In re J.W.

1

In the Interest of J.W., a Minor Child.

No. 125,838

Court of Appeals of Kansas

July 28, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Rice District Court; STEVEN E. JOHNSON, judge.

Bradley T. Steen, of Law Office of B. Truman Steen, LLC, of Ellsworth, for appellant natural father.

Remington S. Dalke, county attorney, for appellee.

Before BRUNS, P.J., GREEN and SCHROEDER, JJ.

MEMORANDUM OPINION

PER CURIAM

Father appeals the termination of his parental rights to his daughter, J.W. He argues the district court violated his due process when it terminated his parental rights without proper notice. Because Father did not receive adequate notice of the termination hearing, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Give the legal question raised by Father, the facts of this child in need of care (CINC) case are largely irrelevant and summarized mainly for context. J.W. was born in 2021, to Mother and Father. Because J.W. and Mother both tested positive for methamphetamine, hospital staff contacted law enforcement for assistance with an agency intake with the Kansas Department for Children and Families (DCF) per standard protocol. When officers tried to speak with Father about the intake process, he became very agitated, started yelling, and then left the hospital. Father and Mother engaged in verbal argument that continued to the parking lot, where they continued to yell at each other in Jeremy's car. Fearing for the child's safety, the officers decided to take J.W into police protective custody. These circumstances led to the State filing a CINC petition pertaining to J.W. on January 27, 2021.

The district court promptly ordered placement of J.W. in the custody of DCF and ordered that both parents must test negative for illegal substances before visitation could begin. At a hearing the next month, the court adjudicated J.W. to be a child in need of care under K.S.A. 38-2202(d)(1) as to Mother based on a no-contest stipulation. Father, on the other hand, contested the adjudication and requested an evidentiary hearing. The court ordered both parents to "cooperate fully" with St. Francis Ministries (SFM) and obtain three clean drug tests before visitation could begin. The initial permanency plan proposed by SFM in February 2021 included tasks for each parent, including, but not limited to, completing a drug and alcohol evaluation completing a mental health evaluation, communicating with SFM caseworkers in an appropriate manner, completing an approved parenting class, allowing random walkthroughs of the home, and completing initial paperwork.

The district court held an adjudication hearing on March 30, 2021, after which it entered an order finding J.W. to be a child in need of care as to Father based on clear and convincing evidence. The court approved the proposed permanency plan, noting further in its adjudication order that both parents needed to submit to drug testing and have three clean tests before visitation could occur. As to Father, the court also ordered him to submit to a mental health evaluation and comply with all SFM recommendations.

Following a permanency hearing in June 2021, the district court entered an order again requiring both parties to comply fully with SFM and for Father to submit to hair follicle testing. The court also found Father to be in contempt of court for disruptive behavior at the hearing and remanded him to the county jail. He was released from jail a few days later.

As the case progressed, Mother and Father did very little to work toward reintegrating J.W. into their home. Relevant to this appeal, Father actively refused to work with SFM on completing any case plan tasks, often expressing distrust with the agency and meeting their efforts at progress with confrontation. To that end, at a permanency hearing in February 2022, the district court found reintegration with either parent was no longer viable and entered an order setting the case plan goal for adoption.

In March 2022, the State filed a motion for findings of unfitness and termination of parental rights. The State also filed a notice of intent to rely on a statutory presumption of unfitness, since J.W. had been in out-of-home placement for a cumulative period of one year or longer and Mother and Father had substantially neglected or willfully refused to carry out a reasonable reintegration plan. See K.S.A. 38-2271(a)(5).

The district court held a hearing on the State's motion for termination of parental rights on May 25, 2022. Because Mother had not been properly served and did not appear, the court found it lacked jurisdiction to consider termination of her parental rights. As to Father-who was present at the hearing and represented by counsel-the State called several caseworkers involved in the case as witnesses, who testified consistently about his deliberate refusal to work with SFM on completing case plan tasks throughout the entire case. Cary Henry, a social worker assigned to the case, stated that Father's repeated refusal to complete drug testing prevented him from ever having visitation with J.W., as that was one of the court's orders from the outset. Father completed an Indian Child Welfare Act affidavit while he was in custody on the contempt finding in June 2021-six months after the case initiated. Dawn Debolt, a family support worker assigned to the case, testified that when she met with Father in the jail, he refused to sign any paperwork related to the case because it contained the words "'Reintegration, foster care, adoption.'" When caseworkers would attempt to meet with Father at his home, he would often yell at them to leave his property.

Father testified in his own defense at the hearing, explaining that he got very upset when the police came to speak with him in the hospital after J.W. was born and that he was not aware Mother had been using methamphetamine. Father repeatedly stated that he would work with DCF but "didn't want nothing to do with [SFM]." Father believed SFM had "kidnapp[ed]" his child. Despite Father's pattern of refusing to work with SFM, he still said he would be willing to cooperate with them on completing case plan tasks so that J.W. could come home with him.

Following the hearing, the district court on June 13, 2022, entered a memorandum decision and then filed a June 28, 2022 journal entry on the State's motion to terminate parental rights. As to Father, the court found the State was entitled to the presumption of unfitness under K.S.A. 38-2271(a)(5) and that Father had failed to rebut the presumption, explaining its finding as follows:

"The State is entitled to the presumption contained in K.S.A. 38-2271(a)(5) wherein the child has been in out-of-home placement for one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan approved by the court directed towards reintegration of the child into the parents' home. This has been proved by clear and convincing evidence, including the admission of the father during his own testimony. The court has no doubt that the State has met its burden of proof to justify termination of the parental rights of the father through the presumption, which was proved to the court by clear and convincing evidence, and the father has failed to overcome this presumption with any evidence."

Nevertheless, the district court declined to terminate Father's parental rights at that time, explaining that Father "might be capable of caring for this child and it may not be in the child's best interests for the father's parental rights to be terminated despite the State accomplishing its statutory burden to show the father unfit." The court noted that Father's refusal to work the reintegration plan was due to his "personal nature that makes him completely and totally uncooperative and distrusting of St. Francis and probably anyone in authority."

Addressing the likelihood that Father's unfitness was unlikely to change in the foreseeable future, the district court noted Father had testified at the termination hearing that he would make an effort to complete case plan tasks. Thus, the court explained Father would receive "one more opportunity" to show he could work toward reintegration, with some specific requirements. The court ordered Father to "give up marijuana, even when he visits legal jurisdictions," and comply with random drug testing. Father would either need to have three clean urinalysis (UA) test results before he could start visitation or a clean hair follicle "for everything except THC," followed by one clean UA.

The district court set a deadline of six months, explaining if Father had not substantially complied with the reintegration plan within that period,

"the court will entertain a new motion for termination of parental rights on the issue of the best interests of the child and the likelihood of the father to adjust his circumstances to care for the child. This court intends to have a review hearing in this matter in three months and will set one coordinating it with the parties. Two things will concern the court. One, will the father demonstrate a sincere effort to comply as he promised, and two, has St. Francis demonstrated a sincere effort to assist the father to succeed. The State may reset the motion for termination of the mother's parental rights as it sees fit."

The district court held a review hearing on September 20, 2022 which Father appeared at in person. The court began by referring to an SFM court report submitted before the hearing, which indicated that SFM "had made reasonable efforts and basically that [Father] has not." The report reflected that Father had provided one random mouth swab in June 2022, which...