In re S.F. ( 2021 )


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  •                           NOT DESIGNATED FOR PUBLICATION
    No. 123,639
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    In the Interest of S.F.,
    A Minor Child.
    MEMORANDUM OPINION
    Appeal from Shawnee District Court; RACHEL L. PICKERING, judge. Opinion filed November 12,
    2021. Affirmed.
    Rebekah A. Phelps-Davis, of Phelps-Chartered, of Topeka, for appellant natural mother.
    Morgan L. Hall, deputy district attorney, for appellee.
    Before ATCHESON, P.J., BRUNS and ISHERWOOD, JJ.
    PER CURIAM: This is an appeal from the district court's order terminating the
    parental rights of Mother to S.F. (YOB 2015). The district court found Mother was unfit,
    her unfitness was unlikely to change in the foreseeable future, and termination of parental
    rights was in the child's best interests. Mother contends: (1) the State failed to present
    clear and convincing evidence to support a finding of unfitness and that such unfitness
    was unlikely to change in the foreseeable future, and (2) the district court abused its
    discretion in finding that termination of parental rights was in the child's best interests.
    After carefully reviewing the record, we find clear and convincing evidence to support
    the district court's findings that Mother was unfit as a parent under Kansas law and that
    the conditions leading to the unfitness were unlikely to change in the foreseeable future.
    We also find no abuse of discretion in the district court's conclusion that termination of
    1
    Mother's parental rights was in the best interests of the child. We therefore affirm the
    district court's judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    On June 23, 2016, the Department for Children and Families (DCF) filed a
    petition alleging S.F., a minor child born in 2015, to be a child in need of care (CINC)
    pursuant to K.S.A. 2020 Supp. 38-2202(d)(1) and (d)(2). Mother was admitted to
    Stormont Vail West after attempting suicide twice in the two weeks preceding the filing
    of the CINC petition, one attempt by drowning and one attempt by overdosing on
    medication. Mother reported to the responding DCF investigator that she suffers from
    depression and bi-polar disorder. Mother admitted that she smoked marijuana with S.F. in
    the other room, and she admitted to kicking the bouncer that S.F. was in because the child
    was screaming and crying. Mother reported that S.F.'s father was incarcerated. She
    refused to sign a safety plan but agreed to work with family preservation services.
    That same day, S.F. entered into emergency protective custody with the Secretary
    of DCF. The court held a temporary custody hearing and found that an emergency existed
    which threatened the safety of the child, and she was likely to sustain harm if not
    removed from the home because of Mother's mental health condition and recent suicide
    attempts. The court also noted Mother's use of prescription medications and marijuana
    while caring for the child, and that Father could not help care for the child because he
    was incarcerated. S.F. was ordered into the State's custody, and DCF placed the child in
    the care of her maternal grandmother.
    The court conducted an adjudication hearing on July 25, 2016, at which Mother
    appeared in person and entered a stipulation that S.F. was a CINC. The district court
    delayed disposition to address Father's request for genetic testing to determine paternity.
    S.F. remained in State custody. On November 7, 2016, at an adjudication hearing
    2
    concerning Father, paternity was established, and Father entered a stipulation that S.F.
    was a CINC. The court proceeded to disposition, approved the proposed permanency plan
    of reintegration and ordered DCF to retain custody of the child.
    Permanency hearings were held on May 8, 2017, and again on April 2, 2018, to
    assess Mother's progress toward reintegration, and the district court found it remained
    adequate. A review hearing was conducted on July 9, 2018, and the district court ordered
    a change in the permanency plan to a dual goal of reintegration and adoption. It did not
    enter a finding on whether reintegration remained a viable option. The court held another
    review hearing on October 22, 2018, at which time the court reaffirmed its earlier change
    of the case plan goal.
    At a permanency hearing conducted on February 25, 2019, the court again
    concluded that Mother's progress toward reintegration was not sufficient. It concluded
    that reintegration was no longer a viable option and the permanency plan for the child
    was modified to an adoption only goal. The district court held a review hearing on June
    10, 2019, and ordered the State to file a motion to terminate parental rights within 30
    days after the hearing.
    The State complied with that directive and filed a motion for finding of unfitness
    and termination of parental rights or appointment of permanent custodian in which it
    alleged five factors supporting its claim that the parents were unfit:
    • emotional illness, mental illness, mental deficiency or physical disability of
    the parent, of such duration or nature as to render the parent unable to care
    for the ongoing physical, mental, and emotional needs of the child (K.S.A.
    2020 Supp. 38-2269[b][1]);
    • physical, mental, or emotional abuse or neglect, or sexual abuse of a child
    (K.S.A. 2020 Supp. 38-2269[b][4]);
    3
    • lack of effort on the part of the parent to adjust the parent's circumstances,
    conduct, or condition to meet the needs of the child (K.S.A. 2020 Supp. 38-
    2269[b][8]);
    • failure to maintain regular visitation, contact, or communication with the
    child or with the custodian of the child (K.S.A. 2020 Supp. 38-2269[c][2]);
    and
    • failure to carry out a reasonable plan approved by the court directed toward
    the integration of the child into the parental home (K.S.A. 2020 Supp. 38-
    2269[c][3]).
    The State also included a presumption of unfitness because, at that time, S.F. had
    been in out-of-home placement longer than two years. K.S.A. 2020 Supp. 38-2271(a)(6).
    Mother and Father were served with the motion to terminate parental rights.
    Another review hearing was held on November 4, 2019, and the parents requested
    that the motion to terminate parental rights be set for trial. Two months later, the parents
    expressed frustration over an inability to have visitation with S.F., as well as the lack of a
    contact person with the agency who could help them schedule visitations. The parents
    were provided with the name of the caseworker and the phone number for the agency.
    A permanency hearing was held on February 18, 2020, and the goal continued to
    be adoption. The matter was set for trial to start on April 1, 2020, but on March 17, 2020,
    the district court held another review hearing and determined good cause existed to
    continue the trial due to public health concerns arising from the COVID-19 pandemic. At
    a review hearing conducted two months later the district court informed the parents that
    the termination hearing would begin on July 14, 2020.
    A termination hearing was held July 14 through 16, 2020. At the outset of the
    proceedings Father relinquished his parental rights.
    4
    The State called Levi Jenkins as one of its early witnesses. Jenkins worked as a
    child protection specialist and was assigned to S.F.'s case in June 2016. He testified that
    the first report he received reflected that the child smelled like marijuana and there was
    mold around the ring of her bottle. He informed the court that the focus of the
    investigation then shifted to Mother's mental health. He testified that Mother had tried to
    commit suicide and had kicked S.F.'s bouncer seat while the child was in it and caused
    her to fly up in the seat as a result of the contact. Mother admitted to Jenkins that those
    incidents occurred and that she used marijuana while S.F. was in her care. After speaking
    with Mother, Jenkins was concerned that S.F. did not have a safe caregiver, so he
    initiated an investigation, assigned a child protection investigator to the case, and filed a
    formal CINC petition.
    Elizabeth Gilbert served as the case manager from September 2016 to September
    2019 and testified that she developed a case plan in October 2016 designed to reintegrate
    S.F. into Mother's home. As part of the plan, Gilbert provided tasks for Mother to
    complete that included the obligation to (1) maintain stable housing that was free from
    abuse and drugs, had adequate space for S.F., and met certain minimal standards of
    cleanliness; (2) maintain a source of sufficient income to meet the child's needs; (3)
    submit to monthly UAs or hair tests; (4) maintain monthly contact with the agency; (5)
    inform the agency of any changes to contact information; (6) participate in individual
    therapy and follow the recommendations; (7) schedule a drug and alcohol assessment and
    follow recommendations; (8) enroll in parenting class and implement the parenting skills
    during visits with the child; (9) explore services at the center for safety and empowerment
    and follow all recommendations; and (10) attend a vocational rehab orientation and
    explore the opportunities.
    In March 2018, Gilbert prepared a report documenting Mother's progress. She
    testified that Mother had completed many tasks, such as maintaining stable housing and
    employment, however, she failed to continue participating in mental health services
    5
    which was a critical factor given her history. Mother had also been permitted to have S.F.
    for some overnight visits, but there were concerns over the fact that Mother allowed
    individuals in the house who did not complete the required background checks. Gilbert
    also noted that Mother would not follow through with the overnight visit every time.
    Rather, she became overwhelmed caring for S.F. and asked the child's grandmother to
    come and get her prior to the scheduled end of the visit. The overnight visits were
    terminated based on these concerns.
    Gilbert testified that for the span of a few months Mother did not maintain contact
    with the agency, which slowed the reintegration efforts. Gilbert's primary concern during
    that time was that Mother was not attending individual mental health therapy. She noted
    that Mother did complete a parenting class, but still had moments where she became
    overwhelmed and stopped caring for the child. Gilbert testified that Mother was capable
    of appropriately interacting with S.F., but not for extended periods of time. She also
    stated that if Mother remained committed to her mental health care, she would be in a
    better position to care for the child properly.
    In June 2018, almost two years after S.F. was placed in protective custody, Gilbert
    prepared another report documenting Mother's progress. At that time, Mother was not
    having any visitation with S.F. because she had not maintained contact with the agency.
    Gilbert also testified that Mother suffered another suicide attempt in May 2018, and
    because of mental health concerns, any visitation with the child needed to be supervised.
    She explained that the need for supervised visits caused Mother's plan to begin anew if
    reintegration was the goal. And Mother still was not attending individual therapy. Gilbert
    worried about the amount of time that S.F. had been in DCF's custody and that Mother
    made very little progress toward reintegration during that period. Gilbert recommended a
    dual goal of reintegration/adoption so that the child could have an opportunity for
    permanency in the event Mother was unable to make progress toward reintegration.
    6
    In October 2018, Gilbert prepared another report documenting Mother's progress
    and noted that Mother failed to maintain contact with either Gilbert or the agency for the
    immediately preceding three months. At the time the report was drafted, Mother could
    enjoy supervised visits with S.F. in grandmother's presence. However, grandmother
    reported concerns about Mother's interaction with the child, in that she often parented
    from the couch and spent time on her phone rather than getting up and attending to S.F.'s
    needs. Additionally, Mother still struggled with parenting periods that extended beyond a
    couple of hours and her interaction and discipline of the child in response to normal
    toddler behaviors was inconsistent. Gilbert observed that while Mother had not received
    permission to extend her visits with S.F., she also had not reached out to the agency
    seeking to increase either the duration or frequency of her visitation. Further, when S.F.
    underwent surgery in 2018, Mother did not attend even though she had received
    permission to do so. Gilbert also reported that Mother had appropriate housing but was
    once again unemployed. Additionally, while Mother did threaten suicide in September
    2018, fortunately she had also taken the initiative to resume therapy and follow a
    prescribed medication regimen. At the conclusion of her report, Gilbert recommended
    that adoption be the singular goal for the case given the length of time S.F. had been in
    DCF custody, that there continued to be concerns surrounding Mother's mental health,
    and that Mother failed to make a meaningful measure of progress toward reintegration.
    Gilbert reported on Mother's progress again in February 2019. At that point,
    Mother's visits with S.F. often involved reliance on grandmother to intervene and parent
    the child. Grandmother wanted to encourage Mother to rely on her own parenting skills,
    so the agency returned Mother's visits with S.F. to its office. Mother's visits with S.F.
    achieved a level of consistency as did her contact with the agency. Also, at the favorable
    end of the spectrum, Mother continued to address her mental health issues, including
    undertaking the process to enter individual therapy. Gilbert acknowledged that Mother
    completed a portion of the case plan goals, but adoption remained her sole
    7
    recommendation because Mother had not yet made what Gilbert would classify as
    appreciable progress toward reintegration.
    Gilbert's next progress report was dated June 2019, which was three years after
    S.F. was placed in DCF custody. At this time, Mother had progressed to community visits
    with S.F., such as outings at the park, and Gilbert noticed an improvement in Mother's
    interactions with the child. However, it also was not uncommon for Mother to cancel
    visits with S.F., and she had yet to ask about the possibility of increasing her visitation
    with S.F. Mother continued to struggle with mental health issues and at the time of
    Gilbert's report, was waiting for an assignment to a new therapist as the one she had been
    seeing passed away. It remained Gilbert's opinion that given the time S.F. had been in
    custody, Mother's inability to manage extended visits with the child, and Mother's
    ongoing struggle with mental health issues, that adoption was in the child's bests
    interests. Gilbert testified that grandmother and S.F. shared a strong relationship and
    grandmother was an adoptive resource for her.
    Alexandra Hilliard, a permanency supervisor, testified that she was involved in the
    child's case from October 2018 to December 2019. In September 2019, Hillard prepared a
    report documenting Mother's progress. At that time, Mother was sharing only supervised
    visits with S.F. once a month because the agency still harbored concerns for the child's
    safety. Hilliard testified that after three and a half years in placement, extended visitation
    should be occurring with significant progress toward reintegration. Yet Mother remained
    unable to manage overnight visits with S.F. or care for the child for extended periods of
    time because she still got overwhelmed and required grandmother's assistance. According
    to Hilliard, Mother's inability to care for the child for long periods of time was a barrier
    toward reintegration. Mother was also no longer receiving therapy. The case plan goal
    remained limited to adoption mainly as a result of Mother's inability to parent S.F. for a
    prolonged amount of time.
    8
    Hilliard prepared a second report roughly a month later and noted that during the
    preceding month Mother's ability to parent S.F. had not improved so, correspondingly,
    she had not made progress toward increased visitation. Additionally, Mother continued to
    not attend therapy or otherwise address her mental health issues. Hillard expressed
    concern that the case was essentially stagnant because Mother was not making progress
    toward reintegration. She again recommended adoption, under the belief that it was in the
    child's best interests.
    Becky Mauer, a permanency supervisor, testified that she was assigned to S.F.'s
    case from February 2020 through April 2020. According to her February 2020 report,
    Mother was no longer seeing S.F. on a visitation schedule set by the agency but was
    simply visiting with the child informally whenever the grandmother would transport
    Mother to appointments or run errands. Nor did Mother maintain consistent contact with
    the agency from October 2019 to February 2020. It troubled Mauer that Mother still did
    not participate in a mental health treatment regimen. Mauer adhered to a case plan goal of
    adoption because of continued concerns about Mother's mental health status and the time
    S.F. had been in DCF custody.
    Karen Olson-Thomas, an adoption case manager, also prepared a report for the
    court for the termination proceedings. Olson-Thomas informed the court that she became
    involved in the case in April 2020, but she had only spoken with Mother one time, in
    June 2020. At that time, Mother still did not attend therapy or take medication to manage
    her varied mental health issues. Even so, Olson-Thomas stated that reintegration should
    be considered along with adoption.
    LuRita Boggs, a permanency supervisor, became involved with S.F.'s case in April
    2020, one month before the termination proceedings. Boggs testified that given her
    limited involvement she did not feel it was appropriate for her to make a recommendation
    about the appropriate disposition for the case. Even so, she would not be comfortable
    9
    sending the child to live with Mother at that time. According to Boggs, following the
    passage of more than four years, the case should have either gone to reintegration or
    termination. Boggs testified that she did not believe it was in S.F.'s best interests to be
    reintegrated with Mother because of how long the child had spent in DCF custody.
    S.F.'s maternal grandmother testified that she accepted custody of the child when
    she was six months old and that is where she has remained. The grandmother informed
    the court that sometimes Mother goes "to dark places, and has doubts about herself and
    her capabilities," so she has concerns about Mother caring for S.F. on a full-time basis.
    She testified that during supervised visits between Mother and S.F., Mother sometimes
    required assistance in caring for the child. Other times, Mother would try to parent from
    the couch rather than getting up and interacting with S.F. That said, grandmother did
    believe that Mother's parenting skills had improved, as evidenced by her increased
    patience with S.F. Grandmother stated she believed it is in S.F.'s best interests to remain
    in her home and she would be willing to adopt S.F. if Mother's rights were terminated.
    She informed the court that she had concerns about S.F. living with Mother full-time but
    would encourage S.F. to maintain a relationship with Mother.
    Mother testified that after her therapist's death, she stopped taking her medication
    and experienced a marked improvement in her mental health. While she continued to
    suffer dark periods and occasional bouts of depression, she no longer experienced
    suicidal ideation and had not attempted suicide in about two years. Mother informed the
    court that she underwent a new mental health evaluation a few days before the
    termination proceedings and the evaluator did not recommend that she either attend
    therapy or take medication. Additionally, Mother testified that she recently moved in to a
    two-bedroom apartment with her brother, an arrangement that would enable S.F. to have
    her own room. Mother also shared with the court that she had secured full-time
    employment and already took the initiative to inform her boss that if she regained custody
    of S.F., she could not work the evening shift. Finally, Mother testified that her parenting
    10
    skills had improved, and she had learned to be more patient with S.F. She explained to
    the judge that she loves her daughter and would like the opportunity to begin anew with
    her. Mother acknowledged that reintegration was not a possibility if she did not complete
    the case plan tasks.
    On December 7, 2020, the district court filed an order terminating Mother's
    parental rights to S.F., finding Mother unfit by reason of conduct or condition which
    renders the parent unable to care properly for the child. Although the State asserted a
    presumption of unfitness under K.S.A. 2020 Supp. 38-2271(a)(5) in its petition and in
    response to the motion to dismiss, it ultimately abandoned its assertion of the
    presumption. The court found that the factors of unfitness set out against Mother are
    supported by clear and convincing evidence and are unlikely to change in the foreseeable
    future. The court also determined that termination of parental rights is in the best interests
    of the child. Mother's appeal brings the matter to us.
    ANALYSIS
    Mother argues that the district court erred by terminating her parental rights
    because there was not clear and convincing evidence to support the finding that she was
    unfit and that her unfitness was unlikely to change in the foreseeable future. She
    challenges every factor that the district court cited to support a finding that she was unfit
    as well as its conclusion that the condition was unlikely to change. She seeks reversal of
    the termination order. In response, the State contends that sufficient evidence supported
    the district court's findings, and that termination of Mother's parental rights to S.F. was
    appropriate.
    The Revised Kansas Code for Care of Children provides that the district court may
    terminate parental rights only after it first makes three specific findings: (1) the court
    finds by clear and convincing evidence that the parent is unfit by reason of conduct or
    11
    condition which renders the parent unable to care properly for a child; (2) the conduct or
    condition that makes the parent unfit is unlikely to change in the foreseeable future; and
    (3) by a preponderance of evidence terminating the parental rights is in the best interests
    of the child. K.S.A. 2020 Supp. 38-2269(a), (g)(1); see In re D.H., 
    54 Kan. App. 2d 486
    ,
    488, 
    401 P.3d 163
     (2017).
    Parents who have assumed parental responsibilities "have a fundamental right to
    raise their children that is protected by the United States Constitution and the Kansas
    Constitution. [Citation omitted.]" In re Adoption of C.L., 
    308 Kan. 1268
    , 1279, 
    427 P.3d 951
     (2018); see Santosky v. Kramer, 
    455 U.S. 745
    , 753, 758-59, 
    102 S. Ct. 1388
    , 
    71 L. Ed. 599
     (1982). In Kansas, when a child has been adjudicated to be a child in need of
    care, 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 change in the foreseeable future." K.S.A. 2020 Supp. 38-2269(a). The court
    may make the fitness findings based only on clear and convincing evidence, so it is our
    obligation on appeal to determine whether clear and convincing evidence supports the
    district court's findings. K.S.A. 2020 Supp. 38-2269(a). To do so, we analyze whether the
    evidence, viewed in the light most favorable to the State, could have convinced a rational
    fact-finder that these facts were highly probable. In making this determination, we do not
    weigh conflicting evidence, pass on the credibility of witnesses, or redetermine factual
    questions. In re Adoption of Baby Girl P., 
    291 Kan. 424
    , 430-31, 
    242 P.3d 1168
     (2010);
    In re K.L.B., 
    56 Kan. App. 2d 429
    , 445, 
    431 P.3d 883
     (2018).
    In addition, a court reviewing the termination of parental rights must also
    determine based upon a preponderance of evidence "whether termination of parental
    rights . . . is in the best interests of the child" by primarily considering the child's
    physical, mental, and emotional needs. K.S.A. 2020 Supp. 38-2269(g)(1); In re R.S., 
    50 Kan. App. 2d 1105
    , 1115-16, 
    336 P.3d 903
     (2014). "If the physical, mental or emotional
    12
    needs of the child would best be served by termination of parental rights, the court shall
    so order." K.S.A. 2020 Supp. 38-2269(g)(1).
    In June 2016, when S.F. was six months old, Mother stipulated that she was a
    CINC and Mother does not dispute that issue on appeal. Essentially, she contends that
    because she completed a portion of the case plan tasks assigned to her, the State failed to
    present clear and convincing evidence that she was unfit. She also challenges whether the
    agencies involved made reasonable efforts to reintegrate her with her child.
    K.S.A. 2020 Supp. 38-2269(b) provides a list of nonexclusive factors a court shall
    consider as part of the unfitness calculus. The district court must also contemplate a
    separate list of nonexclusive factors when a child is not in the parents' physical custody,
    such as in this case. K.S.A. 2020 Supp. 38-2269(c). Any one of the factors set forth in
    K.S.A. 2020 Supp. 38-2269(b) or (c) may, but does not necessarily, establish grounds for
    termination of parental rights. K.S.A. 2020 Supp. 38-2269(f). In deciding whether
    termination is in the best interests of the child, the district court should give primary
    consideration to the physical, mental, and emotional needs of the child. K.S.A. 2020
    Supp. 38-2269(g)(1).
    With these standards in mind, we turn to the merits of Mother's appeal. Here, the
    State presented evidence regarding five factors to prove that Mother was unfit.
    1. Emotional illness, mental illness, mental deficiency, or physical disability of the
    parent, of such duration or nature as to render the parent unable to care for the ongoing
    physical, mental, and emotional needs of the child (K.S.A. 2020 Supp. 38-2269[b][1]).
    The State presented evidence that Mother attempted suicide on at least three
    occasions and threatened suicide at least one other time. Mother admits that she struggles
    with various forms of mental illness including, post-partum depression, bipolar disorder,
    PTSD, anxiety, and severe depression.
    13
    Mother's case plan required her to attend individual therapy and follow all
    recommendations. Throughout the case, Mother did not consistently participate in mental
    health services. At one point the mental health provider dismissed her as a client because
    she failed to attend appointments. Mother eventually resumed treatment but following the
    death of her therapist, the provider again placed Mother on probation for 90-days as a
    result of missed appointments.
    At trial, Mother testified that she stopped taking her medications but experienced a
    result in that she suffered fewer "dark" phases and depressive episodes. Additionally, a
    period of about two years had passed since she had attempted suicide or experienced
    suicidal ideation. Maternal grandmother testified that during Mother's "dark" phases
    Mother gets depressed and withdraws. According to the grandmother, Mother suffered
    around six of these periods in the year before trial and during two of those Mother would
    not have been able to care for S.F.
    The court also received evidence that Mother could not care for or attend to S.F.'s
    needs for extended periods of time. On those occasions when Mother got the chance to
    share in overnight visits with S.F. she often got overwhelmed and called grandmother to
    come pick the child up. Mother testified that she had eight overnight visits with her
    daughter and had to call grandmother during more than three of those because caring for
    S.F. proved to be too much for her. The court also heard testimony from the agency that
    Mother's inability to parent the child without becoming overwhelmed was tied to her
    mental illness. The agency returned Mother's visits back to supervised status to ensure
    S.F.'s safety was not compromised.
    Mother admitted that she was not attending therapy or taking medication as
    required by the case plan, but she points to her improved mental health in arguing that the
    district court erred in finding sufficient evidence to support this factor. Although there is
    evidence in the record that Mother's mental health has improved, the State provided
    14
    sufficient evidence that Mother's mental illness still renders her unable to adequately care
    for S.F.'s needs.
    2. Physical, mental, or emotional abuse or neglect, or sexual abuse of a child (K.S.A.
    2020 Supp. 38-2269[b][4]).
    The sole evidence supporting this factor is Mother's admission to kicking the six-
    month-old child when she was crying in her bouncer. S.F. flew up in the bouncer but did
    not fly out of the bouncer. This incident occurred prior to the time that she was placed in
    DCF custody. It amounts to uncontroverted evidence that an isolated incident of physical
    abuse occurred about four years prior to the termination proceedings. Accordingly, this
    factor does not sustain a finding of present unfitness or evidence that Mother's conduct in
    accordance with this factor is unlikely to change in the foreseeable future.
    3. Lack of effort on the part of the parent to adjust the parent's circumstances, conduct,
    or condition to meet the needs of the child (K.S.A. 2020 Supp. 38-2269[b][8])
    The State presented sufficient evidence to support the district court's finding that
    Mother failed to adjust her circumstances, conduct, or condition to meet the needs of the
    child. In trying to undermine the evidence Mother points to ways in which she did adjust
    her circumstances and highlights the progress that she made on individual case plan tasks,
    such as finding a suitable apartment and fulltime employment. As further support for her
    argument, Mother tries to direct our attention to programs and services that she believes
    would have been beneficial to her reintegration efforts. It is not lost on us that Mother did
    complete a portion of her case plan tasks. Even so, the evidence before the district court
    reflected that S.F. spent nearly four years in the State's custody and during that time
    Mother's progress toward reintegration was minimal at best. The fulfillment of limited
    tasks does not rise to the level of the progress required to bring her closer to reintegration.
    15
    The district court heard evidence that Mother's pervasive mental health struggles
    were a considerable hurdle for her in achieving reintegration. Nevertheless, the evidence
    reflected that Mother failed to attend individual therapy and take her medication as
    needed to stabilize her mental health. Additionally, Mother neglected to maintain
    consistent contact with the agency, did not pursue an increase in her visitation time with
    S.F., and did not prove the ability to successfully care for the child for any lengthy period
    of time. The State presented clear and convincing evidence that Mother failed to adjust
    her circumstances, conduct, or condition to meet the needs of the child.
    4. Failure to maintain regular visitation, contact, or communication with the child or
    with the custodian of the child (K.S.A. 2020 Supp. 38-2269[c][2]).
    Mother points to evidence in the record highlighting the agency's failures in
    communication and recordkeeping. Yet she also admits she did not consistently maintain
    contact with the agency. She claims those periods of time are not necessarily indicative of
    a corresponding lack of contact with S.F. Still, the evidence before the district court
    established that Mother cancelled visits with S.F., cut their visits short, or otherwise
    failed to adhere to an official visitation structure with the child. For example, at the time
    of termination, Mother's visits with S.F. occurred only when the grandmother took
    Mother to appointments or to run errands. The record reflects that her last official visit
    with the child occurred in February 2020, which was five months before trial. Mother's
    assertion that the agency exhibited shortcomings in communication does not invalidate
    the uncontroverted evidence that she failed to maintain regular contact and
    communication. The district court's finding that Mother failed to maintain regular
    visitation, contact, or communication with the child is supported by clear and convincing
    evidence.
    16
    5. Failure to carry out a reasonable plan approved by the court directed toward the
    integration of the child into the parental home (K.S.A. 2020 Supp. 38-2269[c][3]).
    The court received extensive evidence that Mother failed to carry out a reasonable
    plan directed toward the reintegration of S.F. into the parental home. Mother points to
    several examples which she contends reveal the completion of case plan tasks, an
    improvement in her parenting skills, and progress towards reintegration. She also asserts
    that the specialists most recently assigned to her case believed that she should be afforded
    more time to achieve reintegration. But the district court found those witnesses lacked
    credibility because they were not involved in the history of the case. The standard of
    review to which we are bound prohibits us from reassessing the credibility of those
    witnesses. In re K.L.B., 56 Kan. App. 2d at 445. The evidence presented to the district
    court also included testimony from several professionals which established that while
    Mother had a history of completing case plan tasks, she often regressed and did not make
    further progress toward reintegration. Those witnesses repeatedly expressed concern
    about how long S.F. had been in the State's custody without making much progress
    toward reintegration, and they noted that the child needed permanency. Finally, the
    uncontroverted evidence before the court was that Mother was consistently unable to care
    for S.F. for longer than a few hours at a time. Without this ability, Mother was unable to
    prove that she could increase her visitation and eventually take over the daily care of the
    child. This key shortcoming evidenced that Mother failed to carry out a reasonable plan
    directed toward S.F.'s reintegration into the home.
    In summary, S.F. entered DCF custody when she was only six months old. Mother
    made some measure of progress on her case plan tasks, unfortunately, the changes she
    made did not firmly take root and she was unable to sustain the growth required to make
    reintegration a reality. Most notable was that Mother's participation in therapy ebbed and
    flowed even though her mental health issues were the primary hurdle to reuniting with
    her daughter. Accordingly, we find the evidence strongly supports the district court's
    17
    conclusion that Mother's mental illness rendered her unable to care for the ongoing
    physical, mental, and emotional needs of the child. Mother showed a lack of effort to
    adjust her circumstances, conduct, or condition to meet the needs of the child, she failed
    to maintain regular visitation, contact, or communication with the child, and Mother
    failed to carry out a reasonable court-approved plan aimed at reintegration.
    In making its decision, the district court acknowledged that S.F. had been out of
    the home for about four years and needed permanency as well as a stable home. The
    district court properly determined that based on the evidence presented, Mother was
    presently unfit, and her conduct was not likely to change in the foreseeable future. It
    identified that "child time" was a critical factor in the analysis and, in that vein, during
    the preceding four years Mother never reached a point where she could provide continual
    care for her child. In arriving at its decision, the court stated:
    "This child has a right to permanency within a time frame reasonable for her own
    well-being. See In re M.H., 50 Kan. App. 2d [1162,] 1170-71[, 
    337 P.2d 711
     (2014)]. In
    light of mother's past inability to parent this child along with her other failures in
    completing case plan tasks, the uncertainty created by mother's failure to parent [the]
    child for a substantial period of time, the lengthy amount of time necessary for [Mother]
    to eventually care for her child, and this court considering this issue in terms of 'child
    time' rather than 'adult time,' this court finds the evidence clear and convincing and
    sufficient to convince a rational fact-finder to find it highly probable that the mother's
    conduct or condition is unlikely to change in the foreseeable future."
    Mother challenges the district court's finding that her unfitness was unlikely to
    change in the foreseeable future. In essence, Mother is requesting that we reweigh the
    evidence presented to the district court. That is not our role.
    There is no set amount of time that constitutes the "foreseeable future." Kansas
    measures this time "from the child's perspective, not the parent['s], as time perception of a
    18
    child differs from that of an adult." In re S.D., 
    41 Kan. App. 2d 780
    , Syl. ¶ 9, 
    204 P.3d 1182
     (2009); see K.S.A. 2020 Supp. 38-2201(b)(4). This court has considered periods of
    time as short as seven months to be the foreseeable future from a child's perspective. 41
    Kan. App. 2d at 790. Children have the right to permanency in a time frame reasonable to
    them. In making this determination, the court may look to the parents' past conduct—as
    the district court did in this case—as indicative of future behavior. See In re K.L.B., 56
    Kan. App. 2d at 447.
    The record reflects that Mother loves and shares a bond with S.F. Even so, the
    child was removed from the home and placed in her grandmother's care in June 2016
    where she remained until Mother's rights were terminated four years later. Viewing the
    evidence in a light most favorable to the State, we find clear and convincing evidence to
    support the district court's findings that Mother's unfitness was unlikely to change in the
    foreseeable future.
    The district court did not abuse its discretion in finding that termination of
    parental rights was in the best interests of the child.
    Mother also challenges the district court's finding that termination was in the best
    interests of the child. She argues that harm occurs when a child is separated from his or
    her parent, and the district court should have considered a guardianship rather than
    termination. But Mother did not raise this argument to the district court, and it is not our
    role to determine whether a guardianship would have been more appropriate. Once the
    district court finds that a parent is unfit and the condition of unfitness is unlikely to
    change in the foreseeable future, it must determine whether termination of parental rights
    is in the best interests of the child involved. K.S.A. 2020 Supp. 38-2269(g)(1). Under the
    statute, in making that determination, the court must give primary consideration to the
    physical, mental, or emotional health of the child. K.S.A. 2020 Supp. 38-2269(g)(1).
    19
    The determination of the best interests of the child is entrusted to the district
    court's sound judicial discretion based on a preponderance of the evidence. As a result,
    our review of this determination is for an abuse of that discretion. In re M.S., 
    56 Kan. App. 2d 1247
    , 1264, 
    447 P.3d 994
     (2019); In re K.R., 
    43 Kan. App. 2d 891
    , 903-04, 
    233 P.3d 746
     (2010). A district court abuses its discretion if it bases its decision on an error of
    fact or law or if no reasonable person would agree with its decision, and the party
    asserting an abuse of discretion bears the burden of showing it. In re P.J., 
    56 Kan. App. 2d 461
    , 465-66, 
    430 P.3d 988
     (2018). The court should weigh the benefits of permanency
    for the child without the presence of a parent against the continued presence of the parent
    and the attendant issues that parental presence creates in the child's life.
    In its ruling, the district court noted that Mother cares deeply for the child but
    found it significant that Mother had not consistently sought to parent the child in a
    manner that demonstrated she was ready for reintegration. It pointed to evidence of
    Mother's continued mental health struggles and noted that S.F. "needs a parent who is
    mentally stable and can provide for all of her needs." The court also expressed concern
    that reintegrating the child with Mother after such a long time period would be potentially
    emotionally harmful to S.F., noting that she is bonded with her grandmother and is
    "receiving the best possible care with her maternal grandmother."
    The district court considered the emotional, physical, and psychological needs of
    the child, her need for permanence in a stable home, and the recommendations of the
    professionals closest to the case. The district court also considered the passage of time
    here from the child's perspective, and that consideration is in line with Kansas caselaw
    and guidance provided by the Legislature through K.S.A. 2020 Supp. 38-2201(b)(4).
    Considering the record, we have no difficulty concluding that the district court did not
    abuse its discretion in finding that termination of parental rights was in the child's best
    interests. A rational factfinder could have found that delaying permanency would not be
    in S.F.'s best interests in this case.
    20
    We acknowledge that the loss of parental rights is both tragic and sobering. There
    is no doubt that Mother cares for S.F. very deeply, but this case is not about Mother's
    love for her daughter. It is about the impact her mental health issues have on her ability to
    effectively nurture and care for S.F. The agency emphasized that Mother's struggles with
    her mental health were the main issue preventing Mother from achieving significant steps
    toward parenting S.F. in a meaningful, healthy way. Yet those issues continued to occur
    without successful redress. This is a difficult case because Mother has the skills to parent,
    but her illness simply would not allow her to commit to a treatment regimen that would
    enable her to prevent those issues from interfering with her capabilities. The unfortunate
    truth is Mother could not capitalize on the opportunities and resources available to her.
    In summary, viewed in the light most favorable to the prevailing party, we
    conclude there is clear and convincing evidence to support the district court's finding of
    unfitness and that the conduct or condition rendering Mother unfit to care for S.F. was
    unlikely to change in the foreseeable future. In addition, Mother fails to show that the
    district court abused its discretion in ruling that termination of her parental rights was in
    the child's best interests. We therefore affirm the district court's order terminating
    Mother's parental rights.
    Affirmed.
    21
    

Document Info

Docket Number: 123639

Filed Date: 11/12/2021

Precedential Status: Non-Precedential

Modified Date: 11/12/2021