In re J.K. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,829
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of
J.K., K.K., and L.G.,
Minor Children.
MEMORANDUM OPINION
Appeal from Rice District Court; STEVEN E. JOHNSON, judge. Opinion filed October 1, 2021.
Affirmed.
Richard Boeckman, of Boeckman Law Office, of Great Bend, for appellant natural father.
Remington S. Dalke, county attorney, for appellee.
Before ATCHESON P.J., BRUNS and ISHERWOOD, JJ.
PER CURIAM: Father appeals the decision of the Rice County District Court
terminating his parental rights to three children. Notwithstanding some procedural
wrinkles in the district court, we find sufficient evidence supported the determination
based on Father's failure to take any meaningful steps to meet the needs of the children
for more than a year after the State initiated this action. We, therefore, affirm the
termination order.
FACTUAL AND PROCEDURAL HISTORY
The children, all boys, were taken into emergency custody in late August 2019
based on obvious signs of neglect. At the time, L.G. was about five years old; K.K. was
about four years old; and J.K. was about two years old. L.G. had not been picked up at
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the end of the school day, so someone at the school contacted the authorities. A sheriff's
deputy responded and saw that L.G. appeared to be unkempt and wore ill-fitting clothes
and shoes. A family friend took L.G. home. The deputy and a caseworker from the
Kansas Department for Children and Families went to Father and Mother's house. Neither
was there. The children had been left in the care of a man the deputy knew to be a drug
abuser, and he appeared to be under the influence at the time. K.K. and J.K. had
numerous bug bites and what appeared to be dog bites. L.G. also had bug bites. The
house was strewn with trash and other debris. Father and Mother kept 14 dogs at the
residence.
The State filed child in need of care cases for each of the boys on September 3,
2019. The children were placed in DCF custody. And the children were adjudicated to be
in need of care on October 30, 2019. The cases have been consolidated for proceedings in
the district court and on appeal. A local social service agency set up a family
reintegration plan outlining various tasks for Father and Mother to assess their needs,
including mental health and substance abuse issues, and to improve their coping and
parenting skills. Evidence introduced at the termination hearing indicated Father did
nothing concrete to accomplish those tasks for the rest of the year and into early January
2020. He had three positive tests for methamphetamine during that time. A home
inspection in the fall of 2019 showed the residence to be in disrepair. Father told the
caseworker he was in the midst of remodeling. Because Father continued to test positive
for drugs, he was not permitted to visit the children. Father and Mother missed meetings
with their assigned case workers and did not keep in touch with the social service agency
as required.
In early January 2020, Father's probation for a felony conviction was revoked, and
he was first held in the Rice County jail and later in prison to serve his sentence.
Although Father appeared with his appointed lawyer at the termination hearing in January
2021, he had not yet completed the sentence.
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While in custody, Father did nothing to accomplish any of the reintegration plan
tasks. The assigned caseworkers agreed that pandemic protocols limited Father's access
to some counseling and other services but did not foreclose all avenues for progress.
During his incarceration, Father had neither visits nor written or oral communication with
the children.
The State filed a motion in September 2020 to terminate the parental rights of
Father and Mother. The district court held a termination hearing on January 15, 2021.
Shortly before the hearing, Mother voluntarily relinquished her parental rights. She is not
a party to this appeal. In the same vein, Father likely is not the natural parent of L.G. and
never legally adopted the child. So he probably has no parental rights to terminate with
respect to L.G.—a point of abstract interest but one that has no practical effect on our
determination of the case.
At the termination hearing, the sheriff's deputy and several caseworkers, among
others, testified as witnesses for the State. Their testimony established what we have laid
out so far. The State also requested that the district court take judicial notice of four
consolidated child in need of care cases in Sedgwick County District Court involving
other children of Father's. Over Father's objection, the district court took judicial notice of
the order entered in those cases on January 8, 2020, finding Father unfit and terminating
his parental rights. The State proffered copies of the Sedgwick County order to the
district court and the lawyers, but the document was not marked or received as an exhibit
and did not become part of the district court record. The State later requested the order be
made part of the district court record, and Father filed a written objection to the request.
The order was added to the district court record and is part of the record on appeal.
At the termination hearing, Father testified in opposition to the State's motion and
told the district court he would be released from prison in May 2021. He predicted he
would need another 90 days to make suitable arrangements to take physical custody of
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L.G., K.K., and J.K. Father told the district court he is a trained mechanic and had owned
a business with another man. Father testified his former business associate would take
him back and help him secure suitable housing for the children. Father's benefactor did
not testify at the hearing, and Father provided nothing corroborating the offer of
assistance.
Father testified he had abused methamphetamine years earlier and relapsed in the
fall of 2019. He told the district court he had been drug-free while he was in custody and
could maintain his sobriety upon his release. Father explained he was aware of the other
child in need of care cases that had originated in Republic County and were transferred to
Sedgwick County. He told the district court he did not know about the termination
hearing in January 2020 or that he had an appointed lawyer after the cases had been
moved to Sedgwick County. Ultimately, Father told the district court he wanted a chance
to pursue reintegration with L.G., K.K., and J.K. and wished to be a father to the children.
On January 21, 2021, the district court filed what it characterized as a
memorandum opinion that touches on the evidence and mentions factual circumstances
that could support termination without citing to specific provisions of the Revised Kansas
Code for Care of Children, K.S.A. 38-2201 et seq., delineating recognized statutory
grounds for termination. The memorandum order mentions Father's drug use, his lack of
effort in undertaking any tasks in the reintegration plan, and the statutory presumption
arising from a parent having been found unfit in an earlier action. See K.S.A. 2020 Supp.
38-2269(b) (statutory grounds supporting unfitness); K.S.A. 2020 Supp. 38-2271(a)(1)
(presumption of unfitness). The district court also stated Father's unfitness was unlikely
to change in the foreseeable future and the children's best interest would be served by
termination. The district court, however, did not mention what burden of proof it applied
in making those determinations. The district court directed the State to "draft a journal
entry of final termination."
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The State prepared and the district court then signed and filed on January 28,
2021, a document entitled Findings of Unfitness and Order Terminating Parental Rights
that incorporates a template prepared by the Kansas Judicial Council. In that order, the
district court cites two bases for finding Father unfit: (1) the failure of reasonable efforts
of a public agency to rehabilitate the family, as provided in K.S.A. 2020 Supp. 38-
2269(b)(7); and (2) the lack of effort on part of Father to his adjust circumstances to meet
needs of the children, as provided in K.S.A. 2020 Supp. 38-2269 (b)(8). The order recites
the State has satisfied its burden to prove those grounds by the clear and convincing
evidence. And the order finds Father's unfitness is unlikely to change in the foreseeable
future and termination is in the children's best interests. Father has appealed.
LEGAL ANALYSIS
Before turning to the specific points Father has raised on appeal, we outline
relevant legal principles governing the termination of parental rights under Kansas law. A
parent has a constitutionally recognized right to a parental relationship with his or her
child. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008) (citing Santosky). The
right is a constitutionally protected liberty interest. See Troxel v. Granville, 530 U.S. 57,
65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (fundamental liberty interest); Pierce v.
Society of the Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925)
(recognizing "the liberty of parents and guardians to direct the upbringing and education
of children under their control"). Accordingly, the State may extinguish the legal bond
between a parent and child only upon clear and convincing proof of parental unfitness.
K.S.A. 2020 Supp. 38-2269(a); Santosky, 455 U.S. at 769-70; In re R.S., 50 Kan. App. 2d
1105, Syl. ¶ 1, 336 P.3d 903 (2014).
After a child has been adjudicated in need of care, a district court may terminate
parental rights "when the court finds by clear and convincing evidence that the parent is
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unfit by reason of conduct or condition which renders the parent unable to care properly
for the child and the conduct or condition is unlikely to change in the foreseeable future."
K.S.A. 2020 Supp. 38-2269(a). In considering a parent's unfitness, the district court may
apply the factors outlined in K.S.A. 2020 Supp. 38-2269(b) and, when the child has been
removed from the home, the additional factors in K.S.A. 2020 Supp. 38-2269(c). The
district court may also turn to any of the 13 statutory presumptions in K.S.A. 2020 Supp.
38-2271 to prove unfitness. The statutory factors are not exclusive, and a single ground of
unfitness is legally sufficient to terminate parental rights. See In re K.J.S., No. 122,042,
2020 WL 2296913, at *3 (Kan. App. 2020) (unpublished opinion) ("The district court
may consider nonstatutory grounds demonstrating parental unfitness."); K.S.A. 2020
Supp. 38-2269(b) (district court "not limited to" statutory factors in finding parent unfit);
K.S.A. 2020 Supp. 38-2269(f) (single statutory factor may be sufficient for termination).
In gauging the likelihood of change in the foreseeable future under K.S.A. 2020
Supp. 38-2269(a), the courts should use "child time" as the measure. As the Code
recognizes, children experience the passage of time in a way that makes a month or a
year seem considerably longer than it would for an adult, and that difference in
perception typically tilts toward a prompt, permanent disposition. K.S.A. 2020 Supp. 38-
2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re G.A.Y., No.
109,605, 2013 WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion) ("'child time'"
differs from "'adult time'" in care proceedings "in the sense that a year . . . reflects a much
longer portion of a minor's life than an adult's").
When the sufficiency of the evidence supporting a decision to terminate parental
rights is challenged, an appellate court will uphold the decision if, after reviewing the
record evidence in a light most favorable to the State as the prevailing party, the district
court's findings on unfitness and foreseeability of change are supported by clear and
convincing evidence. Stated another way, the appellate court must be persuaded that a
rational fact-finder could have found it highly probable that the circumstances warrant the
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termination of parental rights. In re B.D.-Y., 286 Kan. at 705. In evaluating the record, the
appellate court does not weigh conflicting evidence, pass on the credibility of witnesses,
or determine factual questions. In re Adoption of B.B.M., 290 Kan. 236, 244, 224 P.3d
1168 (2010); In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014).
Although Father has not challenged the district court's best interests determination
on appeal, we mention the governing standard as a matter of completeness, since it differs
from the measure for unfitness. As directed by K.S.A. 2020 Supp. 38-2269(g)(1), the
district court should give "primary consideration to the physical, mental[,] and emotional
health of the child" in making a best interests finding. A district court decides best
interests based on a preponderance of the evidence. See In re R.S., 50 Kan. App. 2d at
1115-16. The decision essentially rests in the district court's sound judicial discretion. See
50 Kan. App. 2d at 1116. An appellate court reviews those sorts of conclusions for abuse
of discretion. A district court exceeds that broad latitude if it rules in a way no reasonable
judicial officer would under the circumstances, if it ignores controlling facts or relies on
unproven factual representations, or if it acts outside the legal framework appropriate to
the issue. See Biglow v. Eidenberg, 308 Kan 873, 893, 424 P.3d 515 (2018); Northern
Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106(2013).
On appeal, Father challenges the district court's January 21 memorandum order
ostensibly because it was not and could not have been incorporated into the January 28
findings and order terminating his parental rights. He also disputes the bases for unfitness
identified in the January 21 memorandum order. Father independently contends the
record evidence supports neither the two bases for unfitness the district court specifically
identified in the January 28 termination order nor that any unfitness would persist for the
foreseeable future.
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Father's procedural objection to the January 21 memorandum order misses the
mark. A final dispositive decision, whether characterized as an order or judgment, may
consist of more than one document. For example, in a civil case, a district court may
enter an order finding a defendant liable and a later order awarding damages. Together,
they compose a final, appealable judgment. See K.S.A. 2020 Supp. 60-254(b); see also
Virdanco, Inc. v. MTS, Intern., 791 P.2d 1236, 1238 (Colo. App. 1990). Similarly,
appellate courts may consider oral findings made from the bench as supplementing a
later, if abbreviated, written decision, as long as the two do not conflict. See Burcham v.
Unison Bancorp, Inc., 276 Kan. 393, 402, 77 P.3d 130 (2003); Jobe v. Jones, No.
121,345, 2020 WL 6533286, at *2 (Kan. App. 2020) (unpublished opinion), rev. denied
313 Kan. 1041 (2021). Here, the district court's January 21 memorandum was akin to a
bench ruling directing the prevailing party to prepare a final judgment. Contrary to
Father's suggestion, the final order did not need to explicitly state it was incorporating the
earlier order by reference. On the whole, however, the better practice would call for a
single, comprehensive termination order. See In re I.A., No. 101,066, 2009 WL 863575,
at *1 (Kan. App. 2009) (unpublished opinion).
Nonetheless, we decline to consider the grounds for unfitness the district court
alluded to in the January 21 memorandum order that were not later explicitly identified in
the January 28 findings and order of termination. We do so because the January 21
memorandum fails to identify the required burden of the proof—here, clear and
convincing evidence—the district court applied to the evidence. When a party fails to
object to a district court's findings and conclusions, we may assume the district court has
"found all facts necessary to support the judgment." Southern Star Central Gas Pipeline,
Inc. v. Cunning, 37 Kan. App. 2d 807, 817, 157 P.3d 1120 (2007). Likewise, we typically
presume a district court has applied the correct burden of proof absent a contrary
showing. State v. Gideon, 257 Kan. 591, 615, 894 P.2d 850 (1995); Hildenbrand v.
Avignon Villa Homes Community Association, Inc., No. 120,245, 2021 WL 137339, at *6
(Kan. App. 2021) (unpublished opinion).
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We depart from those usual rules because the burden of proof here is more
stringent than the usual civil standard. And it gives us pause to presume the district court
applied an uncommon, though legally required, standard when the January 21
memorandum order contains no such recitation. Our discomfort escalates because the
district court's ultimate decision irrevocably terminated a fundamental right and a
constitutionally shielded relationship between parent and child. We, therefore, confine
our review to the two statutory grounds of Father's unfitness the district court expressly
identified in the January 28 findings and order of termination. That order explicitly states
and imposes the clear and convincing burden of proof on the State. We have additional
reservations about the district court's reliance on the Sedgwick County District Court
termination order and the statutory presumption of unfitness in K.S.A. 2020 Supp. 38-
2271(a)(1), but they subsumed in our broader decision to rely on only the January 28
findings and termination order.
The bases for unfitness outlined in K.S.A. 2020 Supp. 38-2269(b) and (c) tend to
overlap and in many cases the same facts will support more than one. We nominally
discount Father's unfitness under K.S.A. 2020 Supp. 38-2269(b)(7) related to the failure
of a reasonable plan for family rehabilitation and reintegration. We do so not because we
perceive any shortcomings in the plan or the social service agency's efforts that were
within its control. But the testimony showed that those efforts were in some ways
curtailed because of various pandemic protocols, particularly ones imposed by the
correctional facilities where Father was confined from early January 2020 on. We see this
as a concession to Father that he probably should not get as a strict legal matter but which
we make more by way of giving him every consideration.
Turning to the ground of unfitness outlined in K.S.A. 2020 Supp. 38-2269(b)(8),
we find ample evidence to support the district court's finding that Father did not and
would not adjust his circumstances to meet the needs of the children. The evidence
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established Father undertook no substantive steps between September 2019, when the
State filed these proceedings, and January 2020, when he was jailed on the probation
violation, to reintegrate with the children to meet their overarching need for an intact,
functioning family unit. Father pursued none of the tasks the social service agency
identified for accomplishing that goal and essentially ignored the agency altogether.
Moreover, Father was actively using methamphetamine during that time and refused to
seek treatment. His drug abuse created a bar to any visitation with the children. Father's
limited contact with the social service agency showed that he and Mother had failed to
make their home suitable for the children during the fall of 2019. Father attributed the
condition of the dwelling to incomplete remodeling.
After Father was incarcerated, his apparent indifference continued. To be sure,
there was less Father could do behind bars to work on the reintegration plan. But, again,
the evidence shows he did nothing. Father had no contact in any fashion with L.G., K.K.,
and J.K. from late August 2019, when they were taken into protective custody, through
the termination hearing in January 2021, and he made no demonstrable effort to
reestablish any sort of contact with them.
In sum, the evidence supports the district court's conclusion, consistent with the
clear and convincing standard, that at the time of the termination hearing in January 2021
Father was unfit under K.S.A. 2020 Supp. 38-2269(b)(8).
On appeal, Father also argues the State presented insufficient evidence to show
that any condition of his unfitness would persist for the foreseeable future. We are
unpersuaded. At the termination hearing, Father testified he would be released from
prison about five months later. Essentially, he would have to start from scratch in
working on a monitored reintegration plan. Father estimated he would require three more
months to establish a residence and employment sufficient to take custody of the
children. But that was no more than wishful thinking. He offered nothing to back up his
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claimed access to work and suitable housing. He explained away his drug abuse in late
2019 as a relapse. But he presented no tangible evidence to suggest he wouldn't revert to
the same addictive behaviors upon his release. He had not completed a verified substance
abuse evaluation, let alone any sort of treatment.
Particularly taking account of child time; the ages of L.G., K.K., and J.K.; and
how long they had already spent in DCF custody; the district court fairly concluded
Father would not adapt his conduct to meet their needs and to parent them even at a
minimally competent level within the foreseeable future. The younger children, in
particular, had been wards of the State for a large portion of their lives. In short, a
reasonable fact-finder could conclude to a high probability that Father's unfitness would
persist for an extended period exceeding the foreseeable future for young children.
We briefly mention the district court's finding that the children's best interests
supported termination. Father does not contest the conclusion. We would review that
determination for abuse of discretion based on a preponderance of the evidence standard.
Here, it's far from clear Father ever adequately parented the children; he plainly wasn't in
late summer 2019. The children were obviously neglected when they were taken into
State custody. Father had no contact with the children for almost a year and a half after
that—through the termination hearing—and never even explored taking any steps to
reestablish contact with them. The children apparently have done reasonably well in their
DCF placements. Those circumstances dispel any possibility of reversible error on the
best interests requirement for termination.
Affirmed.
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