LEBEN

Appeal from Harvey District Court; Joe Dickinson, Judge.
Gregory C. Nye, of Nye & Nye, of Newton, for appellant. Russell A. Coleman, assistant county attorney, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.

MEMORANDUM OPINION

LEBEN, J.

F.J.C. (Father) appeals the termination of his parental rights to two children. Parental rights may be terminated only in circumstances set out by statute and only when clear and convincing evidence supports termination. Father claims on appeal that the evidence in this case wasn't sufficient for the district court to terminate his parental rights.

But termination is authorized when a parent's conduct renders the parent “unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” When the termination hearing was held, Father was in jail in Florida, where he was to be held for at least another 7 to 8 months, and he had other criminal charges pending. Equally important, before he went to prison, he had failed to meet several reasonable requirements that had been set before he could be reintegrated with his children.

We recognize that termination of parental rights is a serious matter; the district court treated it that way. The district court arranged for Father's participation in the hearing by telephone from a Florida prison. The district court also made specific factual findings in support of its decision. We have carefully reviewed the hearing transcript and the case file, and we conclude that the district court's decision was supported by clear and convincing evidence. We therefore affirm its judgment.

Factual Background

Father and Mother were the parents of two children, F.C., born in 2006, and A.C., born in 2008. The State filed petitions to have the children deemed children in need of care in 2010, and both Father and Mother admitted the allegations of that petition and agreed to have the children declared in need of care. The children were removed from the home and placed under the care of St. Francis Community Services, which acted under contract with the Department of Social and Rehabilitation Services (SRS).

Initially, plans were made to attempt to reintegrate the children with their parents. But Father went into custody in April 2011, and in June 2011, the district court determined that reintegration was no longer a viable alternative. Mother relinquished her parental rights, but Father sought to maintain his. An evidentiary hearing was held in October 2011 on the State's motion to terminate Father's parental rights. Two witnesses provided substantive testimony: Megan Mans, a social worker at St. Francis Community Services, and Father.

Mans had been assigned to the case from the beginning, and she had prepared tasks the parents were asked to complete as part of the initial reintegration plan. She said that Father didn't attend the initial meeting at which she was to present those tasks to the parents, and when she later met with Father, his attorney didn't show up, and Father refused to go over the tasks without his attorney. Mans eventually mailed the plan to Father. The tasks it called for him to fulfill included completing a drug and alcohol evaluation and following all recommendations; giving random drug tests (through mouth swabs) with negative results; obtaining and maintaining employment; maintaining safe, stable, and drug-free housing; maintaining contact with St. Francis Community Services; completing a mental-health assessment; and completing parenting classes. Drug testing was ordered because the case had been initiated after reports to SRS that Father and Mother had been using methamphetamine and exposing the children to the drug.

Mans testified that Father had never completed a drug and alcohol evaluation even though she had attempted to help him schedule one. She reported that several mouth swabs had tested positive for marijuana and that Father had told her that the lab must not be doing its job right because he knew how to get around mouth swabs.

Mans said that when she visited Father's home in January 2011, there were car parts “strewn throughout the house and front yard,” and there was broken glass on the porch and in the house. She testified that one bedroom had a hole in the ceiling, and in an earlier report she had indicated that another room contained trash and dog feces. In her opinion, the home wasn't safe for young children. Mans attempted a second walk-through of the home in March 2011, but Father cancelled it.

Father had visitation sessions with the children beginning in November 2010. Mans reported that Father cancelled several visits before he left for jail, telling St. Francis personnel on one occasion when he cancelled a visit that he needed to be selfish and look out for himself. Mans said that Father's visits usually went “very well,” though she noted that he often played with his phone instead of interacting with the children. She also noted that St. Francis staff had to remind Father not to discuss the case or disparage Mother in front of the children and that, on one occasion, Father became verbally abusive with the caseworker who was monitoring the visit. Mans wrote in her earlier report that Father was then asked to sign a written agreement about his conduct at visitation sessions but that he refused because he is “ ‘an American and can say anything’ “ that he wants to.

Mans said that Father never completed a mental-health evaluation, although she again tried to help set up an appointment for him. She said he attended some parenting classes but didn't finish all the required sessions.

Mans said that she asked Father to submit proof of employment, such as receipts, work schedules, client lists, accounts receivable, or any other indication that he was earning a legal income. She said that he didn't provide that information.

Father had a different version of events. He said that he had been self-employed, though he admitted that he had had a hard time working after the children were removed from his home. He said that his failure to get a mental-health evaluation or a drug and alcohol evaluation was due to a lack of funds. He testified that he was drug free at the time of the termination hearing, and he denied Mans' testimony that he'd been verbally abusive during visitations.

The convictions on which Father was in jail in Florida were for dealing in stolen property and burglary of a structure. He faced additional charges in Florida for larceny, grand theft of a firearm, and dealing in stolen property. He also had an additional 60–day sentence in Harvey County, Kansas, that had not been served. According to Father, the Florida crimes all occurred before the children were born, and the Kansas offense in Harvey County occurred before the child-in-need-of-care petition was filed.

The district court granted the State's petition to terminate Father's parental rights. The court found that Father was unfit as defined in K.S.A.2011 Supp. 38–2269(a), which provides for termination of parental rights when “by reason of conduct or condition ... the parent [is] unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” The court noted that the children had already been out of Father's home for more than 1 year and that they would need to wait at least another 7 or 8 months for Father to be released from jail. The court also found that Father had failed to make reasonable efforts to follow the reintegration plan put forward by St. Francis Community Services, that he had failed to adjust his circumstances adequately to care for the mental and physical health of the children, that his incarceration left him unable to provide a stable and safe home, and that these conditions were “unlikely to change in the foreseeable future.” The district court also concluded that it was in the children's best interests to terminate Father's parental rights.

Father has appealed the termination of his parental rights to this court.

Analysis

Because of the importance placed on protecting parental rights, the evidence must be clear and convincing to terminate them. Clear and convincing evidence requires the fact-finder to believe “that the truth of the facts asserted is highly probable.” In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 (2008). Of course, the factual findings are made by the district court, which hears the evidence directly, not by the appellate court. Because the district court ruled in favor of the State, we must review the facts in the light most favorable to the State, after which we must determine whether a rational fact-finder could have found it highly probable by clear and convincing evidence that the Father's rights should be terminated. B.D.-Y., 286 Kan. at 705;In re K. W., 45 Kan.App.2d 353, Syl. ¶ 1, 246 P.3d 1021 (2011).

Father doesn't contest on appeal the initial determination that the children were in need of care. Once that determination has been made, then K.S.A.2011 Supp. 38–2269(a) provides that the court may terminate parental rights if it 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 a child and the conduct or condition is unlikely to change in the foreseeable future.” In determining whether a parent is unfit, the court may consider a number of factors set out in K.S.A.2011 Supp. 38–2269(b) and (c), any one of which may constitute appropriate grounds for termination of parental rights. See K.S.A.2011 Supp. 38–2269(f). In addition, if the court finds unfitness, it must also consider whether termination of parental rights is in the child's best interests. K.S.A.2011 Supp. 38–2269(g)(l); K.W., 45 Kan.App.2d 353, Syl. ¶ 2.

Looking at the evidence in the light most favorable to the State, Father failed to complete any of the goals found in the reintegration plan. He had positive drug swabs for marijuana, he didn't have safe housing for the children, and he couldn't verify any legitimate employment. Father insisted his right to speak was more important than the children's welfare, and he didn't fully take advantage of opportunities to see the children. In addition, as the court noted at the hearing, the children had been out of the home for more than 1 year, and they would have had to wait at least another 7 or 8 months for Father to be released from jail.

This provided clear and convincing evidence in support of the factor found in K.S.A.2011 Supp. 38–2269(b)(8)—“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.” In addition, this provided clear and convincing evidence in support of the factor found in K.S.A.2011 Supp. 38–2269(b)(9)—“whether the child has been in extended out of home placement as a result of actions or inactions attributable to the parent.” For subsection (b)(9) to justify terminating parental rights, however, one of the criteria of subsection (c) must also be met. Here, two of those criteria also appear to have been met: subsection (c)(1), “[f]ailure to assure care of the child in the parental home when able to do so,” and (c)(3), “failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home.”

We recognize that Father had a different view as to the facts of the case, but we must take the evidence in the light most favorable to the State. In addition, in determining whether Father's “conduct or condition is likely to change in the foreseeable future,” we are to consider “foreseeable future ... from the child's perspective, not the parent['s], as time perception of a child differs from that of an adult.” In re S.D., 41 Kan.App.2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009); accord In re D.T., 30 Kan.App.2d 1172, 1174–75, 56 P.3d 840 (2002).

Even if Father were blameless for his jail-induced absence, which began in April 2011, he had from the time the State filed its petition in October 2010 until April 2011 to get his life in order for the benefit of his children—yet he made no substantial progress when we view the evidence as we are required to do on appeal. The district court's conclusion that Father's parental rights should be terminated is supported by clear and convincing evidence.

Father has raised two other arguments on this appeal, but neither affects the outcome of the case.

When announcing its ruling orally in court, the district court noted that the case had been open more than 1 year and said, “The long and short of it is our guidelines indicate we can't keep these cases open for that long period of time without achieving some permanency.” Based on that statement, Father argues that the district court applied a presumption of unfitness under K.S.A.2011 Supp. 38–2271(a)(5) without making the findings of fact that would be required to do so. But the district court never mentioned this presumption, and it neither mentioned K.S.A.2011 Supp. 38–2271 from the bench or in the body of its written order. We conclude that the district court relied only on K.S.A.2011 Supp. 38–2269 for its ruling, and that statute—along with the evidence—provided a sufficient basis upon which to terminate Father's parental rights.

Father's final argument is that the district court shouldn't have proceeded with the termination hearing because Father testified that day that he had “signed over” his parental rights to his father. Father acknowledges, however, that except for the child-in-need-of-care proceedings, there were no adoption or other proceedings involving custody of these children pending in Florida, Kansas, or elsewhere that could bar the court from hearing the case. A parent's private agreement to “sign over” parental rights to someone else has no effect on the court's jurisdiction to proceed to final hearing in a child-in-need-of-care proceeding that has been properly instituted.

The district court's judgment is affirmed.