In re K.H. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,364
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of K.H., Z.H., AND L.H., Minor Children.
MEMORANDUM OPINION
Appeal from Sedgwick District Court, GREGORY D. KEITH, judge. Opinion filed May 29, 2020.
Affirmed.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before STANDRIDGE, P.J., LEBEN AND BRUNS, JJ.
PER CURIAM: Mother, A.H., appeals from the district court's order terminating her
parental rights to three children. Such rights may be terminated only in circumstances set
out by statute and only when clear and convincing evidence supports the termination. See
K.S.A. 2019 Supp. 38-2269.
Mother contends on appeal that the evidence wasn't enough for the district court to
terminate her parental rights and that no reasonable person could conclude that
terminating her rights was in the children's best interests. But termination is authorized
when a parent has shown a lack of effort to adjust his or her circumstances, conduct, and
condition to meet the children's needs, K.S.A. 2019 Supp. 38-2269(b)(8); when
reasonable efforts by public and private agencies to get the family back together have
failed, K.S.A. 2019 Supp. 38-2269(b)(7); and when a parent fails to carry out a
reasonable court-approved plan aimed at reintegrating the family, K.S.A. 2019 Supp. 38-
2269(c)(3).
Here, when the district court terminated Mother's parental rights, the children had
been in State custody (placed in foster homes) for 32 months—30 of those after the
children had been legally declared "children in need of care" under K.S.A. 2019 Supp.
38-2202(d), a finding Mother did not contest. Despite that, Mother denied that her
conduct needed to change to get the family back together, she was habitually late to
weekly visitations, and she did not work to foster a good relationship with her children.
And although the family had received extensive services from social-services agencies,
Mother failed to follow through with family therapy, individual therapy, or substance-
abuse treatment, as the family's case plan required.
We recognize that termination of parental rights is a serious matter. We have
reviewed the entire record, and we find clear and convincing evidence to support the
district court's findings that Mother was unfit as a parent and that the conditions leading
to that finding were unlikely to change in the foreseeable future. We also find that a
reasonable person could agree with the district court that terminating Mother's parental
rights was in the children's best interests. We therefore affirm the district court's
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cases like these are necessarily fact-driven, so the factual background must be
described in some detail. Mother has three sons: K.H. (born 2008), Z.H. (born 2009), and
L.H. (born 2011). K.H. and Z.H. have autism. The three boys have the same father, C.H.,
who died during these proceedings.
The Kansas Department for Children and Families first received reports about the
family in 2012. Those reports concerned the parents' mental health and the children's
education. Between November 2014 and November 2015, the department received 10
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reports of abuse or neglect of the boys, including a report that Father had attempted
suicide in the family home in October 2015 while the children were in the home. The
department also learned that the family had been investigated in Florida before moving to
Kansas.
By early December 2015, all three children had been placed in temporary State
custody. The parents did not contest the State's allegation that the three boys were
children in need of care under Kansas law, and the district court adjudicated them as such
under K.S.A. 2019 Supp. 38-2202(d)(1) (lacking adequate parental care), (d)(2) (lacking
care or control necessary for child's physical, mental, or emotional needs), and, for K.H.,
(d)(8) (child committed an act which if done by an adult would be a felony or
misdemeanor). The finding that the boys were children in need of care—which happened
in February 2016—is not at issue on appeal.
There is not much in the record before us about the first six months of 2016, but it
appears that the children were close to being reintegrated—by July, they were spending
five days of the week at home. But a turning point happened in July 2016, when Mother
and Father were in a severe car accident. Father died instantly; Mother was hospitalized
for several months.
After Mother was released from the hospital, the district court began holding
periodic hearings about how to proceed toward reintegration. Each time, the court
ordered the boys remain in State custody. Before each hearing, caseworkers at a social-
service agency, Saint Francis Community Services, prepared progress reports. Those
reports describe the events that prompted the State's motion.
In November 2016, Pheasant Weber, a Saint Francis caseworker, reported that
Mother was argumentative and uncooperative during her initial parenting assessment;
Mother also failed to appreciate that different parenting techniques were appropriate for
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children with autism. Weber noted that Saint Francis had struggled to work with Mother:
Mother refused to get a required mental-health evaluation, she struggled to set a
consistent structure or routine in the home, she refused to allow two of her children to
receive educational testing, and she was not appropriately addressing her children's
behavioral issues. Weber also said that school staff and therapists had raised concerns
about the children's unsupervised visits with Mother, saying the children had returned
dressed inappropriately, dirty, hungry, or overly tired. After this report, the district court
ordered Mother to engage in both individual therapy and family therapy with the boys.
In January 2017, Weber reported that little progress had been made and that her
working relationship with Mother was strained (the case was later transferred to another
caseworker). Weber said that Mother had refused to sign a plan outlining steps that she
needed to take to regain custody of her boys. Mother remained confrontational and
uncooperative, according to the report, and had told her children not to talk to Saint
Francis about visits at Mother's house. The report also said that Mother struggled to
parent her children during visits, spending most of the time on her cell phone and failing
to address her children's aggressive behavior.
A different Saint Francis caseworker, Alyssa McCarroll, took over Mother's case
the next month. Her initial assessment was that Mother's lack of transparency and her
inability to accept guidance was a barrier to reintegration. She worked with Mother to
develop a new plan to help make sure the children would have a safe and appropriate
home to return to. Tasks on that plan included beginning individual therapy and family
therapy with her children; allowing periodic walk-throughs of her home; providing
financial information; and not encouraging her children to behave poorly. Mother signed
the plan, acknowledging that failing to complete the tasks could lead to continued out-of-
home placement or the termination of parental rights.
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McCarroll did not note significant progress when she updated the district court in
June 2017. She said that Mother continued to resist guidance in parenting her children
and addressing mental health issues—for example, Mother hadn't followed through with
family therapy. McCarroll also said Mother continued to be inconsistent with keeping
appointments and following through with the various professionals involved. This report
also noted that Mother had recently become engaged to J.P., a man who had been living
in her house. Mother had posted on Facebook that he'd recently been using
methamphetamine while they were temporarily estranged. The district court entered
additional orders after this report. The court ordered J.P. to comply with the tasks in the
case plan, and it reiterated that Mother needed to go to family therapy with her children.
It also had Mother and J.P. submit to a urinalysis and hair-follicle test to screen for
narcotics; both tested positive.
For a time, things appeared to turn in the right direction for Mother after those
court orders. McCarroll's August 2017 report said that Mother was fixing up her house
for the boys' return and that Mother had been more cooperative and was making progress
on changes in her life. McCarroll concluded that Mother was adequately completing her
assigned court orders, thanks in part to substantial effort by Saint Francis staff. After that
report, the court ordered Mother to begin individual therapy again; apparently, she had
stopped that at some point.
Mother's progress did not continue. After Mother and J.P. both tested positive for
drugs more than once, the district court entered new orders in November 2017. The court
ordered both to comply with drug-testing requests, obtain a substance-abuse evaluation,
and follow any recommendations in it. The court also reiterated that Mother needed to
start individual therapy and that Mother and J.P. needed to start couples' therapy. Mother
did get a substance-abuse evaluation in early December 2017—testing positive for
methamphetamine in the process—but she didn't follow the evaluation's recommendation
of outpatient therapy.
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McCarroll reported in January 2018 that Mother continued to regress. She said
that Mother's behavior toward caseworkers had returned to being secretive and explosive.
McCarroll also addressed two other concerns. First, Mother and J.P. had been involved in
a domestic-violence situation, with each party alleging that the other was the aggressor.
And second, McCarroll said that Saint Francis had learned that Mother had been using
drugs throughout the case. Our record shows that Mother had tested positive for various
narcotics 10 times between April 2017 and February 2018, which is when the State
moved to terminate her parental rights.
In January 2018, workers involved in Mother's case met to determine whether to
stick with the goal of reintegration, which had been their recommendation until that time.
They concluded that it was time to change course and recommend adoption instead of
reintegration. Concerns noted during that meeting included the poor condition of the
home; Mother's continued drug use and failure to submit to drug tests; and the domestic-
violence situation between Mother and J.P. McCarroll's final report in February 2018 said
that little progress had been made in the case; McCarroll said that Mother was not being
transparent and that she had refused to follow a court order that she sign a release of
information relating to the July 2016 car accident that killed the boys' father.
In February 2018, the State moved to terminate Mother's parental rights. The
district court held a trial during which Mother, McCarroll, J.P., and other individuals
involved with the case testified. The trial was apparently originally expected to take one
day but ended up taking two—one in June and one in August 2018. We've organized the
relevant testimony by topic.
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Inconsistency during visitations
McCarroll testified about Mother's inconsistency during visits with her children.
She said at the first day of the trial that Mother has missed two of her scheduled
visitations with her children, rescheduled or sought to reschedule a couple visits, and
been late to almost all her visitations. At the second day of trial, McCarroll said that
Mother had been consistently 15, 20, or 30 minutes late to her weekly, hour-long
visitations. McCaroll said that Mother's inconsistency was a huge concern. If Mother
couldn't make it to appointments herself, McCarroll asked, how would Mother make sure
that her special-needs children got to therapy, treatment, and doctor's appointments?
Lack of secondary changes
McCarroll said that Mother had not made "secondary changes," which McCarroll
said meant taking responsibility and acknowledging that something is wrong, then
changing those aspects of your life. She said that there had been little secondary change
over the 30 months that the case had been open. She said that Mother did not accept
responsibility, still believed that her actions had not been wrong, and said that it was
Saint Francis' fault that she did not have her children back.
When Mother took the stand, she said that she had heard the concerns raised by
Saint Francis workers, but that their concerns were just their opinions. Mother said that
there was no reason that the kids should not be at home with her. She also said that Saint
Francis had not provided enough support and that Saint Francis and its staff, not Mother,
needed to change. She also accused the Saint Francis caseworkers of lying.
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Failure to complete family therapy
McCarroll testified about Mother's failure to complete family therapy. She said
that Saint Francis had originally recommended family therapy because staff members
were concerned about Mother inappropriately discussing the case during visitation and
the lack of bonding between the children and Mother. A Saint Francis clinician did a six-
session evaluation with Mother and the children and recommended the family participate
in a type of family therapy involving in-the-home parenting training. McCarroll said she
thought that would benefit Mother because Mother had struggled to parent her children
appropriately, especially her special-needs children. She said Mother continually gave in
to anything the kids requested.
McCarroll said she told Mother that Mother would need to contact the clinician to
set up the in-home training visits. McCarroll said Mother did not want to do the therapy.
McCarroll said that Mother needed to meet with the clinician to fill out forms, but that
Mother failed to show up for three or four meetings. After Mother said she that did not
trust the clinician, McCarroll said she offered three other clinicians, but Mother was not
willing to use them. McCarroll said that she discussed family therapy again in an email
conversation with Mother's attorney in May 2018 (one month before the first day of trial).
McCarroll reiterated that Mother needed to complete family therapy. McCarroll said that
she contacted the Saint Francis clinical director, but they said there was a six-week
waiting period and they didn't want to fill the waiting list with somebody who had failed
to comply.
Mother testified that she did not refuse to do family therapy. She said that she had
signed the paperwork but that the family therapy never started because the Saint Francis
clinician would not return her texts to schedule a meeting.
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Failure to complete individual therapy
According to McCarroll and Connie Mayes, Mother's therapist, Mother also failed
to complete individual therapy. McCarroll testified that Mother had done a psychological
evaluation and a parenting assessment, both of which had recommended individual
therapy. McCarroll said that when she took over the case in January 2017—more than a
year after the State assumed custody of the children—Mother had not done the individual
therapy.
McCarroll said she made another referral in November 2017 to Connie Mayes and
that Mother did an intake and started attending individual therapy. McCarroll said that
Mother consistently attended from at least December 2017 to February 2018, but then she
missed the entire month of May 2018. Mayes testified that Mother started doing
individual therapy in November 2017. She said they tried to schedule twice a week,
which sometimes worked, but that there were gaps when Mother wouldn't come. Of the
times that Mother missed, about half of them were cancellations and half were no-shows.
Mayes also said that in between the two trial dates, Mother had attended four
appointments and no-showed to five.
Failure to get substance-abuse treatment
Mother testified about getting a substance-abuse assessment and treatment. She
said that her first substance-abuse evaluation recommended outpatient treatment. She said
that she was admitted into an outpatient program called Seventh Direction but that she
stopped going after a week. Mother also said that she tried intensive outpatient therapy
but only for a couple of weeks. After that, Mother said, she had done no substance-abuse
counseling although her therapist had recommended it. Mother said she knew that getting
a substance-abuse evaluation was a top priority after the first day of trial in June 2018,
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but she hadn't done it by the second day of trial (held in August). Mother said that she
still planned on doing it.
Lorna Stoecklein, a substance-abuse counselor, also testified about Mother's
substance-abuse treatment. Stoecklein said that she met with Mother in April 2018 after
Connie Mayes referred Mother. Stoecklein said she recommended inpatient treatment,
but that Mother thought that would be too intense. Stoecklein said she also suggested
intensive outpatient therapy but that Mother thought that would cause her to miss
visitations. She said that they agreed to do sessions twice a week. At time of the second
day of trial in August, Stoecklein said that she had not had another session with Mother
after the one in early June. She said Mother had not followed up on recommendations for
outpatient treatment, inpatient treatment, or a 12-step program.
Saint Francis' efforts
McCarroll discussed the amount of effort she had expended on Mother's case.
McCarroll said she was there around the clock for Mother. She said that if Mother called
at 10 p.m., McCarroll would answer, and that if Mother contacted her at 2 a.m.,
McCarroll would return the call at 5:30 a.m. when she woke up. McCarroll said she had
made many referrals for Mother and would remind Mom to call people and follow up.
McCarroll said she had communicated with Mother four or five times per week. She also
said she had put in a lot of time on this case and tried to use all available resources.
McCarroll said that this one case had overwhelmed all her other cases.
Lack of progress between hearings
Finally, McCarroll testified about the lack of progress that Mother had made
between the two days of trial. McCarroll said that before the first day in June, she had
emailed Mother's attorney about ongoing concerns with the case. She said that she had
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raised these issues with the attorney: (1) Mother had not provided reliable income
information; (2) Mother had provided six addresses; (3) Mother was not following
through with drug testing; (4) Mother needed to do family therapy; (5) Mother needed to
be involved in her children's education; (6) Mother needed to get treatment; (7) Mother
needed to better manage her schedule; (8) Mother's communications were not always
accurate and consistent; and (9) Mother needed to encourage a relationship with her
children. McCarroll said she told Mother that it was fundamentally necessary to address
these problems. But McCarroll said she didn't feel like there was any progress on these
by the time the trial concluded in August. McCarroll said she didn't believe that Mom
was a fit parent.
After hearing all the evidence, the district court agreed and found that Mother was
an unfit parent. The court found that Mother was unfit because mental illness had
rendered her unable to care for the ongoing needs of her children, K.S.A. 2019 Supp. 38-
2269(b)(1); because her use of narcotics rendered her unable to meet the ongoing needs
of her children, K.S.A. 2019 Supp. 38-2269(b)(3); because reasonable efforts by
appropriate agencies had been unable to rehabilitate the family, K.S.A. 2019 Supp. 38-
2269(b)(7); because Mother had not made sufficient effort to adjust her circumstances to
meet the needs of the children, K.S.A. 2019 Supp. 38-2269(b)(8); and because Mother
had failed to carry out a reasonable plan approved by the court directed toward the
reintegration of children into Mother's home, K.S.A. 2019 Supp. 38-2269(c)(3).
The district court also concluded that these conditions were unlikely to change in
the foreseeable future. It noted Mother's regression since the previous fall and
emphasized that Mother had used methamphetamine just weeks before the trial began.
The court also noted that Mother had had 60 days between the two trial dates to get a
substance-abuse evaluation and submit to drug tests; despite knowing how important it
was to the case, the court said, Mother had failed to complete those tasks. All of this led
the court to conclude that Mother's behavior was unlikely to change going forward.
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Finally, the court determined that it was in the children's best interests to terminate
Mother's parental rights. The court didn't make any further explanation; instead, after
orally reciting the reasons that Mother was unfit and why that was unlikely to change for
the foreseeable future, the court said that it had considered the physical, mental, and
emotion health of the children and had concluded that termination of Mother's rights was
in their best interests.
Mother has appealed to this court the district court's order terminating her parental
rights to K.H., Z.H., and L.H.
ANALYSIS
We begin with the legal standards that guide our review. To terminate parental
rights, the district court must make three findings: (1) that the parent is unfit; (2) that the
conduct or condition making the parent unfit is unlikely to change in the foreseeable
future; and (3) that termination of parental rights is in the best interests of the child.
K.S.A. 2019 Supp. 38-2269(a), (g)(1).
The first two are factual determinations that must be supported by clear and
convincing evidence. On appeal, we must determine whether the evidence, taken in the
light most favorable to the State (since the fact-finder, the district court, found in its
favor), provided clear and convincing support for the district court's factual findings. The
test is whether a rational fact-finder could have found the facts highly probable based on
the evidence. In re Adoption of C.L., 308 Kan. 1268, 1278-79, 427 P.3d 951 (2018).
The third determination—that the termination of parental rights is in the child's
best interests—is a discretionary judgment call. On appeal, we review that determination
for abuse of discretion. A district court abuses its discretion when no reasonable person
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would agree with its decision or when the decision is based on a legal or factual error.
State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 60, 392 P.3d 68 (2017).
The district court's finding that Mother was presently unfit is supported by clear and
convincing evidence, as is its finding that Mother's unfitness is unlikely to change in the
foreseeable future.
Mother's first argument on appeal is that there was not clear and convincing
evidence to support the district court's finding that she was unfit and that her unfitness
was unlikely to change in the foreseeable future. The district court must base its finding
that a parent is unfit on one of several statutory bases outlined by the Legislature. See
K.S.A. 2019 Supp. 38-2269. And—if supported by clear and convincing evidence—a
single such basis can be enough to terminate a parent's rights. K.S.A. 2019 Supp. 38-
2269(f).
Here, the district court relied on five of these statutory factors: (1) that Mother had
shown a lack of effort to adjust her circumstances, conduct, and condition to meet the
children's needs, K.S.A. 2019 Supp. 38-2269(b)(8); (2) that reasonable efforts by public
and private agencies to get the family back together had failed, K.S.A.2019 Supp. 38-
2269(b)(7); (3) that Mother had failed to carry out a reasonable, court-approved plan
directed toward reintegrating the children into her home, K.S.A.2019 Supp. 38-
2269(c)(3); (4) that Mother's use of narcotics rendered her unable to care for her children.
K.S.A. 2019 Supp. 38-2269(b)(3); and (5) that Mother's mental illness rendered her
unable to care for her children, K.S.A. 2019 Supp. 38-2269(b)(1).
Mother contends that it was improper for the district court to rely on the fifth
factor because the State had not alleged that Mother's mental illness made her unfit in its
motion to terminate parental rights. Because of that, Mother says, she was not on notice
that her mental health might form a basis for finding her unfit, so she could not
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meaningfully respond to that allegation. Mother argues that lack of notice amounted to a
due-process violation.
The State contends that Mother's due-process argument is not properly before this
court because Mother has raised it for the first time on appeal. See State v. Godfrey, 301
Kan. 1041, 1043, 350 P.3d 1068 (2015). The State cites our Supreme Court's decision in
Godfrey, which held that a party must invoke an exception to the general rule about
raising issues for the first time on appeal and explain why the issue is properly before the
appellate court. 301 Kan. at 1043. Since Mother has failed to explain why her due-
process claim is before this court, the State says that she has abandoned the issue.
But we may review claims of constitutional error for the first time on appeal when
that's required to serve the ends of justice or to prevent the denial of a party's fundamental
rights. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Mother's fundamental
rights are implicated here—a parent's right to the control, custody, and care of children is
a fundamental right protected by the United States Constitution. Frazier v.
Goudschaal, 296 Kan. 730, 752-53, 295 P.3d 542 (2013). So we will consider the merits
of her argument.
Because parental control is a fundamental right, due-process protections apply to a
termination proceeding. Matter of Ellison, 305 Kan. 519, 526, 385 P.3d 15, (2016); In re
X.D., 51 Kan. App. 2d 71, 73-74, 340 P.3d 1230, (2014). The essence of due process is
notice and the right to be heard at a meaningful time and in a meaningful manner.
Alliance Mortg. Co. v. Pastine, 281 Kan. 1266, 1275, 136 P.3d 457 (2006); Matter of
Estate of Herrman, No. 118,731, 2018 WL 4262634, at *2 (Kan. App. 2018)
(unpublished opinion). Here, the State had not raised the issue, and the court did not raise
it until after both parties had presented their evidence. Under those circumstances,
Mother could not have meaningfully addressed the court's finding because she did not
have notice that mental illness might support terminating her parental rights. We
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therefore agree with Mother that the district court should not have raised this statutory
factor on its own accord; we will not consider the fifth factor (whether Mother's mental
illness rendered her unfit) when determining whether to uphold the district court's
decision.
The State suggests that we could summarily affirm the district court based on
Mother's failure to adequately brief any complaint about the district court's reliance on
the first factor (Mother's lack of effort to adjust to the children's needs). The State may be
right about that; Mother has at least failed to address that factor explicitly. But that factor
is closely related to the third factor we listed (Mother's failure to carry out a reasonable,
court-approved reintegration plan). Given the importance of the issues at stake here, we
will address Mother's appeal on its merits, not find in the State's favor because Mother's
appellate brief was imperfect.
We turn, then, to the evidence supporting the remaining four factors—(1) that
Mother had shown a lack of effort to adjust to the children's needs; (2) that reasonable
efforts by public and private agencies to get the family back together had failed; (3) that
Mother had failed to carry out a court-approved reintegration plan; and (4) that Mother's
use of narcotics rendered her unable to care for her children.
We agree with Mother that there is not clear and convincing evidence that her drug
use rendered her unable to care for her children. It is clear from the record before us that
Mother used drugs—she admits as much in her brief, though she calls her drug use
"sporadic." But the statute requires that drug use "render the parent unable to care for the
ongoing physical, mental or emotional needs of the child" before the drug use may be a
basis for terminating parental rights—so there must be some connection between the drug
use and the child's wellbeing. K.S.A. 2019 Supp. 38-2269(b)(3); see In re L.C.W., 42
Kan. App. 2d 293, 301, 211 P.3d 829 (2009) ("'Just because parents use drugs, or have
been convicted of using drugs, or drink too much alcohol, does not automatically mean
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the child is likely to sustain harm, or the home is contrary to the child's welfare. If that
were the test, then thousands of children would be removed from the home weekly.'").
Here, the State has detailed Mother's drug use, but it has not connected the drug use to
Mother's inability to meet her children's needs. As a result, this statutory factor is not
supported by the evidence.
Even so, we find that clear and convincing evidence supports the other three
statutory factors. Testimony at trial showed that Mother had repeatedly failed to carry out
significant parts of the court-approved reintegration plan for nearly three years. Despite
Mother's struggles to parent her special-needs children, testimony showed that Mother
had refused to sign up for in-home family therapy, as a clinician had recommended. As
the reintegration plan required, Mother got a substance-abuse and mental-health
evaluation, but Mother did not follow through with those recommendations, only
sporadically seeking treatment as the termination proceedings drew near. Mother was
also consistently late for her weekly, hour-long visitations with her children, often
missing up to half of the visit, and was not fostering her relationship with her children;
McCarroll testified that this inconsistency was especially concerning because it suggested
that Mother would struggle to get her special-needs children to therapy, treatment, and
doctor's appointments. McCarroll also described her own efforts on the case as having
been above and beyond what a typical case required. Finally, Mother herself testified that
she did not think she needed to change her conduct.
We understand that Mother may have a very different view of the facts of the case,
but this court must take the evidence in the light most favorable to the State. We also may
not reweigh the evidence, judge the credibility of witnesses, or redetermine questions of
fact. See In re Adoption of C.L., 308 Kan. at 1279. Under those standards, clear and
convincing evidence supports the district court's unfitness finding based on the remaining
three factors (Mother's lack of effort to adjust her circumstances to the children's needs,
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Mother's failure to carry out the reintegration plan, and the failure of reasonable agency
efforts aimed at reintegration).
Clear and convincing evidence also supports the district court's finding that
Mother's unfitness was unlikely to change in the foreseeable future. We measure the
foreseeable future from the children's perspective, as a child's time perspective differs
from an adult's. In re R.S., 50 Kan. App. 2d 1105, 1117, 336 P.3d 903 (2014). Here, by
the time the district court terminated Mother's parental rights, the boys had been in State
custody for nearly three years. Although it's true that Mother and the boys' father initially
made progress, the evidence shows that during the two years after Father's death, Mother
made little progress towards reintegration. Even in the two months between the two days
of trial, Mother did not make progress on tasks that caseworkers viewed as critical. The
district court properly determined that Mother's unfitness was unlikely to change in the
foreseeable future.
The district court did not abuse its discretion when it determined that the children's best
interests supported termination of Mother's parental rights.
Mother's final argument on appeal is that in determining whether the termination
of parental rights was in the children's best interests, the district court erred by not
allowing additional time for Mother to comply with court orders. Because the children
were in a stable foster placement for at least four more months, Mother says that the court
should have waited to terminate her rights.
Of course, the district court knew this information. It had to decide whether
terminating Mother's parental rights was in the boys' best interest. K.S.A. 2019 Supp. 38-
2269(g)(1). In doing so, the court must give primary consideration to the physical,
mental, and emotional health of the child. K.S.A. 2019 Supp. 38-2269(g)(1).
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On appeal, our role is a limited one. The court that hears the evidence directly—
the district court—is in the best position to decide whether terminating parental rights is
in a child's best interests. Accordingly, we may overturn its decision only for an abuse of
discretion. See Smith, 306 Kan. at 60.
We find no abuse of discretion here. The children had waited three years to be
reintegrated with Mother, yet Mother had not made significant progress toward that goal
even as the termination trial was held. Mother failed to recognize that she needed to
change her conduct, did not foster the relationship with her children, refused to do family
therapy until right before the trial (when it was not available), and, despite many
opportunities to do so, did not follow through with substance-abuse and mental-health
treatment as the family case plan required. So a reasonable person could agree with the
district court's decision that terminating Mother's parental rights was in the boys' best
interests.
In closing, comments this court has made in another case are equally true
here:
"Cases like this are difficult ones. A parent may be labeled 'unfit' under the law
even though he or she loves the child and wants to do the right thing, which may be the
case here. But we must judge these cases based mostly upon actions, not intentions, and
we must keep in mind that a child deserves to have some final resolution within a time
frame that is appropriate from that child's sense of time. . . . The district court's decision
was squarely supported by the evidence. It is time to allow [the child] to move on with
her life." In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237 (2008).
We affirm the district court's judgment.
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