minor Child.


MEMORANDUM OPINION

Appeal from Shawnee District Court; MARY E. CHRISTOPHER, judge. Opinion filed October 11,
2019. Affirmed.

Rachel L. Hockenbarger, of Topeka, for appellant natural mother.

Morgan L. Hall, deputy district attorney, and Michael F. Kagay, district attorney, for appellee.

Jennifer Martin Smith, of Alderson, Alderson, Conklin, Crow & Slinkard, L.L.C., of Topeka,
guardian ad litem.

Before STANDRIDGE, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: A.W. (Mother) appeals the district court's order terminating her
parental rights to her son, I.R. Mother challenges the sufficiency of the evidence to prove
she was an unfit parent or that her unfitness was unlikely to change in the foreseeable
future. Mother also contends it was not in I.R.'s best interest for the district court to
terminate her parental rights. However, the evidence reflects Mother failed to cooperate
with the agencies tasked to help her and to reintegrate the child back into Mother's home
upon Mother showing she had the ability to parent her child. The district court's decision
to terminate Mother's parental rights is supported by clear and convincing evidence and is
in I.R.'s best interest. Father is not a party to this appeal. We affirm.

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FACTUAL AND PROCEDURAL HISTORY

I.R. was born in February 2015. Mother is a member of the Prairie Band
Potawatomie Tribe, but Father's ancestry is unknown. After receiving a report about
potential drug use in the home—allegations further supported by the fact I.R.'s umbilical
cord tested positive for THC at birth—as well as domestic violence and mental health
concerns for Mother, the Kansas Department for Children and Families (DCF)
unsuccessfully sought to meet with Mother in April 2015 to obtain additional
information. Over the next month, DCF received reports of medical neglect. I.R. was
born prematurely and during delivery suffered a broken arm. DCF received reports I.R.
was not attending his medical appointments on a regular and consistent basis. There was
also a concern about the "questionable" living conditions of the home.

Additional attempts by DCF to contact Mother were largely unsuccessful. As a
result, the State filed a petition in May 2015 alleging I.R. was a child in need of care
(CINC) pursuant to K.S.A. 2014 Supp. 38-2202(d)(1), (d)(2), and (d)(3). The court
placed I.R. in DCF custody.

The district court held a temporary custody hearing and found the Indian Child
Welfare Act (ICWA) applied, ordering DCF to "make all possible efforts to place [I.R.]
with a [sic] Native American relative or Native American approved placement." The
court also ordered DCF to follow ICWA in regards to placement and visitation, and
ordered both parents to complete a urinalysis (UA) drug test. After the hearing, an ICWA
Notice was sent to the Prairie Band Potawatomie Nation (PBPN) along with a copy of the
CINC petition.

In July 2015, the district court reaffirmed DCF custody and approved an order of
informal supervision (OIS). In April 2016, the court extended the OIS for six months and
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ordered I.R. to remain in DCF custody but with out-of-home placement with maternal
grandmother (Grandmother). In July 2016, the court revoked the OIS.

I.R. was adjudicated as a CINC based on no contest stipulations entered by Mother
and Father in October and November 2016. The court ordered I.R. to remain in DCF
custody and entered a dual case plan goal of reintegration or adoption.

At a permanency hearing in March 2017, the district court found appropriate
public or private agencies had made reasonable efforts to reintegrate I.R. into the home of
his parents, but the parents had not made adequate progress. The court found
reintegration continued to be a viable goal for the parents to work on.

In June 2017, the State filed a notice of ICWA determination from the PBPN
stating I.R. was not eligible for membership.

The State moved to terminate the parental rights of Mother and Father in June
2017, and served Mother with a copy of the motion at a review hearing on June 26, 2017.
The motion asserted presumptions for unfitness pursuant to K.S.A. 2016 Supp. 38-
2271(a)(5) and (a)(6) and alleged Mother and Father were unfit because of:

"(1) [F]ailure of reasonable efforts by agencies to rehabilitate the family [K.S.A.
38-2269(b)(7)]
"(2) [L]ack of effort on the part of parents to adjust their circumstances, conduct
or condition to meet the needs of the child [K.S.A. 38-2269(b)(8)]
"(3) [F]ailure to assure care of the child in the parental home when able to do so
[K.S.A. 38-2269(c)(1)]
"(4) Failure to maintain regular visitation, contact or communication with the
child or with the custodian of the child [K.S.A. 38-2269(c)(2)]; and

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"(5) [F]ailure to carry out a reasonable plan approved by the court directed
toward the integration of the child into the parental home [38-2269(c)(3)]."

At a review hearing in August 2017, Mother asserted membership in the
Kickapoo, Sac and Fox, Winnebago, and Pueblo tribes. The court found good cause to
continue the hearing in order to receive ICWA eligibility determinations from those
tribes. The State later received notices from the tribes identified by Mother that I.R. was
not eligible for membership.

At a review hearing in January 2018, the district court determined ICWA did not
apply. The court also found despite reasonable efforts by the appropriate public or private
agencies, reintegration with Mother was no longer a viable goal. The court determined
adoption would be in I.R.'s best interests. The court also terminated Father's rights for
being in default. On appeal, Mother makes no argument that ICWA applies in this case,
so we do not discuss the point further.

The district court conducted a trial on the motion for termination on April 24,
2018. At the trial, caseworkers testified:

• Mother was at first cooperative but had "significant reservations about
working with any agency."
• Mother had unsupervised visits near the beginning of the case but
eventually those visits became supervised and then stopped occurring
officially because Mother was difficult to contact. Mother did not have an
active phone number or a listed address, and she often missed scheduled
meetings with caseworkers.
• Mother struggled with housing at first but found a home near Grandmother
at some point. After the summer or early fall of 2016, KVC could not
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determine whether Mother had adequate housing because they did not have
a verifiable address on file.
• Drug use could not be ruled out as a concern because Mother refused to
take UAs and hair follicle tests, citing "cultural beliefs." However, PBPN
representatives told caseworkers the tribe provided drug and alcohol
services and testing and there was no cultural reason not to allow UAs and
other types of drug testing; all Mother had to do was sign a release to allow
the PBPN representatives to send the testing results to KVC.
• Mother initially received mental health services from PBPN but those
services discontinued at some point. KVC never received a release to
discuss any other information regarding Mother's involvement in mental
health and domestic abuse services with the tribe.
• At a meeting with Mother, Grandmother, and agency representatives about
a month before trial, the caseworkers tried to "turn around" the case to get
Mother back on track towards reintegration. PBPN representatives were
also invited to attend but did not attend. Mother became upset and refused
to cooperate at the meeting. Mother claimed ICWA applied and she would
see everyone in court.

Mother testified she:

• Met with counselors from tribal services for domestic violence concerns
with Father and they did not recommend additional counseling. She refused
to sign any releases for her counseling sessions.
• Lived in three homes during the case and KVC was only aware of the first
address because she "[did not] trust KVC."
• Had several sources of income, including per capita payments from PBPN,
a settlement, and Social Security disability payments. Mother did not
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provide specific numbers for her income but agreed her income was
adequate to meet I.R.'s needs.
• Refused to provide her hair for drug tests for religious reasons but had
completed UAs while on probation in another case.

After hearing the evidence, the district court found the evidence showed Mother
refused to cooperate with KVC throughout the life of the case, and she refused to provide
necessary documentation to confirm she had completed her case plan tasks.

At the conclusion of the termination hearing, Mother agreed to submit to a UA at
the court's request and complete a limited release for her mental health records. Next, the
court admonished Mother to complete her remaining case plan tasks and ordered her to
provide proof of their completion within 30 days. Finally, the court advised Mother her
failure to fulfill this order would lead to termination of her parental rights.

On May 25, 2018, Mother submitted a packet of documents to the district court,
containing:

"a. A 4-page letter to the Court;
"b. Letter from the Social [S]ecurity Administration advising that Mother's
primary disability diagnosis is a personality disorder with a secondary diagnosis of
affective/mood disorders;
"c. A letter from the local SSA office indicating Mother received $2,701.51 in
SSI benefits from January to May 2018, and stating the amount would be $0.00
beginning June 2018;
"d. Negative UA drug screen performed on the day of trial, April 24, 2018;
"e. Installment agreement made by [Grandmother purchasing a home in]
Topeka, Kansas.
"f. March 6, 2018 letter from Mother's attorney to PBPN language department,
requesting someone listen to [I.R.]'s speech to determine if he was speaking
'Pottawatomie' when not speaking English;
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"g. Copies of documents previously produced reflecting Mother's genealogy and
enrollment in the PBPN;
"h. Certificate of completion indicating mother completed a 4-hour parent
education and family stabilization course."

Mother's counsel also filed a notice of provision of documents along with two
documents which Mother believed "address[ed] her remaining tasks." The attached
documents were: a copy of a letter from the PBPN Tribal Victim Services program as
"proof of domestic violence counseling with the Tribe," and a copy of Mother's Topeka
Metro bus pass as "proof of transportation."

In October 2018, after receiving Mother's packet of documents, the district court
issued a memorandum decision terminating Mother's parental rights. The court found by
clear and convincing evidence Mother was statutorily unfit as a parent because she was
"unable/unwilling to complete case plan tasks necessary for reintegration; Mother has a
history of criminal activity; and Mother has chronically failed to cooperate with agency
workers attempting to provide assistance." The court determined Mother was "unfit by
reasons of conduct or condition which renders [Mother] unable to properly care for [I.R.],
pursuant to K.S.A. 2018 Supp. 38-2269(b)(7); (b)(8); (c)(1); (c)(2); (c)(3); and K.S.A.
2018 Supp. 38-2271(a)(5) and (a)(6)."

Similarly, the court held by "clear and convincing [evidence] that, due to the
duration of Mother's unfitness, and the chronic nature of shortcomings in spite of the
numerous public and private services offered her, Mother's conduct or condition is
unlikely to change in the foreseeable future."

Finally, the court determined after "[c]onsidering the physical, mental and
emotional health of [I.R.], termination of Mother's parental rights is in the best interest of
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[I.R.], and [his] physical, mental or emotional needs . . . would best be served by
termination of parental rights."

ANALYSIS

Mother now raises two issues on appeal: (1) there was insufficient evidence to find
she was unfit as a parent and her conduct or condition rendering her unfit was unlikely to
change in the foreseeable future; and (2) the district court abused its discretion in
determining termination of her parental rights was in I.R.'s best interests.

Standard of Review

A parent has a constitutionally recognized right to a parental relationship with his
or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 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) (citing Santosky,
455 U.S. at 758-59). Accordingly, the State may terminate parental rights for a child only
upon clear and convincing proof of parental unfitness. K.S.A. 2018 Supp. 38-2269(a);
Santosky, 455 U.S. at 769-70; In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903
(2014).

As provided in K.S.A. 2018 Supp. 38-2269(a), the district court must find by clear
and convincing evidence the parent is unfit "by reason of conduct or condition" making
him or her "unable to care properly for a child" and the circumstances are "unlikely to
change in the foreseeable future." When we review a district court's termination of
parental rights, we view all the evidence in the light most favorable to the State to
determine whether a rational fact-finder could have found it highly probable by clear and
convincing evidence parental rights should be terminated. In re K.W., 45 Kan. App. 2d
353, 354, 246 P.3d 1021 (2011). In making this determination, we will not weigh
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conflicting evidence, pass on the credibility of witnesses, or redetermine questions of
fact. In re B.D.-Y., 286 Kan. at 705.

The statute contains a nonexclusive list of nine factors to consider individually or
in combination to support a parent's unfitness. See K.S.A. 2018 Supp. 38-2269(b). The
statute also lists four other factors to be considered if a parent no longer has physical
custody of a child. See K.S.A. 2018 Supp. 38-2269(c). Any one of these factors may, but
does not necessarily, establish grounds for termination of parental rights. See K.S.A.
2018 Supp. 38-2269(f). In addition, the court may rely on one or more of the statutory
presumptions set out in K.S.A. 2018 Supp. 38-2271(a) to find a parent unfit.

Parental fitness

The district court found Mother to be unfit as a parent on the following statutory
grounds:

• "[F]ailure of reasonable efforts made by appropriate public or private agencies to
rehabilitate the family" under K.S.A. 2018 Supp. 38-2269(b)(7);
• "[L]ack of effort on the part of the parent to adjust the parent's circumstances,
conduct or conditions to meet the needs of the child" under K.S.A. 2018 Supp.
38-2269(b)(8);
• "[F]ailure to assure care of the child in the parental home when able to do so"
under K.S.A. 2018 Supp. 38-2269(c)(1);
• "[F]ailure to maintain regular visitation, contact or communication with the child
or with the custodian of the child" under K.S.A. 2018 Supp. 38-2269(c)(2); and
• "[F]ailure to carry out a reasonable plan approved by the court directed toward the
integration of the child into a parental home" under K.S.A. 2018 Supp. 38-
2269(c)(3).

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Mother contends the district court erred by finding her unfit, disputing each of the
five statutory grounds the court relied on and addressing each statutory provision
separately. The State and I.R.'s guardian ad litem (GAL) both focus their arguments on
Mother's refusal to cooperate with KVC in completing the case plan tasks.

a. Mother was unfit

Although Mother individually addresses each statutory ground of unfitness cited
by the district court, her arguments on each ground are similar because she contends the
"agency's demands" that she adhere to the case plan or provide documentation to verify
her progress were unreasonable given her religious/cultural beliefs and her distrust of the
caseworkers. Mother seems to be suggesting—but provides no relevant legal authority to
support—the district court should have focused solely on whether I.R.'s needs were being
met. We are not persuaded the district court erred by finding the evidence reflects
Mother's consistent refusal to cooperate with the caseworkers rendered her unfit as a
parent.

Both the State and the GAL assert the agency's attempts at reasonable efforts to
rehabilitate the family were thwarted by Mother's constant refusal to participate in the
case plan. We note other panels of this court have stated the purpose of K.S.A. 38-
2269(b)(7) is to provide a parent with the opportunity to succeed, but the parent must still
exert some effort and cannot refuse to cooperate with the agencies. See In re L.C.P., No.
118,841, 2018 WL 4039170, at *9 (Kan. App. 2018) (unpublished opinion), rev. denied
309 Kan. 1348 (2018). Mother provides no authority to dispute this point.

Mother contends the State failed to show by clear and convincing evidence she did
not successfully complete the case plan tasks. She also claims several of the case plan
goals were irrelevant to I.R.'s care, specifically those requiring Mother to (1) address "co-
sleeping" with I.R.; (2) complete a culturally sensitive parenting assessment, if necessary;
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and (3) work with her attorney to create a custody arrangement with Father, whose
parental rights were terminated in January 2018. We agree these three points are not as
relevant now as they were at the beginning of the case plan, but that does not excuse
Mother from complying with the other requirements in the case plan.

However, our review of the record reveals sufficient evidence Mother did not
complete or provide proof she completed most of the case plan tasks directed at
reintegration. The only case plan task all parties agree Mother completed was to obtain
and maintain a transportation plan when she provided a copy of her city bus pass.

Consistent with the district court's findings, the record shows Mother refused to
sign releases relating to domestic violence services and mental health treatment through
PBPN. Mother also provided no documentation to show she had safe and stable housing,
and she admitted she refused to give her current address to caseworkers. As to income,
Mother testified she received a per capita payment from PBPN, SSI disability payments,
and a legal settlement, but she provided no documentation to show the total amount of
her monthly income. The documents provided showed Mother's current SSI income
would no longer be received after June 2018.

Mother also asserts the State presented no evidence to show substance abuse or
mental health contributed to her being unfit as a parent. But as the State notes, the motion
for termination did not include those factors as statutory grounds for unfitness, but the
case plan required Mother to submit to random UAs and to address mental health
concerns that arose from the allegations in the CINC petition. Mother consistently
refused to complete UAs because of her claimed religious or cultural beliefs. However,
caseworkers testified tribal representatives cited no cultural concerns with completing
UAs, and the tribe even offered resources to help Mother comply with the court order.
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Even after PBPN's offer, Mother failed to contact anyone or sign a release to show she
had completed any UAs or engaged in mental health counseling to address her case plan
tasks.

The record contains clear and convincing evidence Mother failed to complete her
case plan, despite reasonable efforts by the relevant involved agencies to help her
comply. See K.S.A. 2018 Supp. 38-2269(b)(7), (c)(3).

b. Statutory presumptions of unfitness apply

But even if the State failed to establish these grounds of unfitness by clear and
convincing evidence, the district court still would not have erred because Mother failed to
rebut the presumptions of unfitness on which the district court relied.

Along with the five statutory grounds of unfitness discussed above, the district
court also found Mother was unfit as a parent based on two presumptions of unfitness
under K.S.A. 2018 Supp. 38-2271(a)(5) and (a)(6). Under these provisions, a parent will
be presumed unfit if the State establishes by clear and convincing evidence that either: (1)
the child has been in an out-of-home placement under court order for a cumulative total
period of at least one year and "the parent has substantially neglected or willfully refused
to carry out" a reasonable court approved parenting plan; or (2) the child has been in an
out-of-home placement under court order for a cumulative total period of at least two
years and "the parent has failed to carry out" a reasonable court approved parenting plan
and there exists a "substantial probability that the parent will not carry out such plan in
the near future." K.S.A. 2018 Supp. 38-2271(a)(5) and (a)(6). If either presumption
applies, "[t]he burden of proof is on the parent to rebut the presumption of unfitness by a
preponderance of the evidence" K.S.A. 2018 Supp. 38-2271(b).

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To support its determination these presumptions applied, the district court cited
Mother's inability or unwillingness to complete case plan tasks necessary for
reintegration; her chronic failure to cooperate with agency workers attempting to provide
assistance; and her refusal to provide requested information or cooperate with the agency.
The record shows I.R. was in out-of-home placement for at least 35 months at the time of
the termination trial and he was about 37 months old.

i. Mother abandoned this issue

Mother claims the presumption should not be applied because the delay in the case
should not be attributed to her failure to make any progress but rather to the length of
time it took for the court to make an ICWA determination. Mother's argument is
unpersuasive because Mother still failed to participate in the case plan even during the
time it took to determine if ICWA applied. And as discussed earlier, Mother abandoned
any challenge to the court's ICWA determinations because she failed to brief the issue.

Put another way, Mother fails to brief whether the district court erred by finding
clear and convincing evidence reflected she had "substantially neglected or willfully
refused to carry out" a reasonable court approved parenting plan after more than a year of
out-of-home placement; or that she had "failed to carry out" a reasonable court approved
plan after more than two years of out-of-home placement and there was a "substantial
probability" she would not do so in the near future. See K.S.A. 2018 Supp. 38-2271(a)(5)
and (a)(6). As a result, Mother has abandoned this issue. See Russell v. May, 306 Kan.
1058, 1089, 400 P.3d 647 (2017) (point raised incidentally in a brief and not argued
therein deemed abandoned).


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ii. Mother fails to rebut the presumptions

Even if Mother had argued this issue in her brief, the district court did not err
because the State presented sufficient evidence to support these presumptions and Mother
did not successfully rebut either presumption below. The record shows Mother repeatedly
refused to provide necessary information or releases to help the agencies monitor her
progress and determine if she was complying with the case plan. The record reflects
Mother told caseworkers "ICWA applied" and she would "see [them] in court." Finally,
Mother did submit additional documents after the trial, as ordered by the court, but the
documents provided were a rehash of her previous claims and failed to show she had
complied with the court approved reintegration plan.

Unlikely to change in the foreseeable future

Clear and convincing evidence must also support the district court's finding the
conduct or condition rendering Mother unfit is unlikely to change in the foreseeable
future. K.S.A. 2018 Supp. 38-2269(a). In gauging the foreseeable future, we use "child
time" as the measure. As recognized by K.S.A. 2018 Supp. 38-2201 et seq., children
experience the passage of time in a way that makes a month or a year seem considerably
longer than it would for an adult, and that difference in perception typically tilts toward a
prompt, permanent disposition. K.S.A. 2018 Supp. 38-2201(b)(4); In re M.B., 39 Kan.
App. 2d 31, 45, 176 P.3d 977 (2008); In re J.S., No. 120,193, 2019 WL 1967952, at *4
(Kan. App. 2019) (unpublished opinion) (citing In re G.A.Y., No. 109,605, 2013 WL
5507639, at *1 [Kan. App. 2013] [unpublished opinion] ["'child time'" differs from
"'adult time'" in care proceedings "in the sense that a year . . . reflects a much longer
portion of a minor's life than an adult's"]), petition for rev. filed May 29, 2019.

A review of the evidence shows at the time of the termination trial, I.R. was 37
months old and had spent 35 months in DCF custody. The record reflects Mother either
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refused to cooperate with the caseworkers or failed to adjust her circumstances to address
the concerns in the case plan—her mental health, domestic violence, drug use, and
housing. A rational fact-finder could have found it highly probable by clear and
convincing evidence Mother's refusal to cooperate would continue in the foreseeable
future. Thus, the district court's finding Mother's conditions of unfitness were unlikely to
change in the immediate or foreseeable future was supported by clear and convincing
evidence.

Best interests finding

Upon making a finding of unfitness of the parent, the district court must consider
whether "termination of parental rights . . . is in the best interests of the child." K.S.A.
2018 Supp. 38-2269(g)(1). In making such a decision, the court gives primary
consideration to the physical, mental, and emotional needs of the child. K.S.A. 2018
Supp. 38-2269(g)(1). The district court makes that determination based on a
preponderance of the evidence. See In re R.S., 50 Kan. App. 2d at 1116. The best
interests issue is essentially entrusted to the district court acting within its sound judicial
discretion. 50 Kan. App. 2d at 1115-16.

We review a court's best interests determination for an abuse of discretion. An
abuse of discretion

"occurs when no reasonable person would agree with the district court or the district
court premises its decision on a factual or legal error. In determining whether the district
court has made a factual error, we review any additional factual findings made in the
best-interests determination to see that substantial evidence supports them. [Citation
omitted.]" In re R.S., 50 Kan. App. 2d at 1116.

Here, the district court did not make extensive findings, concluding only after
"[c]onsidering the physical, mental and emotional health of the child, termination of
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Mother's parental rights is in the best interest of [I.R.], and the physical, mental or
emotional needs of the child would best be served by termination of parental rights."

Mother cites In re J.W., No. 112,668, 2015 WL 8590309 (Kan. App. 2015)
(unpublished opinion), as support for her argument termination was not in I.R.'s best
interests. In In re J.W., a panel of this court found an abuse of discretion because the
district court improperly analyzed the mother's shortcomings as a primary consideration
when making the best interests finding. 2015 WL 8590309, at *13-14. This case is
distinguishable because here the district court explicitly noted it had considered the
"physical, mental and emotional health of the child."

Mother also argues the district court should have conducted a "'balancing test'"
when making the best interests determination, citing In re L.B., 42 Kan. App. 2d 837,
841-42, 217 P.3d 1004 (2009). However, as the State correctly acknowledges, another
panel of this court recently held Mother's argument misstates the holding in In re L.B.
(citing In re R.G., No. 120,300, 2019 WL 2063611, at *7 [Kan. App. 2019] [unpublished
opinion]). The panel in In re L.B. specifically considered whether a mother could
untimely appeal a temporary placement order and the CINC finding along with the
termination of her parental rights. See 42 Kan. App. 2d at 842-43. Mother makes the
same argument as the mother in In re R.G., asserting the district court needed to balance
her fundamental right to parent her child along with the interests of the State in protecting
children. This argument is not persuasive for precisely the same reason because a
previous panel concluded: "In re L.B. does not impose a rigid requirement for courts to
perform an overt, on-the-record 'balancing test' to determine a child's best interests." In re
R.G., 2019 WL 2063611, at *7.

For these reasons, we find there was clear and convincing evidence to support the
district court's decision to terminate Mother's parental rights, and a reasonable person
would agree with the district court's conclusion termination was in the best interests of
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the child. We find no abuse of discretion in the district court's finding termination was in
I.R.'s best interests.

Affirmed.