In re A.M. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,640
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of A.M.,
A Minor Child.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; GREGORY D. KEITH, judge. Opinion filed July 1, 2022.
Affirmed.
Jordan E. Kieffer, of Jordan Kieffer, P.A., of Bel Aire, for appellant natural father.
Kristi D. Allen, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before ARNOLD-BURGER, C.J., WARNER and CLINE, JJ.
PER CURIAM: After finding that Father was an unfit parent, the district court
terminated his parental rights to A.M. Father appeals that decision, arguing there was
insufficient evidence to show he was an unfit parent as defined by the statute, he would
remain unfit for the foreseeable future, or termination was in A.M.'s best interests. After
reviewing the record, we affirm the district court.
FACTUAL AND PROCEDURAL HISTORY
In October 2019, A.M., a substance exposed newborn, was placed in protective
custody. At the time of delivery, Mother tested positive for methamphetamine. In a
petition to have A.M. adjudicated a child in need of care, the State also alleged that there
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were concerns of domestic violence between Mother and Father and that their home was
unclean.
At the time of A.M.'s birth, Father was unemployed and on probation for a forgery
charge. He had a lengthy history of law enforcement contact, including several substance
abuse charges, various thefts, and domestic abuse. He relied on others to meet his basic
needs such as housing and transportation.
In February 2020, upon Father's statement of no contest to the child in need of care
petition, the district court found that there was clear and convincing evidence that A.M.
was a child in need of care, adjudicated A.M. as such, and approved a proposed
permanency plan to work on reintegrating A.M. with her parents. To reintegrate with
A.M., Father needed to abstain from the use of illegal drugs and alcohol, participate in
random drug testing, obtain employment, obtain and maintain appropriate housing, and
participate in certain assessments and programs such as substance abuse evaluations and
parenting classes.
A month later, St. Francis Ministries (SFM), the social services group working on
the case, noted that Father had not yet completed his clinical interview and assessment.
According to the report, Father was being removed from his residence at the maternal
grandmother's home as a protection from abuse order had been served against him. As of
early March 2020, Father reported that he lived with a friend and was working on getting
housing of his own. He also reported that he had begun drug treatment but had not signed
a release of information. He also stated that he was close to completing a parenting class
and planned to take a budget and nutrition class as well. He had obtained employment but
lost it after a week because he missed work because he was sick. According to Father, his
most recent drug test would be positive because he used drugs after losing his job.
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By the time SFM completed its report for a May 2020 hearing—three months after
the initial finding that A.M. was a child in need of care, Father had still not completed his
mental health assessment. But he indicated he would be doing so soon. Father had
completed his parenting class but had not signed up for more classes. He remained
unemployed and was waiting to hear back from a grocery store about a job.
Father, throughout the course of the case, failed to maintain his sobriety as
evidenced by several drug tests that he either missed or failed.
Due to his failure to complete any task plans, in September 2020, seven months
after A.M. was adjudicated a child in need of care, Father was informed that the new goal
of the case would be adoption. SFM noted in its report to the court that Father had been
inconsistent in contacting his case workers to discuss the case. According to the report,
Father had not had consistent contact with SFM since October 2019. It appeared that
Father did not have a working phone and did not inform SFM of that fact. SFM noted that
it could not send Father letters because he lacked stable housing.
Father had not provided SFM with information on whether he had completed any
additional classes. Nor had Father provided SFM with proof of employment. Father had
not been consistent with visitations as well because he had a warrant that needed to be
taken care of first. He had also not reported to his probation officer as directed.
In early February 2021, 15 months after A.M.'s birth, Father told SFM that he had
a job, would check himself into treatment, and would turn himself in and bond out,
complete his anger management class, and reenroll in his budget and nutrition classes.
But instead, he continued to either miss or fail his drug tests and in mid-February 2021,
Father was incarcerated on charges of probation violation, attempted first-degree murder,
aggravated battery, criminal threat, aggravated assault, aggravated kidnapping, failure to
comply, and theft.
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In March 2021, the State moved for a finding of unfitness and termination of
Father's parental rights.
At the June 2021 termination hearing, Father confirmed that he was currently
incarcerated at the county jail and had been there since mid-February 2021. According to
Father, he had the means to provide for A.M. while he was in custody, but no one had
contacted him to ask for anything, so he had not provided any financial support. He did
note that the paternal grandmother had his power of attorney and could spend his money
for things A.M. needed when A.M. visited her. But Father also stated that he had $7,800,
he planned to hire his own attorney for $10,000 rather than use a court-appointed
attorney, and that his bond was set at $475,000—an amount he was not able to pay. He
claimed his new attorney would get his bond reduced to an amount he could afford, but it
was unclear what that amount would be and even when it would happen.
According to Father, the only thing he had left to complete on his case plan tasks
was to finish an anger management class. But he acknowledged that before he was
incarcerated, he was using methamphetamines and marijuana on a weekly basis, and he
had never completed treatment. Father claimed that he had a bed available in a treatment
facility if he could make his bond, which was "outrageously high." Although he further
revealed that he did not have a reserved spot—just that the place he was considering
always had openings.
Father explained that he had visitation with A.M. for the first half of the case, but
his visits were eventually suspended because the court believed he had an active warrant.
But when Father tried to take care of the active warrant, he was told there was no warrant
on file. Father said that he had seen someone from SFM once while he was incarcerated.
At that visit, SFM told him they would visit once a month, but he had not seen anyone
from SFM since that visit.
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But according to Jackie Del Real, a permanency specialist with SFM, Father failed
to provide proof that he had completed some of his ordered classes; that, before his most
recent incarceration, Father failed to obtain stable housing; was inconsistent with
contacting SFM; and never provided proof of stable employment. Del Real also testified
that Father often failed to comply with ordered drug tests and when he did comply, he
tested positive.
Del Real made it clear that once Father was released from jail, he would still have
several case plan goals that he would need to complete. Del Real explained that she did
not think it would be in A.M.'s best interests to wait for Father to complete those goals
given how long the case had taken. For example, Deal Real explained that she would
want to see at least six months sobriety from Father before considering reintegration.
Amanda Galloway, a reintegration supervisor with SFM, also recommended
Father's parental rights be terminated and A.M. achieve permanency through adoption.
Galloway noted that A.M. had been in foster care her entire life and had made bonds with
her placement family instead of Father. Galloway did not believe that Father had shown
that he had made any substantial changes in his life since the case started. As Galloway
put it, he continued to use drugs, did not complete required assessments, and was
currently incarcerated. Galloway reiterated that Father would need to show that he could
maintain sobriety for at least six months after being released from jail before she would
consider reintegration a potential option. And at least six months after Father was
released was, in Galloway's opinion, too long for A.M. to have to wait for permanency in
her life.
Father testified again on the second day of the hearing, held in late July 2021.
Despite attempting to make his bond, Father remained incarcerated on his new charges
and anticipated he would be for up to 60 more days. While in custody he had also been
charged with a new crime for having a relationship with an underage girl. Father also
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acknowledged that while he was in custody, he could not be a parent for A.M. in several
respects. He indicated that if and when he bonded out, he would go into inpatient
substance abuse treatment for some period of time and then to a sober living house.
After considering the evidence, the district court granted the State's motion to
terminate Father's parental rights. In doing so, the court found clear and convincing
evidence that Father was an unfit parent because of:
1. His use of intoxicating liquors or narcotics or dangerous drugs that rendered
him unable to care for A.M. K.S.A. 2020 Supp. 38-2269(b)(3). The district
court noted that Father had not been able to maintain his sobriety.
2. The failure of reasonable efforts made by appropriate public or private
agencies to rehabilitate the family. K.S.A. 2020 Supp. 38-2269(b)(7). The
district court noted the failure of Father to complete case plans.
3. A lack of effort on Father's part to adjust his circumstances, conduct, or
conditions to meet the needs of A.M. K.S.A. 2020 Supp. 38-2269(b)(8). The
district court noted Father's failure to establish employment and stable housing,
along with continued drug use.
4. A failure to maintain regular visitation, contact, or communication with the
child. K.S.A. 2020 Supp. 38-2269(c)(2). The district court noted that Father
had not taken proper action to make sure warrants were served or canceled so
he could see A.M.
5. A failure to carry out a reasonable plan approved by the court directed toward
integrating A.M. into a parental home. K.S.A. 2020 Supp. 38-2269(c)(3).
The district court found that terminating Father's parental rights was in the best interests
of A.M. under K.S.A. 2020 Supp. 38-2269(g)(1).
Father timely appealed.
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ANALYSIS
On appeal, Father argues that there was not sufficient evidence to support the
district court's decision to find him an unfit parent and that termination of his parental
rights was not in A.M.'s best interests.
A parent has a constitutionally recognized fundamental 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). Accordingly, parental rights for a child may be terminated 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, 1113, 336 P.3d 903 (2014).
A district court may terminate parental rights only after a child has been found to
be a child in need of care and the court finds by clear and convincing evidence that
• the parent is unfit and unable to care properly for a child;
• the conduct or condition that renders the parent unfit is unlikely to change
in the foreseeable future; and
• by a preponderance of evidence, it is in the best interests of the child to
terminate parental rights. See K.S.A. 2020 Supp. 38-2269(a) and (g)(1).
K.S.A. 2020 Supp. 38-2269(b) provides a list of nine nonexclusive factors the
district court may rely on to determine if a parent is unfit. Any one of those factors alone
may be grounds to terminate parental rights. K.S.A. 2020 Supp. 38-2269(f).
"When we review a finding of parental unfitness, this court must determine, after
reviewing all the evidence in a light most favorable to the State, whether a rational fact-
finder could have found the ultimate determination to be highly probable, i.e., by clear
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and convincing evidence." In re T.H., 60 Kan. App. 2d 536, 547, 494 P.3d 851, rev.
denied 314 Kan. 855 (2021). When making this determination, this court does not weigh
conflicting evidence, pass on the credibility of witnesses, or redetermine questions of
fact. In re B.D.-Y., 286 Kan. at 705. Any single factor of unfitness can be a sufficient
basis for a district court's determination that a parent is unfit. K.S.A. 2020 Supp. 38-
2269(f).
Clear and convincing evidence supports the district court's finding that Father was unfit
and his condition was unlikely to change in the foreseeable future.
On appeal, Father argues there was not clear and convincing evidence to support
the district court's decision that he would remain unfit for the foreseeable future. Father
does not appear to challenge the finding of current unfitness. In fact, he agreed at the
termination hearing that he had not maintained his sobriety—using marijuana daily and
methamphetamine weekly throughout this case—and had not completed treatment. He
also agreed that he failed to cooperate with his caseworker and had not seen his daughter
in a year. And finally, it was not disputed that he was and had been incarcerated for four
months at the time of the hearing being held on a $475,000 bond. These undisputed facts
were sufficient to support the district court's finding of unfitness.
When determining whether a parent's conduct is likely to change in the foreseeable
future, the court considers the foreseeable future from the child's perspective because
children experience time differently than adults. K.S.A. 2020 Supp. 38-2201(b)(4); In re
R.S., 50 Kan. App. 2d at 1117.
Father points to his testimony that indicated that he had made some progress on
his case plan and that he had a desire and a plan to keep progressing once he was released
from custody. But after reviewing the testimony, we find that the district court did not err.
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This case began in October 2019, when A.M. was born. From that time to the
termination hearing, clear and convincing evidence established that Father did not make
any substantial progress in addressing the issues the district court relied on to find him an
unfit parent. Father consistently tested positive for drugs or missed his drug tests. Father
failed to provide proof of employment. He failed to obtain stable housing. In his appeal,
Father fails to point to anything showing that he had made substantial changes and would
continue to do so once released from incarceration.
Father also failed to keep in contact with A.M. The district court ordered that he
take care of an outstanding warrant before resuming visitation. According to Father he
tried to do so but no one could find an outstanding warrant. It seems, Father left it at that.
There was no testimony that he tried to speak with the judge about the phantom warrant.
Instead, Father, as he put it, "stubbornly kind of started bucking [SFM] at that point."
Courts can consider a parent's past conduct as evidence regarding the reasonable
likelihood of any future change in parental fitness. In re M.S., 56 Kan. App. 2d 1247,
1264, 447 P.3d 994 (2019). Here, when viewing the evidence in a light most favorable to
the State, the record shows that Father made little to no significant progress on his case
plan both before and after he was incarcerated. And, as Galloway testified, Father would
need to be released from prison and maintain sobriety for at least six months before she
would consider reintegration an option. Plus, Father would still need to meet his other
case plan goals. In other words, the time needed to ensure that he would be able to
continue his sobriety into the foreseeable future was longer than would be reasonable
given the time A.M. has been in out-of-home placement and her need for current
permanence and stability.
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The district court did not abuse its discretion when it determined that termination was in
A.M.'s best interests.
Father also argues the district court erred when it determined that termination was
in A.M.'s best interests.
The decision of whether a child's best interests would be served by terminating
parental rights is a "'highly discretionary call.'" In re R.S., 50 Kan. App. 2d at 1114. Thus,
the "best-interests determination" is reviewed under this court's traditional abuse of
discretion standard. 50 Kan. App. 2d at 1114.
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact.
Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018).
At the time of the hearing, A.M. had spent her entire life in foster care. She had
formed bonds with her placement family and had no contact with Father for about a year.
Father had nearly two years to show that he was a fit parent for A.M. and could not do so.
At the absolute best, SFM would begin to consider Father for reintegration six months
after his release from custody—the date of which was unknown. Six months to a child as
young as A.M. is a significant portion of her life. A.M. deserved permanency and that is
something that Father could not provide.
Father fails to show that the district court's decision that A.M.'s best interests
would be served by terminating Father's parental rights was based on an error of law, an
error of fact, or that it was arbitrary, fanciful, or unreasonable. The district court did not
abuse its discretion and its findings were based upon a preponderance of the evidence.
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In sum, when viewing the evidence in a light most favorable to the State, there
was clear and convincing evidence to support the district court's decision that Father was
an unfit parent because of his use of drugs, the failure of the lack of reasonable efforts
made by appropriate public or private agencies to rehabilitate the family, a lack of effort
on father's part to adjust his circumstances, a failure to maintain regular visitation with
A.M., and a failure to carry out a reasonable plan directed toward integration of A.M. into
the parental home. There was clear and convincing evidence that the conduct or condition
that rendered Father unfit was unlikely to change in the foreseeable future; and there was
a preponderance of evidence, to support the district court's discretionary finding that it
was in A.M.'s best interests to terminate her Father's parental rights.
Affirmed.
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