In re L.R.

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NOT DESIGNATED FOR PUBLICATION

Nos. 120,618
120,619


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of L.R. and C.R., Minor Children.


MEMORANDUM OPINION

Appeal from Comanche District Court; SIDNEY R. THOMAS, judge. Opinion filed August 9, 2019.
Affirmed.

Robert W. Slinkard, of Goering and Slinkard, of Medicine Lodge, for appellant natural mother.

Allison D. Kuhns, county attorney, and Charles H. Herd, guardian ad litem, for appellee.

Before ATCHESON, P.J., HILL and BUSER, JJ.

PER CURIAM: Mother appeals the order of the Comanche County District Court
terminating her right to parent C.R., her eight-year-old daughter, and L.R., her six-year-
old son, and contends insufficient evidence supports that determination. The evidence
shows that Father repeatedly sexually abused C.R., likely physically abused L.R., and
terrorized the family. Mother appears to have been cognizant of the abuse and failed to
shield the children causing deep emotional rifts with L.R. and especially with C.R. Under
the circumstances, the district court ruled correctly in severing the legal relationship
between Mother and her children. We, therefore, affirm.


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FACTUAL AND PROCEDURAL PROGRESSION

The underlying facts were thoroughly presented during the termination
proceedings and are part of the appellate record. The parties are familiar with the details.
Given the nature of the evidence, we see no need to recount the sordid particulars here.
The evidence showed Father sexually assaulted C.R. multiple times. He has since been
criminally prosecuted for and pleaded guilty to aggravated indecent liberties with a child
based on his abuse of C.R. Father was sent to prison for that conviction. And he
voluntarily relinquished his parental rights with respect to both children in these
proceedings.

The dire family circumstances began to unfold in January 2016 when C.R. acted
out in a sexually explicit manner on a school bus. School officials reported the incident to
State authorities, prompting the Department for Children and Families to investigate. A
home inspection revealed unsanitary conditions and other indicators of parental neglect
of the children. L.R. had untreated bites or sores. His bedroom contained cat feces and
had an exterior lock on the door. The State immediately sought and obtained an order for
temporary custody of both children.

C.R. described Father's sexual abuse of her to law enforcement officers and
forensic investigators. According to C.R., Mother witnessed some of that abuse and
discouraged any disclosure of Father's misconduct. The investigation moved forward on
parallel paths—one probe based on Father's criminal conduct and the other based on
Mother's and Father's unfitness to parent C.R. and L.R. The district court adjudicated the
children in need of care without objection from either Mother or Father, and they
remained in State custody.

The guardian ad litem for the children filed a motion to terminate Mother's and
Father's parental rights to C.R. in December 2017 and a like motion as to L.R. in January
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2018. After Father voluntarily relinquished his rights, the district court heard three days
of evidence in June 2018 regarding the termination of Mother's rights. The district court
filed a 20-page journal entry and order about a month later finding Mother to be unfit and
terminating her right to parent C.R. and L.R. The district court identified 10 statutory
grounds supporting Mother's unfitness. The district court found the circumstances were
unlikely to change in the foreseeable future and the children's best interests were served
by terminating Mother's parental rights.

Without attempting to survey all of the evidence presented during the termination
proceeding, we mention some particularly salient portions of the record.

• C.R. described to law enforcement and forensic investigators a pattern of sexual
abuse in which Father repeatedly physically violated her. C.R. told the investigators
Mother witnessed some of the abuse and was aware of other incidents. According to
C.R., Mother did nothing to stop the abuse and actively dissuaded her from telling
anyone about what was happening. As we have said, Father admitted the sexual abuse of
C.R. as part of his guilty plea in the criminal case against him.

• During the investigation, Mother tried to conceal Father's cell phone and other
electronic devices that turned out to contain incriminating evidence.

• Some circumstantial evidence indicated L.R. may have been sexually or
otherwise physically abused. He was developmentally delayed when placed in foster care
and displayed self-harming behaviors. The record evidence shows Father verbally and
physically threatened and humiliated both children.

• As part of the family reintegration plan for Mother, the assigned social service
agency arranged supervised visits with both C.R. and L.R. C.R. reported feeling unsafe in
Mother's home—the same place where she had been abused. After the visits, C.R.'s
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behavior would regress, and she would act out at school and at her foster placement.
C.R.'s therapist concluded the visits were doing C.R. more emotional harm than good and
recommended no more visitation. L.R. reacted similarly to the visits with Mother, and his
therapist also suggested visitation was counterproductive and should be ended. The social
service agency acted on those recommendations and stopped Mother's visits in 2017.

• Mother has a history of alcohol and drug abuse. That history includes arrests for
driving under the influence when the children were with her. Mother completed a
substance abuse program in early 2017 but had relapsed at least once since then.

• Mother testified at the termination hearing that she has been doing better since
leaving Father and completing the substance abuse program. She testified that she did not
have a job but had submitted numerous applications. Mother explained her job search
was geographically limited because of lack of transportation. In the past, she said she
worked intermittently at her stepfather's tree trimming service and did other day labor.
Mother's half-brother and her mother also testified that she seemed to be much improved
in recent months after breaking up with Father and getting treatment for her substance
abuse. Mother has two older children who are half-siblings of C.R. and L.R. Their father
testified that Mother often supervises the children during the week and interacts well with
them. He testified he had no concerns about Mother's present ability to successfully
parent children. Mother continues to live in the home where Father abused C.R. and L.R.
Her mother owns the house and has permitted her to stay there.

Mother has timely appealed.


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LEGAL ANALYSIS

On appeal, Mother has identified three issues: (1) The district court lacked
sufficient evidence to find her unfit; (2) the district court erred in failing to consider a less
drastic alternative to termination, an argument that effectively combines challenges to the
findings on the unlikelihood her unfitness would change and the children's best interests;
and (3) the social service agency provided Mother inadequate support in attempting to
reintegrate the family. Before addressing those issues specifically, we outline pertinent
legal principles governing the termination of parental rights.

Legal Principles

A parent has a constitutionally recognized right to a continuing 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). The right entails a 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); Pierce v. Society of the 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"). Accordingly, the State may terminate a
parent's right to raise a minor 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).

After children have been adjudicated in need of care, as happened here, a district
court may terminate parental rights "when the court finds by clear and convincing
evidence that the parent is unfit by reason of conduct or condition which renders the
parent unable to care properly for a child and the conduct or condition is unlikely to
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change in the foreseeable future." K.S.A. 2018 Supp. 38-2269(a). The statute contains a
nonexclusive list of nine conditions that singularly or in combination would amount to
unfitness. K.S.A. 2018 Supp. 38-2269(b). And the statute lists four other conditions to be
considered if a parent no longer has physical custody of a child. K.S.A. 2018 Supp. 38-
2269(c).

The specific statutory factors are illustrative of parental "unfitness," but the Code
contains no formal definition of the term. The Kansas Supreme Court has surveyed cases
discussing unfitness in termination proceedings and suggests the condition rests on
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); In re Baby Girl E., No. 103,740, 2010 WL
4668356, at *4 (Kan. App. 2010) (unpublished opinion). A single statutory ground may
be sufficient to establish unfitness. See K.S.A. 2018 Supp. 38-2269(f).

In assessing the unlikelihood of change in the foreseeable future under K.S.A.
2018 Supp. 38-2269(a), we gauge the permissible duration using "child time" as the
measure. As the Code recognizes, 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 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").

When the sufficiency of the evidence supporting a district court's decision to
terminate parental rights is challenged, an appellate court will uphold the findings of
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unfitness and unlikelihood of change if, after reviewing the evidence in the record in a
light most favorable to the prevailing party, they are supported by clear and convincing
evidence. Stated another way, the appellate court must be persuaded that a rational fact-
finder could have found it highly probable that the circumstances justify unfitness and
unlikelihood of change as components of the termination of parental rights. In re B.D.-Y.,
286 Kan. at 705. In evaluating the record, the appellate court does not weigh conflicting
evidence, pass on the credibility of witnesses, or determine factual questions. In re
Adoption of B.B.M., 290 Kan. 236, 244, 224 P.3d 1168 (2010); In re M.H., 50 Kan. App.
2d 1162, 1170, 337 P.3d 711 (2014). Here, we must view the evidence presented at the
hearing in a light favoring the termination order, since the guardian ad litem prevailed on
the motions to terminate.

Mother's Unfitness

Under the Code, parents may be unfit because they cannot provide for the physical
well-being of their children. That sort of care includes adequate housing, food, and
clothing, along with the financial means to secure those tangible necessities. But parents
also may be unfit if they are incapable of nurturing the mental and emotional well-being
of their children. Those dual considerations of physical and emotional stability run
through the grounds for unfitness. See, e.g., K.S.A. 2018 Supp. 38-2269(b)(1)-(4), (g)(1).
So the sort of proper care contemplated in K.S.A. 2018 Supp. 38-2269(a) entails both.
See In re T.C., No. 112,619, 2015 WL 4758672, at *6 (Kan. App. 2015) (unpublished
opinion) (termination of parental rights affirmed where evidence, including expert
testimony from children's therapists, showed "further contact between Mother and the
children was going to be harmful to them, not helpful or nurturing").

Here, the evidence showed that Father terrorized the children over an extended
time. He unquestionably sexually abused C.R., likely physically abused L.R. in some
manner, and otherwise emotionally and psychologically assailed both of them repeatedly.
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There is no reason to mince words here. The evidence also showed Mother to be
complicit in Father's misconduct. She appears to have facilitated the abuse and certainly
did nothing to end it or otherwise shield the children. C.R. and L.R. understandably and
reasonably perceive Mother as having been complicit.

C.R. and L.R. have been traumatized by what they have been through. After the
State stepped in and removed them from that environment, their interactions with Mother,
as part of the plan designed to reintegrate the family, proved to be emotionally
destabilizing for them. Both children discernibly regressed and deleteriously acted out
following visits with Mother. Each child's therapist reported that the counterproductive
consequences of the visits far overshadowed any limited benefits. In short, the visits
weren't repairing the familial wreckage; they were accelerating the damage at the expense
of the children's emotional health. The assigned social service agency stopped the visits.
Neither therapist suggested a course of care leading to a resumption of visits, let alone
family reintegration. Mother offered no evidence of a viable therapeutic plan for
establishing some measure of emotional and psychological normalcy to her relationship
with either C.R. or L.R.

Tying those circumstances to the statutory treatment of unfitness, Mother's
conduct created a deep emotional and psychological fissure with her children that
persisted through the termination hearing. So much so that the children suffered
emotionally simply by being in Mother's presence for any measurable time. Visits
between Mother and C.R. and L.R. were harmful to the children. That circumstance—
whether it be labeled Mother's "conduct" or "condition"—rendered her "unable to care
properly" for the children within the meaning of K.S.A. 2018 Supp. 38-2269(a).

Likewise, Mother's conduct toward the children when they were living with Father
and the residual adverse psychological impact on the children was emotionally cruel or
abusive within the meaning of K.S.A. 2018 Supp. 38-2269(b)(2). And Mother's conduct
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amounted to "mental or emotional abuse or neglect" of the children within the meaning of
K.S.A. 2018 Supp. 38-2269(b)(4). In addition, the assigned social service agency
undertook reasonable efforts to rehabilitate the family that failed in that mission, a
statutory ground for parental unfitness under K.S.A. 2018 Supp. 38-2269(b)(7).

Although Mother completed some of the assigned tasks for reintegration and
otherwise made some improvements in her life, the catastrophic harm to the family had
not been substantially fixed more than two years after the State interceded. Even more to
the point, Mother's very presence with C.R. and L.R. remained a trigger perpetuating the
harm. Those statutory grounds, as the district court found, support the finding of
unfitness. The district court outlined other statutory grounds, as well. To go through each
of them would needlessly extend this opinion.

In sum, we conclude a reasonable fact-finder would have been persuaded to a high
degree of probability that Mother was unfit to parent C.R. and L.R. at the time of the
termination hearing. That means there was sufficient evidence of unfitness, disposing of
Mother's first issue on appeal.

Foreseeable Change and Children's Best Interests as Alternatives to Termination

As we have indicated, for her second issue on appeal Mother argues the district
court should have considered an alternative to termination. We take that to be a pitch for
continued efforts at reintegration and, therefore, an argument that Mother's unfitness
might be alleviated in the foreseeable future or that the children's best interests would not
have been served by termination.

As to the first aspect of the argument, nothing in the record suggested either C.R.
or L.R. would readily overcome his or her emotional aversion to being with Mother or
escape the physical manifestations of that aversion. The emotional and psychological
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damage had persisted for years, despite the children being in counseling and stable foster
placements. Nobody has offered a timetable for any likely, or even possible, change in
what remained a pernicious relationship viewed from the perspective of preserving the
children's mental and emotional equilibrium. Taking account of child time, the
comparatively young ages of C.R. and L.R., and the duration of their placements in State
custody, we also conclude a reasonable fact-finder would say it's highly probable
Mother's condition of unfitness would not likely change in the foreseeable future.

The other aspect of Mother's argument looks at the best interests of the children. A
child's best interests are assessed somewhat differently than unfitness or unlikelihood of
change. As directed by K.S.A. 2018 Supp. 38-2269(g)(1), the district court should give
"primary consideration to the physical, mental[,] and emotional health of the child" in
making a best interests determination. A district court decides best interests based on a
preponderance of the evidence. See In re R.S., 50 Kan. App. 2d at 1116. The decision
essentially rests in the district court's sound judicial discretion. 50 Kan. App. 2d at 1115-
16. An appellate court reviews those sorts of conclusions for abuse of discretion. A
district court exceeds that broad latitude if it rules in a way no reasonable judicial officer
would under the circumstances, if it ignores controlling facts or relies on unproven
factual representations, or if it acts outside the legal framework appropriate to the issue.
See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296
P.3d 1106 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

Without belaboring what we have already discussed, the mental and emotional
well-being of the children favored excising Mother from their lives. Close contact with
Mother upset both C.R. and L.R., worsening their mental and emotional health. In light of
the underlying circumstances—fairly described as horrific—we fail to see what interests
of C.R. and L.R. would be advanced by continuing their familial or legal relationship
with Mother. The district court grasped the relevant facts and understood the governing
law. We are comfortable that other district courts would reach the same best interests
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determination in comparable circumstances. The district court did not abuse its wide
judicial discretion on the best interests component of the termination decision.

Actions of Social Service Agency

For her final point on appeal, Mother contends the assigned social service agency
did too little to implement the reintegration plan. Mother specifically points to the
termination of visits between her and the children. She does not cite other precise
shortcomings in the agency's performance. First, of course, the therapists for C.R. and
L.R. reported that the visits were bad for the children. It wasn't just that the visits were
unproductive, they were counterproductive, leaving the children worse for having
participated. Continuing the visits would have conflicted with the basic purposes of the
Code. See K.S.A. 2018 Supp. 38-2201(b)(3) (statutory provisions to be "liberally
construed" to effect public policies, including "mak[ing] the ongoing physical, mental
and emotional needs of the child decisive considerations in proceedings under this
code"). Rehabilitative efforts aimed at restoring a family unit are appropriate if the result
can be accomplished "without further threat to the children." K.S.A. 2018 Supp. 38-
2201(b)(8). As we have already recognized, Mother submitted no contrary evidence
suggesting the children would have benefited from further visits or offering a tangible
plan with defined benchmarks and a predictive schedule for resuming visits, let alone
reintegration.

The remainder of Mother's argument consists of a generic assertion of insufficient
rehabilitative services and fails to advance a focused claim for relief. See Wrinkle v.
Norman, 297 Kan. 420, 426, 301 P.3d 312 (2013) (point raised incidentally on appeal
deemed abandoned). Moreover, the agency's efforts bear on only some of the statutory
grounds the district court cited in finding Mother unfit. See K.S.A. 2018 Supp. 38-
2269(b)(7). But other grounds and the more general statement of unfitness in K.S.A.
2018 Supp. 38-2269(a) are not directly tied to what a social service agency may or may
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not have done to assist an otherwise failing parent. Grossly insufficient agency assistance
could bear on whether a given parent's unfitness might actually be alleviated in the
foreseeable future. But that hypothetical case is not this case. See In re B.T., No. 112,137,
2015 WL 1125289, at *8 (Kan. App. 2015) (unpublished opinion) (under K.S.A. 2013
Supp. 38-2269[b][7], district court may weigh whether agency took reasonable steps to
reintegrate family but "herculean effort" not required).

Conclusion

Having considered the points Mother has raised on appeal, we find no basis for
reversing the district court's decision terminating her parental rights as to C.R. and L.R.

Affirmed.