Opinion
112,464.
04-17-2015
In the Interest of J.G., Y/O/B XX/XX/2007, and In the Interest of S.G., Y/O/B XX/XX/2009. Children in Need of Care.
Mario Hamrick, of Kansas Legal Services, of Hutchinson, for appellant natural mother. Benjamin J. Fisher, of Hutchinson, for appellate natural father. Cheryl I. Allen, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Mario Hamrick, of Kansas Legal Services, of Hutchinson, for appellant natural mother.
Benjamin J. Fisher, of Hutchinson, for appellate natural father.
Cheryl I. Allen, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
T.G. (Mother) and D.G. (Father) are the natural parents of J.G. and S.G. In August 2014, the district court found clear and convincing evidence that they were unfit to parent J.G. and S.G. and that the conduct or conditions rendering them unfit was unlikely to change in the foreseeable future. The court terminated Mother's and Father's parental rights. On appeal, Mother contends the State failed to prove the conduct or condition rendering her unfit—namely her methamphetamine use—was unlikely to change in the foreseeable future. Father contends the court terminated him solely based on his incarceration without considering the efforts he had made from prison to maintain a relationship with J.G. and S.G.
However, extensive testimony from the social workers handling J.G .'s and S.G.'s cases indicated that Mother—a long-time methamphetamine user—continued to abuse drugs throughout the case and that despite her newfound sobriety, she was susceptible to relapse. Testimony also revealed Mother had never maintained stable employment or housing during the case. The record also reveals Father was terminated for many reasons, only one of which was his incarceration. Testimony revealed that Father—when he was out of prison—had been resistant to counseling and had failed to maintain stable employment or housing. Based on this testimony and other facts in the record, we find that sufficient evidence supports the district court's rulings.
Cases involving the termination of parental rights require a fact-based inquiry. In this case, the factual background is complex as it has been going on for well over 2 years. It involves the rights of both parents. The State had filed three motions to terminate parental rights and two termination trials had been held.
This case first began on June 1, 2012, after the State filed separate petitions for J.G. and S.G., alleging each was a child in need of care (CINC). These cases were never consolidated below, but the substance of the documents from the district court for each case was the same. The owner of a duplex had called police on Mother and Father for trespassing. The owner reported evicting the previous renter. However, Mother, Father, J.G., and S.G. had been staying in the duplex despite not having a lease or any utilities. Officers responded to the call, and Mother and Father were arrested for felony theft and criminal use of a financial card. The officers were also aware of Mother's history of drug use. J.G. and S.G. were released to their maternal grandparents, T.E. and R.E.
Based on these facts, the State's petitions alleged J.G. and S.G. were CINCs because their parents were staying at a residence illegally, both parents had been arrested on felony theft and criminal use of a financial card charges, and drug use by Mother. On June 5, 2012, the court ordered J.G. and S.G. to be placed in the custody of the Kansas Department of Children and Families (DCF) (formerly Social and Rehabilitative Services). The court ordered the parents to submit to frequent and random drug tests and Father was to undergo a psychological evaluation. Mother failed a drug test that day.
Mother and Father each entered a no contest statement as to the allegations in the States' petition. As such, in July 2012, the district court adjudicated J.G. and S.G. each to be a CINC.
The family immediately began receiving assistance from social service agencies. Sarah Hedrick, a social worker and investigator with DCF, investigated this case. The primary concerns with the family were the lack of housing, Mother's and Father's lack of employment, and Mother's drug use. By July 2012, at least three individuals from St. Francis Community Services (St.Francis) had begun working with the family: Linda Crenshaw, a clinical therapist and licensed social worker, Sonya Sanborn, a social worker from St. Francis, and Susan Bell, a family support worker. Dale Anderson, a psychologist at Horizons Mental Health Center (Horizons), performed a psychological evaluation on Father in July 2012. Mother received outpatient treatment through Cindy Dickey, a substance abuse counselor with The Substance Abuse Center of Kansas from October 2012 through January 2013. Father was referred to Vocational Rehab Services to help him find a job.
On January 29, 2013, Father was convicted of burglary and theft in Reno County case No. 11–CR–886.
In February 2013, the State filed a motion requesting a permanency hearing because after 9 months, Mother and Father had not resolved their issues with housing, drug use, and criminal activity. Between June 2012 and March 2013, Mother had failed at least five drug tests and admitted to use on a sixth occasion. In March, the district court determined reintegration was no longer a viable option.
Alicia Rose, a therapist at Horizons, began working with Mother in March 2013. She worked with Mother through February 2014.
On March 14, 2013, Father's probation was revoked in two Reno County cases—12–CR–478 and 12–CR–488. The underlying convictions were for three counts of theft and illegal use of a financial card. On March 15, 2013, he was sentenced to 38 months in prison.
On May 2, 2013, the State filed its first motion to terminate the parental rights of Father and Mother based on Mother's continued drug use and Father's incarceration. However, the State ultimately withdrew this motion as Mother was successfully working towards progress in her case plan tasks and reintegration with J.G. and S.G.
On May 9, 2013, Father was convicted of aggravated burglary and theft in Reno County case No. 13–CR–170.
In June 2013, St. Francis was prepared to reintegrate the children with Mother. However, DCF received a report of abuse against the children naming Mother and Father as the perpetrators. The report needed to be investigated prior to reintegrating Mother with J.G. and S.G. Mother did not remain sober during the investigation. She began submitting drug tests positive for methamphetamines in October 2013.
Erin Woods, an addiction counselor from Mirror, Inc. began working with Mother in November 2013. She worked with Mother for 4 months and then referred her to City on a Hill once Mother was incarcerated.
On November 25, 2013, the State filed its second motion to terminate the parental rights of Mother and Father.
The first trial was held on January 13, 2014. A transcript of this trial is not included in the record. It appears the State only proceeded against Mother as Father's counsel had a conflict and withdrew at the trial. The district court issued its opinion on February 7, 2014. It determined the State had not met its burden and that Mother deserved another chance based on her relationship with J.G. and S.G. The court expressed a need to see Mother maintain independent housing and employment, pass drug tests, and obtain a psychological evaluation. The court warned Mother that “if [she] fails in this endeavor, she should have no further expectations of reintegration.” The court set the case for a permanency hearing in June 2014.
Mother did not heed the district court's warnings. She failed a drug test on February 17, 2014, 10 days after the opinion was issued and again on March 5, 2014. Mother also reported using methamphetamines three times in February 2014 and alcohol on February 26, 2014, and March 12 and 19, 2014.
On April 25, 2014, the State filed its third motion to terminate parental rights of Mother and Father. The court held its second trial on June 30, 2014. The testimony and evidence revealed the following:
Testimony from Social Service Providers:
Hedrick—the DCF investigator—testified that in the context of DCF investigations, an unsubstantiated report is one which the facts and circumstances do not provide clear and convincing evidence of abuse or neglect. DCF received the following reports in regards to J.G. and S.G.:
1. June 2013—unsubstantiated report of sexual abuse of J.G. and S.G. by Father.
2. February 2013—unsubstantiated report of physical abuse of S.G. by an unknown perpetrator.
3. July 2012—unsubstantiated report of physical abuse of J.G. by R.E.
4. June 2012—substantiated report that J.G. and S.G. were without proper care and control by Mother and Father—the report that initiated this case
5. March 2012—unsubstantiated report of emotional abuse and medical neglect of J.G. and S.G. by Mother and Father. The report alleged that domestic violence between the parents occurred in front of the children and that S.G. had substantial dental needs and J.G. had two injuries requiring stitches. By the time DCF investigated, S.G. had received dental treatment and there was no indication J.G. needed stitches, so the report was deemed unsubstantiated.
6. March 2010—report that J.G. and S.G. were without proper care or control. Mother and Father expressed the need for services and reported a verbal altercation. No further action was taken.
7. January 2010—report that J.G. and S.G. were without proper care or control by Mother and Father due to domestic violence and drug use. Mother and Father denied both, and nothing further came of the report.
8. September 2008—report that J.G. was without proper care or control by Mother and Father. Parents received community resources, but no further action was taken.
The children had spent most of their lives living with T.E. and R .E., maternal grandparents. However, T.E. had obtained a protection from abuse order (PFA) against Father after an argument had turned physical in early 2012. Therefore, Mother, Father, J.G., and S.G. moved out in 2012 and lived either with other people or in hotels.
Linda Crenshaw—the clinical therapist with St. Francis—testified her goal had been to improve the parent/child interactions and to help the children with their emotional regulation. She did family therapy and individual therapy with J.G. and S.G. Father was involved in family therapy for 2–6 months prior to his incarceration.
Crenshaw discussed Father's struggle to provide structure and set boundaries for J.G. and S.G. Father was easily frustrated and avoided disciplining J.G. and S.G. Father saw no issues with his parenting skills and made very little progress during therapy. Mother was nurturing and engaging with J.G. and S.G. but also struggled to set structure for them. Family therapy ended all together when Mother was also incarcerated. There was also little improvement with Mother's parenting skills.
Crenshaw was still working with J.G. and S.G. individually at the time of trial.
Susan Bell—a St. Francis family support worker—testified that a support worker helps the social worker with transportation, supervising visits, paper work, and anything else the social worker needs. In this case, Bell drove J.G. and S.G. to visits and supervised the visits. The issues she noticed for this family were Father's angry outbursts and foul language at visits and Mother's continued drug use. Bell saw Father's anger and foul language directed at Mother, J.G., and S.G. Besides his anger and language, Father was generally appropriate around the children.
Sonya Sanborn—a St. Francis social worker—testified her two main concerns were Mother's drug use and the parent's lack of housing. In July 2012, Mother was living with her parents and Father was living at the motel where he worked. At the time of the trial, Sanborn had been working with the family for over 2 years. She had worked continuously with Mother to help her find suitable housing. She also worked with both Mother and Father on maintaining employment when they were not incarcerated.
Sanborn received objectives from the DCF social worker and then turned those in to case plan tasks for the family. DCF required case plan tasks to be set in 6–month increments. During the first 6 months, reintegration was the goal. Mother and Father obtained an apartment for a brief time but were eventually evicted. Neither parent maintained consistent employment. Mother tested positive for drugs twice.
During the next 6 months, reintegration remained the goal. Mother and Father completed the Strengthening Families Program, Mother completed a drug and alcohol evaluation, and Father obtained a psychological evaluation. However, housing was still an issue. Mother and Father reported obtaining housing a second time but again were evicted. Mother and Father then reported they were staying at different friends' houses. When Father went to jail, Mother moved back in with her parents. Mother entered outpatient treatment in September 2012, completed it in January 2013, but then tested positive for methamphetamines in February 2013.
During the third 6–month period, the first goal remained reintegration but a second goal of adoption was added because Mother continued to test positive for drugs and Father was incarcerated. The State had filed its first motion to terminate the parental rights of Mother and Father in May 2013. However, Mother began doing better. She had a job and was attending mental health classes and group therapy. Mother appeared more focused on doing what she needed to do to get J.G. and S.G. back. Therefore, St. Francis requested that the motion to terminate be dismissed and it was withdrawn.
Sanborn said Mother's sobriety was temporary; she soon began testing positive for methamphetamines. After the State filed a second motion to terminate, the district court held a trial on the termination of Mother's rights. Sanborn noticed a pattern with Mother of periods of sobriety followed by relapse. Additionally, during the time between the court's first order granting Mother one more chance and the date of the second trial, the social worker was not aware of Mother having a job or independent housing.
Mother went to jail for her positive drug tests, then went to inpatient therapy at City on the Hill, followed by inpatient therapy at Ashby House. Mother still lived at Ashby House at the time of the second termination trial. She indicated that children are welcome to live at Ashby House.
Sanborn testified Mother and Father had maintained independent housing for less than 3 months total. She was only aware of Mother having two jobs during the 2 years of this case. Neither job was long term. Sanborn was not aware of any additional services St. Francis could have offered Mother.
Sanborn testified there was little she or St. Francis could do to help Father once he had been incarcerated. They still contacted him monthly by phone or letter. However, prior to Father's incarceration, Sanborn had some concerns about him. He had been in jail a few times prior to the current incarceration. During a supervised visit, Father got upset with the children for not moving quickly enough and began yelling and cussing at them.
Also, prior to being incarcerated, Father often named a lot of places where he could get a job. Father declined vocational rehab because he claimed he knew how to get a job, but he never actually got a job. Father reported he and Mother were living in an apartment and instead of paying rent, he worked as a handy man for the landlord. However, they had been evicted for not paying rent after only a few months. Father also spent some time living in a hotel. Finally, although Father testified he would be able to provide money to Mother through work release so she could obtain housing, the social worker testified she was concerned that Mother still might not be successful due to her pattern of drug use.
Although Mother's behavior was often appropriate at visits, Sanborn had concerns about Mother's and Father's behavior at visits. They often argued and used profanity. There was a lot of whispering between the them, so social workers felt they always had to supervise the visits.
Dale Anderson—a psychologist at Horizons—testified he had diagnosed Father with adjustment disorder with mixed disturbance of emotions and conduct. In layman's terms, that meant Father showed symptoms of anxiety or depression based on a particular stressor, such as going to prison or having his kids taken away. Medication is not usually helpful for an adjustment disorder. An adjustment disorder does not generally preclude an individual from working.
Cindy Dickey—an addiction counselor at the Substance Abuse Center of Kansas—testified she had worked with Mother from October 2012 until January 2013. Mother struggled to understand the concept of addiction and recovery and wanted to blame others for her addiction. Dickey determined Mother understood she had a problem, but she was not making any changes in her life to move forward. Dickey felt she had provided Mother with the tools and materials she needed to fight her addiction, but Mother continued to test positive for methamphetamines. Dickey testified that relapse could be part of the recovery process. However, generally the number of times an individual has completed treatment and then relapsed immediately is an indicator to her that the person had not followed through the steps to stay clean and maybe had no intention to stay clean.
Alcia Rose—a therapist at Horizons—testified she had worked with Mother beginning in March 2013 until January 2014. She observed anxiety and depression symptoms and panic disorder in Mother. Although Rose felt continued therapy would help Mother cope, Mother stopped showing up to therapy.
Erin Woods—a counselor at Mirror, Inc.—testified she worked with Mother on her addiction to methamphetamine and her alcohol use from November 2013 until March 2014. Mother did well for about a month but very quickly began using drugs again and was dishonest with Woods. Mother admitted to using methamphetamine on February 6, 2014. Mother reported to Woods she had failed a drug test on February 17, 2014, with St. Francis. Mother initially denied using drugs but later admitted to using methamphetamines in February, 2014. Mother also reported alcohol use in February and March, 2014. After Mother was incarcerated, Woods quit working with her and referred her to City on the Hill.
Father's Testimony:
Father testified he had been arrested in February 2013, during this case. His earliest release date was April 30, 2016. Father has a fairly extensive criminal history dating back to 1989. He has been convicted of credit card fraud, forgery, unlawful use of a credit card in 1989; attempted indecent liberties with a child in 1991; possession of drugs in 2001; nonsupport of a child in 2002; criminal use of a financial card and two theft convictions in 2012; and aggravated burglary and theft in 2013. Father has also been incarcerated for parole violations.
Father acknowledged that while he and Mother were together, they often lived with Mother's parents. However, because T.E. had taken out a PFA against him, he was unable to move back in with T.E. and R .E. at the start of this case.
Father acknowledged receiving case plan tasks from St. Francis to work towards reintegration with J.G. and S.G. Father testified he and Mother completed two of them but he was upset when they received additional case plan tasks. He “didn't understand why we had to continue doing more programs when we completed two of the main ones we were supposed to complete.”
Father testified he had taken part in family therapy prior to being incarcerated. He was resistant to help because he “figured at my age ... I know how to raise kids.”
While incarcerated, Father completed the Inside Out Dad Program, which helped with parenting skills. He signed up for the Strengthening Family Program but was on a waitlist as of the trial. He called J.G. and S.G. every month and wrote them often. Father passed all the drug tests he submitted during this case.
Mother's Testimony
Mother testified that in the previous 2 years of this case she never had a home where she paid rent. Her kids had lived the majority of their life with her parents. She had held a few jobs throughout this case but never any long term. She left the positions due to her drug use or incarceration and some of the work was only temporary work. During the 2 years of this case, Mother had been incarcerated three times. She did not remember the things St. Francis had told her she needed to do in order to be successful and have her children reintegrated with her but she recognized she should know. Mother has had an 11–year on-and-off addiction to methamphetamines. She acknowledged her struggle to stay clean and that she had tested positive for drugs several times during this case. Mother admitted that her pattern is to participate in drug treatment, get out, and begin using drugs again fairly quickly.
Mother testified she would be able to stay sober this time. She claimed this time would be different because at Ashby House she was able to address some deep-seated issues behind her addiction and she had found her higher power.
Mother also could not identify any additional services she could have been provided to help her stay sober. At the time of the trial, she had been sober for less than 2 months. She testified she intended to divorce Father.
At the close of the evidence, the district court took the matter under advisement. On August 14, 2014, the court issued its memorandum opinions and journal entries in which it terminated Father and Mother's parental rights to J.G. and S.G. Although it issued separate opinions journal entries for J.G. and S.G., the substance of each opinion is the same.
The district court made extensive factual findings similar to the facts laid out above, acknowledging the lengthy history of this case, Mother's inability to remain sober, Father's extensive criminal history, including crimes committed during this case, and an overview of the various services the family received during this case.
After hearing testimony and considering the State's exhibits, the district court found by clear and convincing evidence that Mother and Father were unfit by reason of conduct or condition which rendered them unable to properly care for J.G. and S.G. and that the conduct or condition was unlikely to change in the foreseeable future. The court also determined that terminating Mother's and Father's parental rights was in J.G.'s and S.G.'s best interests. See K.S.A.2014 Supp. 38–2269(g).
Mother and Father filed separate appeals citing different errors, which have been consolidated, in the district court's ruling. Mother argues on appeal that the court's finding of unfitness is not supported by clear and convincing evidence. She also contends the condition at issue—her drug use—is not likely to continue for the foreseeable future as she has addressed the reasons for her drug use, she is committed to her family, and she has encountered her higher power.
Father contends the district court terminated his rights solely on the basis of his incarceration. He contends the court erred in failing to make findings on whether he had pursued the options available to him during his incarceration. Father suggests if the court had considered his efforts while incarcerated—including calling his children during their visits with Mother and mailing them birthday and Christmas cards—it would not have terminated his rights.
When reviewing the district court's decision to terminate parental rights, we must “consider whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence,” that the parent's rights should be terminated. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In making this determination, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
If a child is adjudicated a child in need of care, parental rights may be terminated 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 a child and the conduct or condition is unlikely to change in the foreseeable future.” K.S.A.2014 Supp. 38–2269(a). The Revised Kansas Code for Care of Children lists a number of nonexclusive factors the district court must consider in determining a parent's unfitness. K.S.A.2014 Supp. 38–2269(b), (c). Any one of the factors may, but does not necessarily, establish grounds for terminating the parent's rights. K.S.A.2014 Supp. 38–2269(f). The district court is not limited to the statutory factors, either. See K.S.A.2014 Supp. 38–2269(b).
In the present case, the district court found Mother and Father unfit based on multiple factors. Some factors applied to both Mother and Father, some applied only to Mother, and some applied only to Father. The court did not cite to K.S.A.2014 Supp. 38–2269, but used the language of the statutory factors. Therefore, the relevant statutory provision will be cited herein. Those factors are:
• Mother's continued use of dangerous drugs for such duration that she was rendered unable to care for the needs of her children, satisfying K.S.A.2014 Supp. 38–2269(b)(3) (finding unfitness due “to the use of ... 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”).
• Father's history of felony convictions and current incarceration, satisfying K.S.A.2014 Supp. 38–2269(b)(5) (finding unfitness due to “conviction of a felony and imprisonment”).
• The parents' physical, emotional, and mental neglect of their children in failing to provide for their emotional and physical needs, resulting in their removal from the home, satisfying K.S.A.2014 Supp. 38–2269(b)(4) (finding unfitness due to “physical, mental or emotional abuse or neglect or sexual abuse of a child”).
• The reasonable efforts made by the agencies involved in J.G.'s and S.G.'s cases failed to rehabilitate the family due to the parents' resistance to change, satisfying K.S.A.2014 Supp. 38–2269(b)(7) (finding unfitness due to the “failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family”).
• The parents' continued lack of effort to adjust their circumstances, conduct, or condition to meet the needs of their children, including Mother's only sporadic completion of case plan tasks, satisfying K.S.A.2014 Supp. 38–2269(b)(8) (finding unfitness due to 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”).
• The parents' failure to carry out reasonable plans approved by the court directed towards reintegration of the children into the parental home, satisfying K.S.A.2014 Supp. 38–2269(c)(3) (finding unfitness due to “failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home”).
• The parents' failure to wholly invest in the reintegration process and their inability or unwillingness to gain insight into their problems and how they could be remedied.
Termination of Mother's Rights
Generally, the first step we must undertake is to determine whether the district court's findings of unfitness are supported by clear and convincing evidence. However, Mother does not brief the challenge to the findings of unfitness in her arguments despite her issue statement indicating she would. An issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). Nonetheless, even if she had properly briefed the issue, the challenge would fail. The court's findings of unfitness as to Mother are supported by clear and convincing evidence.
Mother acknowledges she has submitted several drug tests that were positive for methamphetamines and has had relapses after her periods of sobriety. She also admitted to having an 11–year on and off addiction to methamphetamine but only 2 months of sobriety as of the termination trial. Mother's drug use, coupled with her failure to maintain employment and stable, independent housing support the finding that she had failed to provide for the emotional and physical needs of J.G. and S.G. Those same facts, plus reports of Mother dropping out of counseling, support the finding that Mother had failed to adjust her circumstances to meet the needs of J.G. and S.G. and that she failed to wholly invest in the reintegration process.
Turning to the reasonable efforts made by the various agencies, the testimony and evidence presented in this case are full of examples of the efforts made by social services for the benefit of this family, including mental health evaluations, family and individual therapy, transportation, inpatient and outpatient addiction therapy, and vocational rehabilitation services. These efforts were more than reasonable, yet after more than 2 years, the family had not been reintegrated.
Finally, despite Mother's failure to carry out a reasonable plan towards reintegration, the social services agency workers all indicated that the main objectives for Mother were obtaining stable, independent housing, maintaining employment, and staying sober. However, Mother testified she maintained independent housing for less than 3 months with Father and never individually throughout the 2 years of this case. Though she had brief periods of employment, her drug use and incarceration continued to get in the way of her maintaining a job. Based on these facts, a rational factfinder could have found it highly probable that Mother's use of methamphetamine and her inability to maintain housing or a job rendered her unable to care for J.G.'s and S.G.'s ongoing physical, mental, or emotional needs.
Our next step is to determine whether clear and convincing evidence supported the district court's determination that Mother's behavior was unlikely to change in the foreseeable future. See K.S.A.2014 Supp. 38–2269(a). In its ruling, the district court explained that Mother was aware of the need for her success in this case. The court had denied the State's first motion to terminate Mother's and Father's rights based on the age of J.G. and S.G. plus Mother's relationship with them. However, the court unequivocally warned Mother that this was her last opportunity to show progress at sobriety, employment, and housing. Here, the district court considered the 2–year history of this case in which Mother received various services to help her remain sober and find housing and work, but Mother had failed consistently to maintain her sobriety, a home, or a job.
Mother argues the district court erred in this finding. She contends the State failed to prove her drug use was likely to continue for the foreseeable future. Instead, Mother contends she has addressed the reasons for her drug use, she is committed to her family, and she has encountered her higher power. However, a court may predict a parent's future unfitness based on his or her past history. In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982). Moreover, the term foreseeable future is measured from the child's perspective and takes into account a child's perception of time. In re S.D., 41 Kan.App.2d 780, 790, 204 P.3d 1182 (2009). This court has considered periods of time as short as 7 months to be the foreseeable future from a child's perspective. 41 Kan.App.2d at 790.
Here, the district court seemed to conclude there was no reason to believe additional time would produce results, given Mother's record since the case had begun. See In re R.S., No. 111,027, 2014 WL 5408429, at *9 (Kan.App.2014) (unpublished case). J.G. and S.G. came into custody when they were 4 1/2 and 3 years old and remained in out-of-home placement through the termination trial—over 2 years. Although Mother currently had housing at Ashby House where J.G. and S.G. could live, she identified no plan for housing after leaving Ashby house. Also, Mother admitted she had struggled with drug addiction for over a decade—including the entirety of this case—but she had only been sober for 2 months at the time of the termination hearing. Mother acknowledged her pattern of seeking both outpatient and inpatient help for her drug addiction and remaining sober in the short term but always returning to methamphetamine. Mother had failed to maintain employment throughout the case and did not have a job at the time of the trial and the financial means to support her children. These facts support the district court's conclusion it was highly probable Mother would be unable to care for J.G. and S.G. in the foreseeable future.
The last consideration is whether the district court correctly determined that terminating Mother's parental rights was in J.G.'s and S.G.'s best interests. K.S.A.2014 Supp. 38–2269(g)(1) provides that even after a finding of unfitness, the district court must determine whether the termination of parental rights is in the best interests of the child.
Because it hears the evidence directly, the district court is in the best position to determine the best interests of the child, and an appellate court cannot overturn it without finding an abuse of discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002) ; In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied 291 Kan. 912 (2010). An abuse of discretion occurs when the district court acts in an unreasonable, fanciful, or arbitrary manner, or when the court bases its decision on an error of fact or an error of law. Northern Natural Gas Co. v. ONEOK Field Services, Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
Mother does not challenge this finding on appeal. However, based on the evidence, a reasonable person could have agreed with the district court on this finding. At the time of the trial, Mother was newly sober despite a long history of drug abuse and relapse, continued to remain unemployed with no plan for employment, had never lived independently with her children, and had no long term plan for the future. The social services providers testified to Mother's acknowledgement of a drug problem but a resistance to change and a failure to accept ownership. The district court could fairly conclude that after 2 years of the courts and social services agencies unsuccessfully trying to help this family, termination was in the best interests of J.G. and S.G. and it served their physical and emotional health to terminate Mother's rights.
Ultimately, the evidence provided at the termination trial demonstrated that Mother cared deeply for J.G. and S.G. but could not adequately provide for their needs in the near future. As such, the district court's decision to terminate Mother's parental rights is supported by clear and convincing evidence.
Termination of Father's Rights
On appeal, Father claims the district court terminated his parental rights solely on the basis of his incarceration and did so without considering how he had taken advantage of the opportunities and options available to him while incarcerated. Father misreads the court's basis for terminating his rights. The court terminated Father's rights for the following reasons: (1) his history of felony convictions and incarceration; (2) his failure to provide for J.G.'s and S.G.'s emotional and physical needs; (3) the failure of reasonable efforts by the agencies to rehabilitate the family; (4) Father's continued failure to adjust his circumstances; (5) Father's failure to carry out reasonable plans; and (6) Father's failure to wholly invest in the reintegration process.
Father fails to acknowledge or challenge the bases for appeal, but those findings are supported by clear and convincing evidence, as well. In regard to his failure to provide for J.G.'s and S.G.'s emotional needs, the testimony and evidence presented indicated Father struggled to maintain employment or independent housing, he failed to provide J.G. and S.G. with structure, he had angry outbursts directed at and in front J.G. and S.G., and he was resistant to changing his parenting style. In regard to the failure of reasonable efforts of the agencies to rehabilitate the family, the evidence reveals the agencies worked directly with Father to help him find housing, find a job, and create structure for J.G. and S.G. However, Father refused vocational rehabilitative services and made little progress in family therapy. Prior to his incarceration, Father failed to maintain a job, failed to find independent housing, and showed little progress at parenting J.G. and S.G. These same facts, plus Father's lengthy criminal history and continued criminal activity and incarceration, support the finding that Father continually failed to adjust his circumstances to meet the needs of J.G. and S.G.
The district court also found that Father had failed to carry out a reasonable plan. In support of this, the agency workers discussed their efforts to assist Father in meeting the case goals. At the time of the termination trial, Father was incarcerated so he had achieved none of the case plan tasks. Prior to his incarceration, he had failed to keep a job or stable housing and was often resistant to changing his parenting methods. Collectively, the facts discussed herein indicate the court's determination that Father failed to wholly invest in reintegration of the family is also supported by clear and convincing evidence. The facts discussed herein indicate a rational factfinder could have determined Father was unfit based on the factors cited by the district court.
We next consider whether the district court's finding that Father's conduct or condition was unlikely to change in the foreseeable future was supported by clear and convincing evidence. See K.S.A.2014 Supp. 38–2269(a). Father does not challenge the court's determination that his behavior was unlikely to change in the foreseeable future. This finding is supported by clear and convincing evidence. Our courts have determined that incarceration for as few as 7 additional months from the date of the hearing, along with other factors, was sufficient to establish that the parent's condition would not change in the foreseeable future. See In re M.B., 39 Kan.App.2d 31 ; see also In re S.D., 41 Kan.App.2d at 790 (11 months considered “foreseeable future” when a child would have been in out-of-home placement for 27 months total); In re C.C., 29 Kan.App.2d 950, 954, 34 P.3d 462 (2001) (mother's condition—incarceration—unlikely to change in foreseeable future when children would linger in foster care for a total of 30 months if required to wait until mother was released from prison).
At the time of the trial, Father had at least 20 months remaining on his sentence. J.G. and S.G. had already been in custody for 2 years. Additionally, Father had a 25–year history of criminal activity, suggesting his inability to refrain from criminal activity in the long term. His most recent conviction occurred during this case and resulted in his current incarceration. The length of his remaining sentence, coupled with his lack of progress on case tasks prior to his incarceration, support the district court's conclusion that it was highly probable that Father would be unable to care for J.G. and S.G. in the foreseeable future.
The last consideration is whether the district court correctly determined that terminating Father's parental rights was in J.G.'s and S.G.'s best interests. Father does not contend the court abused its discretion in determining it was in J.G.'s and S.G.'s best interests. Based on the evidence, a reasonable person could have agreed with the court on this finding. Father had been in and out of prison since 1989 and was incarcerated at the time of the trial. Additionally, prior to his incarceration, he made little progress in family therapy and had failed to maintain a job or stable housing.
Again, the evidence provided at the termination trial demonstrated that Father loved J.G. and S.G., but could not adequately provide for their needs in the near future. As such, the district court's decision to terminate Father's parental rights is supported by clear and convincing evidence.
Conclusion
Although both Mother and Father loved their children and made minor progress throughout this case, neither evidenced an ability to refrain from engaging in the behaviors preventing them from providing J.G. and S.G. proper care. For example, Mother struggled to curb her drug use for the whole of the case and needed longer-term sobriety before she could be a parent to S.G. and J.G., and Father had a history of felony convictions that resulted in his incarceration, including his current incarceration, making him unable to parent his children. Ultimately, the court properly determined J.G.'s and S.G.'s interest in permanency was best served by the termination of Mother's and Father's parental rights. Accordingly, the district court's judgment is affirmed.
Affirmed.