In re H.C. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,502
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of H.C. and I.C.,
Minor Children.
MEMORANDUM OPINION
Appeal from Ford District Court; LAURA H. LEWIS, judge. Opinion filed May 28, 2021.
Affirmed.
Clay A. Kuhns, of Meade, for appellant Father.
Kathleen Neff, deputy county attorney, and Kevin Salzman, county attorney, for appellee.
Before ARNOLD-BURGER, C.J., HILL, J., and MCANANY, S.J.
PER CURIAM: The father, whom we will refer to in this opinion simply as
"Father," appeals the district court's order terminating his parental rights to his two sons,
whom we will refer to in this opinion as H.C., born in 2013, and I.C., born in 2014.
In a separate but companion appeal, the mother of these children, whom we will
refer to in this opinion as "Mother," also appeals the district court's termination of her
parental rights to these children, as well as the termination of her parental rights to her
daughter, R.H. who was born in 2007. Father is not the natural father of R.H. but rather
her stepfather. He is not directly involved in the termination of Mother's rights to R.H.,
but we will refer from time to time in this opinion to R.H. as she was one of the three
children of the household.
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The district court found Father was unfit as a father of H.C. and I.C., his unfitness
was unlikely to change in the foreseeable future, and termination of his parental rights
was in the best interests of these two children.
Father contends: (1) the district court's decision to terminate his parental rights
was not supported by the evidence; (2) the district court erred in finding that his
circumstances were unlikely to change in the foreseeable future; and (3) the district court
erred in applying the presumption of unfitness set forth in K.S.A. 2020 Supp. 38-
2271(a)(5).
After carefully reviewing the evidence, we find clear and convincing evidence to
support the district court's findings that Father was unfit as a parent under Kansas law and
that the conditions leading to that finding were unlikely to change in the foreseeable
future. We also find no abuse of discretion in the district court's decision to terminate
Father's parental rights. Finally, we note that there is no indication that the district court
applied a presumption of unfitness in this case, so Father has failed to show error.
Accordingly, we affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Facts Leading to the Termination Proceedings
In May 2015, the Department for Children and Families (DCF) first contacted this
family after law enforcement found the oldest child, R.H., a block from home wearing
her underwear and a swimsuit top while the parents were asleep. The house was a safety
concern for the children due to dog feces, urine, trash, and clutter throughout the house.
The family cleaned the house to address these concerns.
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In August 2016, DCF again became involved with the family when it was reported
that the home conditions were filthy, unsafe, and unhealthy. DCF again found that the
parents needed to clean the home to alleviate the concerns. The family was referred to
branch services, which were less intensive than family preservation services.
On February 28, 2017, the family was referred to family preservation services
after a domestic dispute between Mother and Father, which led to Father's arrest. Father
returned home upon being released, which was a violation of a no-contact order. Mother
eventually agreed to drop the no-contact order and agreed to participate in family
services.
In April 2017, DCF became involved again with reoccurring concerns about
physical neglect of the children and their unsafe living environment. There were reports
that R.H. was coming to school dirty and that relatives who used methamphetamine were
living in the house. In an interview, R.H. reported someone staying in the house smoked
"spice," but she said Mother had smelled it and asked the person to move out. R.H. also
said there was a broken pipe in the basement of the residence. She reported that she was
out of her prescribed medication that week. During an investigation, the school reported
difficulty dealing with Mother due to her lack of veracity. R.H. was missing school and
her individualized education plan (IEP) meetings. Mother reported to the social worker
that a pipe was broken, and she was unable to use the kitchen sink or the washing
machine. The child protection specialist reported that the basement showed evidence of a
flood. Once again, at DCF's request, the family cleaned the home.
In July 2017, DCF was again notified of the same complaints. The children were
seen running around outside with full diapers, and there was a concern about drug users
living in the home. The conditions in the house were somewhat improved, but the porch
was covered with trash and had an odor of rotting food. Cockroaches and mice were seen
on the porch. DCF made another referral to family preservation services for the family.
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On September 5, 2017, officers responded to a report that a small, naked child was
wandering alone in the area. They found four-year-old H.C., who could not speak but
who pointed in the direction of his home. Back at the house, the officers noted that the
porch had piles of trash and dirty clothes. Inside, Father was asleep on the couch and was
hard to rouse. Mother told the officers that she was working with DCF, but "they'd been
no help at all." Mother admitted that she knew that H.C. could climb up on furniture and
open the door to get outside.
On October 24, 2017, the State of Kansas filed a petition alleging that H.C. was a
Child in Need of Care (CINC) based on the claim that he was "without the care or control
necessary for the Child's physical, mental or emotional health" and that he "has been
physically, mentally or emotionally abused or neglected or sexually abused." The State
alleged that an emergency existed which threatened the safety of the child.
On December 20, 2017, the court ordered informal supervision for 180 days with
the following conditions: (1) the parents were to cooperate with family preservation
services; (2) the parents should enroll H.C. in Bright Beginnings; and (3) the parents
should take H.C. to a pediatrician, follow dietary recommendations, and secure the house
so that H.C. could not escape.
On March 13, 2018, the State filed CINC petitions involving R.H. and I.C. after
DCF deemed that the parents' progress with family preservation services was inadequate.
In its petition, the State alleged that an emergency existed which threatened the safety of
the children. According to school records, R.H. had missed 16 days of school and had
fallen behind. DCF noted concerns about the cleanliness of the household, including a
broken sewer pipe in the basement which allowed raw sewage to dump directly into the
basement. The case plan included Mother and Father working with the Strengthening
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Families Program, attending family therapy, and obtaining employment to meet their
financial needs.
On March 14, 2018, the court held a temporary custody hearing. All three children
were removed from Mother's and Father's custody and placed in the custody of DCF. In
its order, the district court noted that an emergency existed which threatened the safety of
the children as follows: "House stinks of sewage from broken pipe in basement, &
parents just received $21,000 settlement. House crawling with cockroaches."
DCF placed R.H. with her uncle. DCF had trouble finding a placement for the
boys because neither H.C. nor I.C. could speak clearly, they were not potty trained, they
could not dress themselves, and they did not use utensils to eat. H.C. and I.C. were both
very overweight, they would not willingly take baths, and they needed IEPs for school.
During temper tantrums, the boys would hit their caretakers and hit each other.
On April 13, 2018, Saint Francis Ministries (SFM), the contracting agency for out-
of-home placement for DCF, filed its report with the court. SFM was to assist Mother and
Father in the reintegration process. A court-ordered case plan was developed for both
parents to work towards reintegration with their children. The court assigned Mother and
Father the following tasks to work toward that goal:
• complete mental health evaluations;
• follow through with the recommendations from the mental health
evaluations;
• complete a parenting class and provide a certificate of completion;
• complete a parenting evaluation;
• complete a budget;
• develop an "expectations and consequence chart" for each child;
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• demonstrate that Mother and Father can follow through on the consequence
chart;
• develop a healthy meal plan for the children;
• keep the children supervised at all times during visits;
• not associate with anyone known for gang affiliation, criminal activity, or
drug users;
• get estimates from three different plumbers in the area;
• have the plumbing and pipes in the home repaired;
• clean up all trash and feces in the home; and
• maintain a clean, safe, and stable home.
On April 25, 2018, the parents stipulated to H.C. and I.C. each being a CINC. The
court adjudicated each of the three children to be a CINC. R.H.'s father did not appear at
this hearing or at any time during these proceedings.
On August 9, 2018, the court held a review hearing. According to SFM, Mother
and Father had attended a case planning conference prior to adjudication, and they were
attending a parenting class as ordered. But the majority of their tasks had not been
completed. They remained unemployed and had not completed mental health evaluations.
Moreover, there were a number of ongoing concerns with the condition of the home,
including the unrepaired sewer line. Due to a lack of progress, DCF recommended that
the permanency goal should be changed to a dual goal of reintegration and adoption, and
the court adopted that recommendation.
On November 14, 2018, the court held another review hearing. According to SFM,
Mother and Father made some progress on the case plan tasks. They completed mental
health evaluations and parenting classes, they created a chores chart for the members of
the household, and the sewer line in the house had been repaired. But they were allowing
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two men to live in the home who had not completed background checks. DCF believed
that the parents were not being truthful when they said there were no other people living
in the home other than the grandmother. Each time staff knocked on the door to the
home, there was an extended period of time before the door was answered. At a home
visit in August 2018, a SFM staff member waited in a car positioned so that she could see
the backdoor to the house. When DCF and SFM staff knocked on the front door, she saw
two young men come out the backdoor and leave the house. During a home visit in
October 2018, a man was found hiding in a closet underneath a comforter. In addition,
the home was still not clean and safe. The floor had not been restored after the sewer
repairs, and the furnace was not working.
The SFM case manager's report noted that the case had been ongoing for eight
months with some progress by the parents; but due to the tender age of the children, the
permanency goal should be changed to adoption because reintegration was no longer
possible. The Court Appointed Special Advocate (CASA) volunteer's report largely
agreed with the SFM report. The CASA volunteer noted that the home conditions were
still not safe for visitation with the children and concluded that reintegration was no
longer viable. At the conclusion of the hearing, the court found that the permanency plan
should remain with the dual goal of reintegration/adoption. The district court instructed
both SFM and the CASA volunteer to inspect the home and provide the parents with a
written list of continuing safety concerns about the home.
On February 13, 2019, the district court again reviewed the matter. The court
ordered that a new case planning conference be held in order to take into account the
results of the recently completed psychological evaluations of the children.
On February 20, 2019, the new case planning conference took place. New tasks
were added for the parents, including: placement of alarms on the doors of the home,
participation in counseling with a focus on parenting cognitively delayed children,
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random home visits, and revision of menus based on nutritional guidelines provided by
SFM.
On February 27, 2019, the court held a permanency hearing. The court ordered an
additional task that the parents undergo psychological evaluations based in part on
recommendations in the children's psychological reports. The court found that
reintegration was still viable, and the parents had completed most of their case plan tasks.
On April 7, 2019, unsupervised weekly visits with Mother and Father began. But
on this first unsupervised visit H.C. cut himself with a knife after being allowed to use it
to cut sausages. Mother characterized it as "just a scratch." H.C.'s foster parents took him
to the doctor the following day, and the doctor said that the cut should have had stitches
at the time of the injury. SFM stopped visitation while they investigated the accident.
Visits resumed again on May 5, 2019, but the visits were monitored.
On June 12, 2019, the court held another review hearing. SFM noted continued
concerns, including: (1) the furnace remains broken and the parents are using space
heaters throughout the home; (2) it appears that another individual is living in the home;
(3) Mother and Father are argumentative about completing their psychological
evaluations; (4) Mother and Father have purchased a locking alarm system, but it has not
yet been installed; (5) the house has an odor of cat urine and feces; and (6) the accident
with H.C. and the decision to give him a knife is an example of the parents' inability to
make wise decisions in parenting the children. The CASA volunteer's report also noted
concerns about the parents' refusal to complete psychological evaluations and their
inability to maintain a clean, safe, and stable home. Following this review hearing, the
court found that reintegration may no longer be viable, and the case plan goal was
changed to adoption/permanent custodianship.
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On September 24, 2019, Mother filed her psychological evaluation with the court.
Father filed his on October 18, 2019.
The Termination Proceedings
On September 24, 2019, the State moved to terminate the parental rights of
Mother and Father to H.C. and I.C. The State asserted numerous factors of unfitness
which it claimed were applicable to Mother and Father, and that their conduct was
unlikely to change in the foreseeable future:
• A presumption of unfitness should apply because the children had been in
an out-of-home placement, under court order, for a cumulative total period
of one year or longer, and the parents substantially neglected or willfully
refused to carry out a reasonable plan, approved by the court, directed
toward reintegration of the children into the parental home (see K.S.A.
2020 Supp. 38-2271([a][5]);
• Failure of reasonable efforts made by appropriate public or private agencies
to rehabilitate the family (see K.S.A. 2020 Supp. 38-2269[b][7]);
• Lack of effort on the part of the parent to adjust their circumstances,
conduct, or conditions to meet the needs of the children (see K.S.A. 2020
Supp. 38-2269[b][8]);
• Failure to assure care of the children in the parental home when able to do
so (see K.S.A. 2020 Supp. 38-2269[c][1]);
• Failure to carry out a reasonable plan approved by the court directed toward
the integration of the children into the parental home (see K.S.A. 2020
Supp. 38-2269[c][3]); and
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• Failure to pay a reasonable portion of the cost of substitute physical care
and maintenance based on ability their ability to pay (see K.S.A. 2020
Supp. 38-2269[c][4]).
Father had an additional reason in the petition for the termination of his
parental rights:
• Failure to maintain regular visitation, contact, or communication with the
children or with the custodian of the children (see K.S.A. 2020 Supp. 38-
2269[c][2]).
The State asserted that because these factors were not likely to change in the
foreseeable future, it was in the best interests of the children that the parental rights of
Father and Mother be terminated.
On November 25, 2019, the court began the hearing on the State's termination
petition. The hearing included testimony from DCF social worker Jodi Inguanza, SFM
family support worker Fermina Perez, and SFM case manager Elizabeth Crosswhite. The
SFM reports spanning the time the children had been in out-of-home placement were
admitted into evidence. The most recent report indicated that the parents had completed
the tasks ordered by the district court.
Perez, the assigned SFM family support worker, testified that when the children
were removed from the home in March 2018, she had difficulty placing them because of
their behaviors, including the lack of potty training, hitting their caregivers, and explosive
temper tantrums. The children could not speak clearly, would not use utensils to eat,
refused to take a shower or bath, and could not dress themselves. It took Mother and
Father five to six months to begin on their case plan tasks, but the parents eventually
completed them. Since attending parenting classes, Mother and Father were more
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interactive with their children. The children appeared to have a strong bond with their
Mother, more so than with their Father. But the children talk to and play with their Father
during visits.
Crosswhite, the SFM case manager, testified that she had doubts about the parents'
ability to parent the children. Her concerns included: (1) the parents' apparent inability to
potty train I.C. and H.C.; (2) Mother giving H.C. a knife to help with cooking tasks,
resulting in his injury; (3) people coming in and out of the home frequently; (4) the
furnace being broken; (5) H.C. playing with the space heater and sticking his fingers into
the part of the heater where he could get burned; and (6) Mother picking up cat feces and
then feeding the children without washing her hands.
The testimony of Inguanza was consistent with the testimony of the other
witnesses and with the allegations in the petition. The hearing could not be completed on
November 25, 2019.
The hearing resumed on July 13, 2020. Crosswhite continued her earlier
testimony. She opined that the parents had not worked hard on their case plan tasks and
it took them a long time to complete them. Moreover, Father delegated some of their joint
tasks to Mother, such as creating a budget and a consequence chart, without participating
himself. In Crosswhite's view, reintegration was not viable partially due to the lack of
cleanliness of the home. When she visited the home in March 2020, the toilet was not
working, the house had an odor of cat urine, the parents prioritized purchasing a Nintendo
Switch game device and a new couch over necessary car repairs, and the parents were
unavailable for random home visits. Crosswhite recommended termination of the parents'
parental rights. She testified:
"I don't believe that the parents are ready to deal with the children's
developmental disabilities that they have. I don't believe that the cleanliness of the home
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is up to standard. And, I don't believe that there are—they are ever going to stop having
people come into the home that should not be there."
Inguanza, a child protection specialist with DCF, testified about similar concerns.
She noted that the parents lacked a sense of accountability and responsibility for their
situation. She noted the parents were often very defensive and defiant, and they argued
about what needed to be done. Inguanza testified:
"[B]ased on my observations with the parents, they struggle in putting the children's
needs first over their own. Often times, it was apparent that the parents were still sleeping
when you would go to the home, and it would be almost noon . . . and the kids were up
and not being supervised while the parents were sleeping."
Dr. Lori Hertel, a psychologist at Serenity Psychological Services, conducted
psychological evaluations on both parents in September 2019. She diagnosed Mother
with an unspecified personality disorder with antisocial and obsessive-compulsive
features and a history of attention deficit hyperactivity disorder. Mother's IQ was below
average. Mother had difficulties in communication and had abnormalities in her thought
processes. Hertel testified these problems would cause Mother difficulty in the day-to-
day parenting of her developmentally delayed children.
Dr. Hertel diagnosed Father with an unspecified personality disorder with
paranoid and obsessive-compulsive features, as well as a history of substance abuse.
According to Hertel, these personality disorders are very difficult to treat. Hertel was
concerned about Father's somatic symptoms, which can result in irritability, depression,
and thoughts of suicide. She opined that these somatic symptoms would make it difficult
for Father to parent his developmentally delayed children.
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At the close of the State's case, the parents moved for judgment as a matter of law
based on the lack of sufficient evidence to support the State's claims. The court denied
the motion.
Mother called Janese Boger to testify. Boger is a therapist and social worker who
began working with Mother in August 2018 and with Father in July 2019. She testified
that the parents regularly attended her scheduled therapy sessions. Boger believed they
are capable of parenting the children with support. She testified that the family would
benefit from community-based services at the mental health center in Dodge City where a
caseworker could provide in-home services including attendant care, respite care, and
weekly therapy. She testified that the parents wanted their children back in the home. She
believed the children could be reintegrated into the home, would benefit from family
therapy, and would be safe in the home if they had the proper support.
Dana Schatz, a Triple-P (Positive Parenting Program) coach, testified as to
Mother's and Father's involvement in the parenting program. Schatz began working with
the parents in May 2019. Since then she has had three in-person visits with the family and
one by video. According to Schatz, the home was clean during her three visits, and the
parents appeared to be using the strategies and techniques that they learned in the
parenting program. Schatz provided the parents with a level of instruction specifically for
children with developmental delays. Schatz thought these parents had not been given a
fair opportunity to show that they could parent their children.
The hearing was continued further to allow the guardian ad litem (GAL) to meet
with the children and to give the court the opportunity to interview the children.
On September 24, 2020, the court held the concluding session of the hearing. At
that time, the State moved to reopen its case-in-chief due to major changes in the parents'
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situations and "a total disintegration of the family." The court granted the motion. Before
proceeding with new evidence, the judge met with the children and the GAL in chambers.
When the hearing reconvened, Mother testified that on August 4, 2020, she had a
domestic incident with Father during which he broke a window out of her car. As a result,
Mother moved out of the house to stay with her brother in Hutchinson. At the time of this
final hearing, Mother was living in a motel in Hutchinson with her new boyfriend whom
she had been dating for a month. Mother was unemployed, though she was receiving
unemployment benefits. Her boyfriend was paying part of the charges for her motel
room. She had an interview scheduled with a temp agency, and she hoped she would be
able to rent a three-bedroom trailer home that would be available on October 1, 2020.
According to Mother, her new boyfriend would not be living with her, and she would
request a background check on him before she would allow him to be around the
children. She opined that she and Father could coparent the children in spite of these
recent events.
With respect to Father, he remained in the marital home in Dodge City after this
domestic incident. He told Mother that he was going to kill himself by jumping off a
bridge. As a result, he was admitted to Larned State Hospital for four days where he was
diagnosed with depression. He testified that he hoped to reconcile with Mother after they
were both healthy. He was not ready to take the three children into his home because he
needed to get financially fit and improve his mental health. He opined that the children
would be better off with Mother, and he hoped to work out a visitation and parenting plan
in order for him to help parent the children.
At the conclusion of the hearing, the court acknowledged the strides Mother and
Father had made but noted that two years was a long time for the children to be without a
stable and safe environment. The district court expressed concerns with the recent
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separation and move, their lack of employment, and the fact that neither parent was in an
immediate position to take care of these three children.
The district court terminated Mother's and Father's parental rights to the children,
finding Mother and Father to be unfit by reason of their conduct or conditions which
rendered them unable to care properly for the children. 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 parents' motion at the close of the State's case, the State effectively
abandoned the presumption and ultimately did not ask the district court to make that
finding. The district court did not apply the presumption but instead found that the factors
of unfitness set out against Mother and Father were supported by clear and convincing
evidence and that the circumstances and conduct of the parents were unlikely to change
in the foreseeable future. Finally, the court found that termination of parental rights was
in the best interests of the children. Father's appeal brings the matter to us.
ANALYSIS
Father argues that the district court erred by terminating his parental rights because
there was not clear and convincing evidence to support the finding that he was unfit and
that his unfitness was unlikely to change in the foreseeable future. He also claims the
district court erred by applying a presumption of unfitness. He asks that we reverse the
termination order and remand for further proceedings.
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." In re Adoption of C.L., 308 Kan. 1268, 1279, 427 P.3d 951 (2018). 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
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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). Thus, the district court may terminate
parental rights only if it makes three findings: (1) clear and convincing evidence
establishes that the parent is unfit by reason of conduct or conditions which renders the
parent unable to care properly for the child; (2) the conduct or condition that makes the
parent unfit is unlikely to change in the foreseeable future; and (3) terminating the
parental rights is in the best interests of the child. K.S.A. 2020 Supp. 38-2269(a), (g)(1);
In re D.H., 54 Kan. App. 2d 486, 488, 401 P.3d 163 (2017).
K.S.A. 2020 Supp. 38-2269(b) provides a list of nonexclusive factors a court shall
consider in determining unfitness. The court must also consider a separate list of
nonexclusive factors when a child is not in the parents' physical custody, which is the
case here. 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 determining whether the district court's findings are supported by clear and
convincing evidence, we determine whether the evidence, viewed in the light favoring the
State, could have convinced a rational fact-finder that the facts found by the district court
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).
A court considering termination of parental rights must also "consider whether
termination of parental rights . . . is in the best interests of the child" by focusing on the
child's physical, mental, and emotional needs. K.S.A. 2020 Supp. 38-2269(g)(1). "If the
physical, mental or emotional 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).
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With these standards in mind, we turn to the merits of Father's appeal.
Father stipulated that the children were in need of care, and he does not dispute
that on appeal. His claim is that the State failed to present clear and convincing evidence
that he was unfit because he had completed the case plan tasks assigned to him. He also
claims that the State failed to show that his circumstances were unlikely to change in the
foreseeable future.
Here, the State presented extensive evidence on two of the statutory factors to
prove that Father was unfit: (1) failure of reasonable efforts made by appropriate public
or private agencies to rehabilitate the family (K.S.A. 2020 Supp. 38-2269[b][7]); and (2)
lack of effort on the part of the parent to adjust the parent's circumstances, conduct, or
conditions to meet the needs of the children (K.S.A. 2020 Supp. 38-2269[b][8]). Because
the children were not in Father's physical custody, the State also presented evidence in
support of these additional factors: (1) failure to assure care of the child in the parental
home when able to do so (K.S.A. 2020 Supp. 38-2269[c][1]); and (2) 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]).
Since May 2015, Kansas agency workers have been involved with this family on
numerous occasions and well before the first CINC case was filed in October 2017.
While Father worked with family preservation services after the CINC case was filed,
several witnesses testified that he was slow to start his assigned tasks and often took
months to complete them. He resisted tasks, especially the court-ordered psychological
evaluation.
Although Father eventually completed his assigned tasks, he was involved in a
domestic incident with Mother in August 2020, which resulted in Mother moving out of
the marital residence. In addition, he was hospitalized at Larned State Hospital for four
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days for evaluation after expressing suicidal ideation and he was once again unemployed.
At the termination hearing, Father testified that he was unable to provide an immediate
stable and suitable home for his children due to his financial and mental health issues.
The district court specifically noted Father's testimony, stating: "I appreciate your
honesty when you tell me that you know financially, emotionally, mentally you're not in
a place to be able to have these kids back." Accordingly, the evidence strongly supports
the district court's conclusion that reasonable agency efforts toward reintegration had
failed, that Father was unable to adjust his circumstances to meet the children's needs,
that Father failed to assure care of the child in the parental home when able to do so, and
that Father had failed to carry out a reasonable court-approved plan aimed at
reintegration.
In making its decision, the district court acknowledged that the children had been
out of the home since March 2018 and remained in out-of-home placement throughout
the case, including at the time of the final termination hearing in September 2020. They
needed a permanent and stable home. But at the time of the final hearing, Father did not
have a clean, stable, and safe home to provide for his developmentally delayed children.
He was unemployed, had recently been hospitalized for mental health issues, and
acknowledged that he was not able to safely care for his children at that time. Though
Mother's therapist testified that the parents would be capable of caring for the children in
their home if they had extensive support from community-based services, agency
employees who assisted the family expressed serious concerns about the parents' ability
to parent these children.
The district court determined that Father's unfitness was not likely to change in the
foreseeable future. The district court recognized that the passage of time viewed from the
perspective of a small child must be considered in its decision. "[A] child deserves to
have some final resolution within a time frame that is appropriate from that child's sense
of time." In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237 (2008). Kansas measures
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this time "from the child's perspective, not the parent['s], as time perception of a 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).
There is no set amount of time that constitutes the "foreseeable future." 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
parent's past conduct—as the district court did in this case—as indicative of future
behavior. In re K.L.B., 56 Kan. App. 2d 429, 447, 431 P.3d 883 (2018).
The court pointed out that these proceeding had lasted over two years, and over
that period the parties' circumstances had not changed for the better. They had, in some
important respects, gotten worse. At the time of the final hearing, the parents were
separated and neither parent was employed. Mother was living in a motel, which she
could not pay for on her own and she could not assure the court that she could provide a
stable home for the children. Father recognized that he was not ready to assume custody
of the children. At the time of the hearing, Father did not have a reasonable plan for
reintegrating the children into a family home. In fact, he had no clean, safe, and stable
home for the children. See K.S.A. 2020 Supp. 38-2269(b)(8). He stated that the children
would be better off with Mother. It was clearly apparent that Father was unable to adjust
his circumstances, conduct, or conditions to meet the needs of H.C. and I.C. See K.S.A.
2020 Supp. 38-2269(b)(8). Moreover, viewing the evidence in a light favoring the State,
we find clear and convincing evidence to support the district court's findings that Father's
unfitness was unlikely to change in the foreseeable future.
Once the district court found that Father was unfit and unlikely to change in the
foreseeable future, it had to determine whether termination of parental rights is in the best
interests of the children. K.S.A. 2020 Supp. 38-2269(g)(1). The statute provides that in
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making that determination, the court must give primary consideration to the physical,
mental, or emotional health of the children. K.S.A. 2020 Supp. 38-2269(g)(1). The court
had to weigh the benefits of permanency for the children without the presence of a parent
against the continued presence of the parent and the attendant issues thereby created in
the lives of the children. The court also had to consider the relationship between Father
and these children and the trauma that may be caused by termination. See In re K.R., 43
Kan. App. 2d 891, 904, 233 P.3d 746 (2010)
The determination of the best interests of the child is entrusted to the district
court's sound judicial discretion. In re M.S., 56 Kan. App. 2d 1247, 1264, 447 P.3d 994(2019); see In re K.R., 43 Kan. App. 2d at 903. 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. In re P.J., 56 Kan. App. 2d 461, 465-66, 430 P.3d 988 (2018).
In its ruling, the court addressed the parents directly, explaining to them what the
court was required to consider in making its decision. The court spoke of meeting with
the children earlier and the obvious trauma the children were experiencing. The court
noted the bond between the parents and the children. The court stated the best interests of
the children had to be considered, and that the children's greatest need was to be in a
stable, safe environment. The court considered the passage of time from the children's
perspective, and that consideration was in line with Kansas caselaw and the guidance the
Legislature provided in K.S.A. 2020 Supp. 38-2201(b)(4). Considering the evidence in
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 children's best interests.
A rational fact-finder could have found that delaying permanency would not be in the
best interests or these children.
Finally, Father complains that the State relied on the presumption of unfitness,
which would have put the burden on him to rebut that presumption. Under K.S.A. 2020
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Supp. 38-2271(a), a presumption of unfitness applies when certain conditions are present.
But the record shows that the State abandoned its presumption of unfitness. We find
nothing in the record supporting Father's argument that the district court erroneously
applied the presumption of unfitness. Rather, it appears that the district court correctly
proceeded solely under K.S.A. 2020 Supp. 38-2269, which does not contain a
presumption of unfitness.
Viewed in the light favoring the prevailing party—in this case the State—we find
clear and convincing evidence to support the district court's finding that Father was unfit
by reason of his conduct or circumstances, that his inability to care for these children was
unlikely to change in the foreseeable future, and that the termination of Father's parental
rights was in the children's best interests. Finally, there is no evidence that the district
court applied a presumption of unfitness in terminating Father's parental rights. We find
no errors in the district court's disposition of this case.
Affirmed.
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