In re A.C. ( 2022 )


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  •                           NOT DESIGNATED FOR PUBLICATION
    Nos. 124,934
    124,935
    124,936
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    In the Interests of
    A.C., C.C., and A.C.,
    Minor Children.
    MEMORANDUM OPINION
    Appeal from Sedgwick District Court; GREGORY D. KEITH, judge. Opinion filed September 2,
    2022. Affirmed.
    Anna M. Jumpponen, of AJ Law, L.L.C., of Wichita, for appellant natural mother.
    Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
    Before HURST, P.J., HILL and ATCHESON, JJ.
    PER CURIAM: J.C. has appealed the order of the Sedgwick County District Court
    terminating her right to parent her three children and challenges the sufficiency of the
    evidence supporting the ruling. The State presented evidence J.C. continued to abuse
    illegal drugs, failed to undertake significant tasks in a plan for family reunification, and
    was without gainful employment at the time of the termination hearing. J.C. principally
    attempted to counter that unflattering portrait through her own uncorroborated testimony.
    The district court, however, explicitly branded J.C. as unworthy of belief. Given those
    circumstances and the governing standards of review we must apply, we find no basis to
    upset the district court's ultimate conclusion and, therefore, affirm the termination of
    J.C.'s parental rights.
    1
    FACTUAL AND PROCEDURAL BACKGROUND
    J.C. and her husband C.C. had three children: daughters A.H.C., who is now
    almost 13 years old, and A.S.C., who is about 4 and 1/2 years old; and a son C.M.C., who
    is almost 12 years old. St. Francis Ministries, a social service agency that contracts with
    the Kansas Department for Children and Families, had been providing assistance to the
    family in addressing the parents' substance abuse problems and their recurrent domestic
    violence, including incidents in which C.C. struck J.C. in the presence of the children.
    The two older children also had frequent unexcused absences from school.
    Because the home environment had not appreciably improved by April 2019, the
    State filed petitions to have A.H.C., C.M.C., and A.S.C. declared children in need of care.
    The cases were joined in the district court for all proceedings and have remained
    consolidated for this appeal. J.C. and C.C. did not contest the determination the children
    were in need of care or their placements out of the home through DCF, as the state
    agency assuming legal custody of them. St. Francis Ministries implemented a detailed
    plan designed to reunite the family. The plan required the parents to take steps to
    eliminate the deleterious conditions that prompted state intervention, to improve their
    parenting skills, and to provide adequate housing and financial support for the children.
    Those objectives formalized in these legal proceedings what St. Francis Ministries had
    been trying to accomplish before April 2019.
    Because J.C. and C.C. continued to make little tangible progress toward family
    reunification, the State filed motions in October 2019 to terminate their parental rights to
    all three children. At some point, C.C. was jailed for a probation violation and new felony
    charges. He remained in custody for the duration of the district court proceedings,
    although he participated personally and through an appointed lawyer in all pertinent
    hearings.
    2
    The district court began the termination hearing in January 2020 and ruled J.C.
    and C.C. were presently unfit to parent the children. See K.S.A. 38-2269(a) (termination
    requires finding parent "is unfit" and "condition is unlikely to change in the foreseeable
    future"). The district court continued the hearing to consider whether the unfitness would
    likely change and to assess the best interests of the children. See K.S.A. 38-2269(g)(1)
    (best interests determination required before terminating parental rights). For reasons that
    are neither especially relevant to this appeal nor immediately apparent from the record,
    the district court did not resume the termination hearing until June 2021—some 18
    months later.
    Several caseworkers from St. Francis Ministries, J.C., and C.C. testified at the
    resumed hearing, and the district court admitted numerous reports and other documents
    as evidence. The record shows J.C. tested negative for controlled substances many times
    after January 2020—a marked improvement from her repeated test failures and test
    evasions earlier in these proceedings. But J.C. tested positive for methamphetamine in
    January 2020, September 2020, and May 2021. She also tested positive for marijuana in
    February, June, and September of 2020. Methamphetamine is an especially addictive and
    pernicious illegal drug. During the June 2021 hearing, J.C. dismissed all of those results
    as false positives and asserted she had retested for at least some of them with favorable
    results. She offered no evidence corroborating her assertions.
    Because of the positive drug tests, a caseworker told J.C. she needed to get a
    follow-up substance abuse evaluation. J.C. told the agency she had done so but never
    provided confirmation of her claim. One of the caseworkers testified that given J.C.'s
    substance abuse history, she would need to present negative drug tests for a year before
    family reintegration realistically could be considered. Similarly, J.C.'s visits with the
    children were limited to relatively short, supervised contacts because of the positive drug
    tests. J.C. was never able to progress to extended, unsupervised visits, a typical precursor
    3
    to an agency recommendation for family reunification. J.C. also failed to attend about 30
    percent of the scheduled visits with her children after January 2020.
    The reunification plan called for J.C. to participate in individual counseling. J.C.
    did not do so over the course of the case. At the June 2021 hearing, she testified she had
    started individual counseling a few weeks earlier and offered varied excuses for having
    put it off. Again, J.C. provided no evidence corroborating her claim to have begun
    counseling. More generally, the caseworkers testified they found J.C. to be difficult to
    reach at times and often unresponsive to requests for information. The children were to
    receive counseling, as well.
    J.C. had housing after January 2020 the caseworkers considered suitable for the
    children, and she a job at a fast-food restaurant for quite a while. But J.C. apparently lost
    the job about a month before the reconvened termination hearing. The circumstances as
    to why are less than clear from the record, especially given the district court's credibility
    findings. J.C., however, testified that she would be able to return to work at the restaurant
    and, in any event, had a line on another job.
    At the June 2021 hearing, a caseworker testified that the agency was concerned
    that J.C. would resume living with C.C. when he was no longer incarcerated—creating a
    situation ripe for a return to drug abuse and physical violence. J.C. testified that she
    intended to divorce C.C. and had recently begun steps to do so. Again, she provided
    nothing to corroborate her assertion.
    The record shows that the two girls had been placed together and were doing well.
    C.M.C. had been separately placed in succussive out-of-home arrangements with some
    difficulties. C.M.C. regularly acted out and could be difficult to manage. And one
    placement failed to take him for individual counseling for several months, despite a plan
    requirement he receive that help. One of the caseworkers agreed that it would be difficult
    4
    to find a single permanent placement for all three children and C.M.C. likely would
    continue to be separated from his sisters.
    In early July 2021, the district court entered an order terminating the rights of J.C.
    and C.C. to parent all three children. The district court based its decision on four statutory
    grounds of unfitness and determined those conditions were unlikely to change in the
    foreseeable future. The district court also concluded the best interests of the children
    favored termination. In the order, the district court expressly found J.C. "is not a credible
    witness."
    J.C has appealed the termination order. C.C. has not, and he is not a party to this
    appeal. After J.C. filed her appellate brief, the district court entered a nunc pro tunc order
    substituting a new ground of unfitness for one incorrectly identified in the July 2021
    order. That creates a procedural wrinkle we address in our analysis of the issues on
    appeal.
    LEGAL ANALYSIS
    We begin with an outline of the legal principles governing the termination of
    parental rights and then apply those principles to the evidence and findings from the
    district court.
    Governing Legal Principles
    A person has a constitutionally recognized right to a parental relationship with his
    or her child. See Santosky v. Kramer, 
    455 U.S. 745
    , 753, 758-59, 
    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) (substantive liberty
    5
    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. 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). The Legislature has enacted the Revised Kansas
    Code for Care of Children, K.S.A. 38-2201 et seq., to codify processes for finding
    children in need of care, for fostering family reunification, and for terminating parental
    rights if those efforts fail.
    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
    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. 38-2269(a). In considering a parent's unfitness, the district court may apply the
    factors outlined in K.S.A. 38-2269(b) and, when the child has been removed from the
    home, the additional factors in K.S.A. 38-2269(c). In this case, the district court drew
    from both of those sources to find J.C. unfit. A single factor may be sufficient to establish
    unfitness. See K.S.A. 38-2269(f).
    In gauging the likelihood of change in the foreseeable future under K.S.A. 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. 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
    termination of parental rights proceedings "in the sense that a year . . . reflects a much
    longer portion of a minor's life than an adult's").
    6
    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
    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).
    The district court's best interests determination is governed by a less stringent
    standard. As directed by K.S.A. 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. 
    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 Northern Natural
    Gas Co. v. ONEOK Field Services Co., 
    296 Kan. 906
    , 935, 
    296 P.3d 1106
     (2013); In re
    M.S., 
    56 Kan. App. 2d 1247
    , 1264, 
    447 P.3d 994
     (2019).
    Legal Principles Applied
    In the July 2021 order, the district court found J.C. to be unfit for these statutory
    reasons identified in K.S.A. 38-2269(b):
    7
    ⦁ "[T]he use of intoxicating liquors or narcotic or dangerous drugs of such
    duration or nature as to render the parent unable to care for the ongoing physical, mental
    or emotional needs of the child." K.S.A. 38-2269(b)(3);
    ⦁ Reasonable efforts made by public or private agencies to rehabilitate the family
    have failed. K.S.A. 38-2269(b)(7); and
    ⦁ A "lack of effort on the part of the parent to adjust the parent's circumstances,
    conduct or conditions to meet the needs of the child." K.S.A. 38-2269(b)(8).
    In addition, the district court listed K.S.A. 38-2269(c)(2) that permits a finding of
    unfitness based on a parent's failure to maintain regular visits or communication with a
    child who has been in an out-of-home placement for at least 15 of the last 22 months. As
    we have stated, the district court corrected that ground in a nunc pro tunc order to K.S.A.
    38-2269(c)(3) applicable when a parent fails "to carry out a reasonable plan approved by
    the court directed toward the integration of the child into a parental home" while the child
    has been in an extended out-of-home placement. Although the new ground is
    substantively much like the one in K.S.A. 38-2269(b)(7) and there is no dispute the
    children had been out of the home for more than two years, we decline to consider this
    reason for termination. We do so based on a sense of procedural fairness to J.C. because
    the district court did not formally identify that basis for unfitness until after the appellate
    briefing had begun. As a result, J.C. did not have an entirely full and fair opportunity to
    address the specific point on appeal.
    We turn to the statutory bases for unfitness the district court identified under
    K.S.A. 38-2269(b); they tend to overlap, so we look at them together. And we must
    accept the district court's determination that J.C.'s testimony lacked credibility. We do so
    because appellate courts are in no position to recreate the power or the fragility of a
    witness' live testimony from a review of a transcript. See State v. Scaife, 
    286 Kan. 614
    ,
    624, 
    186 P.3d 755
     (2008) ("[T]he ability to observe the declarant is an important factor in
    determining whether he or she is being truthful.").
    8
    The evidence, then, shows that J.C. continued to test positive for
    methamphetamine and marijuana on a relatively regular basis leading up to the
    conclusion of the termination hearing. The district court could properly view her
    dissembling about false positive tests to be indicative of denial and deflection of her
    continuing active drug abuse. J.C.'s failure to document that she had gotten the drug
    evaluation St. Francis Ministries required falls in the same category. Active abuse of a
    drug like methamphetamine requires the user to traffic and, in turn, to invite arrest and
    prosecution for a serious felony.
    The district court had sufficient evidence to find that J.C. continued abusing drugs,
    particularly methamphetamine, and that conduct rendered her presently incapable of
    caring for her children. The prospects for change in the foreseeable future were dim,
    given J.C.'s refusal to acknowledge the accuracy of the positive tests and her recalcitrance
    to undergo a substance abuse evaluation, let alone some form of treatment or counseling
    that might then be recommended.
    The positive drug tests, in turn, inhibited J.C.'s ability to expand visitation with the
    children. Coupled with her refusal to take steps to deal with her substance abuse issues
    and to engage in individual mental health counseling, those circumstances created a
    constellation of factors defining a failure of reasonable efforts by St. Francis Ministries
    toward reunification of the family, supporting unfitness under K.S.A. 38-2269(b)(7).
    Again, the prospects for change seemed limited, especially given J.C.'s unwillingness to
    acknowledge the problems and, instead, ponying up excuses the district court found to be
    untrue.
    All of that also informs the third ground for termination—J.C.'s lack of effort to
    adjust her conduct to meet the children's needs and, in particular, to accomplish the tasks
    necessary for family reunification. Most prominently here, too, we focus on J.C.'s
    unwillingness to acknowledge the more recent positive drug tests and to act in
    9
    accordance with those results rather than ineffectively trying to dismiss them as
    erroneous across the board. We add in J.C.'s unsatisfactorily explained departure from her
    job just a month before the termination hearing, leaving her without the financial means
    to support the children. The district court, as we have said, found her ameliorative
    explanations of future employment to be unworthy of belief. Finally, J.C. purported to
    have begun steps to divorce C.C. shortly before the reconvened termination hearing. But
    she could not support that claim and had not acted sooner to shield herself or the children
    from C.C.'s abusive behavior in any tangible way, such as by seeking a protection from
    abuse order. A reasonable fact-finder could conclude it was highly probable J.C. was
    unfit under K.S.A. 38-2269(b)(8) based on her failure to make those changes. Likewise,
    J.C.'s refusal to take significant positive steps during the two years these cases were
    proceeding in the district court supports the interlocking conclusion that she would not
    suddenly reverse course in the foreseeable future.
    In sum, the clear and convincing evidence established J.C. to be unfit under
    K.S.A. 38-2269(b)(3), (7), and (8) and that those conditions of unfitness likely would not
    change in the foreseeable future. The child time rule bolsters the latter determination,
    especially as to A.S.C., who is yet to turn five years old and has been in an out-of-home
    placement most of her life. But child time also directs that A.H.C. and C.M.C. should not
    have had to wait for J.C. to go a year with only negative drug tests before reunification
    would be considered even a possibility. The record afforded no sound basis to conclude
    that might happen anytime soon. The district court, then, had more than enough evidence
    to support the conclusions of unfitness and unlikelihood of change in the foreseeable
    future.
    The remaining component for termination is a determination that the best interests
    of the children would be furthered by extinguishing J.C.'s parental rights. Our review is
    exceedingly deferential to the district court. Here, the district court understood the
    relevant facts and the governing law. Accordingly, we are left to ask whether the district
    10
    court's weighing of those considerations was so off kilter that no other judge could
    reasonably come to the same conclusion. We are comfortable that cannot be said.
    The best interests determination necessarily dovetails with the unfitness findings,
    since the degree and duration of parental unfitness go on the side of the ledger favoring
    termination while the negative effects of termination on the children rest on the other
    side. Here, the children had been exposed to significantly deleterious conditions and
    behaviors in the home. Two years later, J.C. had not made the necessary progress to
    alleviate those problems and offered no demonstrable prospect for success far down the
    line, let alone on the immediate horizon.
    Those circumstances would leave the children in bureaucratic limbo without any
    tangible expectations for permanency—whether that would be an adoptive placement or a
    return to J.C. The principal consideration cutting against termination as being in the
    children's best interests was the very real possibility they could not find a single
    permanent placement accommodating all three of them. Separating siblings, as may
    happen with the termination of J.C.'s parental rights, is an undeniably adverse result to be
    avoided if reasonably possible. Here, however, it is not an inevitable outcome. And the
    district court determined the continued uncertainty for the children in extending these
    proceedings while J.C. continued to make, at best, nominal progress toward restoration of
    the family imposed a greater emotional toll on them than cutting off their parents' rights.
    We find no abuse of the broad discretion afforded the district court in coming to that
    conclusion.
    Affirmed.
    11