Opinion
No. 111,848.
2014-12-12
In the Interest of C.M., A Child Under Eighteen (18) Years of Age.
Appeal from Greenwood District Court; Mike Ward, Judge. Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant natural father. Kellie E. Hogan, of Kansas Legal Services, for appellee state of Kansas.
Review Denied March 12, 2015.
Appeal from Greenwood District Court; Mike Ward, Judge.
Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant natural father. Kellie E. Hogan, of Kansas Legal Services, for appellee state of Kansas.
R.W. (Father), the natural father of C.M., appeals from the decision of the district court to terminate his parental rights. Based on a thorough review of the record, we find clear and convincing evidence supports the district court's determination that Father is unfit and that the conduct or condition rendering him unfit is unlikely to change in the foreseeable future. We also find the district court did not abuse its discretion in finding termination would be in C.M.'s best interests. Based on these findings, we affirm the district court's termination decision.
CM. was born in 2012. At that time, C.M.'s mother (Mother) was married to J.M. (Mother's husband). The day after C.M.'s birth, the State filed a petition alleging that he was a child in need of care. After adjudication, Mother and Mother's husband relinquished their parental rights to CM. At some point during these proceedings, Mother informed a family support worker that Father might be C.M.'s natural father. A paternity test was performed, which confirmed the information provided by Mother. Father received a letter informing him that he was C.M.'s natural father on September 29, 2012.
On October 4, 2012, approximately 5 days after Father received this letter, he was arrested for unlawful possession of marijuana with intent to distribute, unlawful cultivation of marijuana, and failing to have a tax stamp. Father was convicted of all three of these offenses in Greenwood County. Father also was arrested on October 4 for a separate drug offense involving marijuana. Father was convicted of this offense in Butler County.
Notwithstanding Father's arrest, the contracting agency with the Kansas Department for Children and Families developed a case plan for Father as C.M.'s biological father. In this plan, Father and his wife were assigned various tasks to complete in order to work towards the goal of reunification. The tasks included taking parenting classes, utilizing the skills learned in the parenting classes, completing a mental health intake, obtaining employment or providing proof of disability, completing a drug and alcohol assessment, submitting to random urinalysis (UA) or hair follicle tests upon request, providing documentation such as paid utility bills, and allowing access to their home upon request.
On April 11, 2013, C.M. again was adjudicated a child in need of care, this time with respect to Father. The court adopted a dual case plan goal of both reintegration with Father and termination. Supervised visitation between Father and C.M. occurred from May 2013 until October 2013. There were no more visits after October 25, 2013, the date Father was sentenced to 88 months in prison for the three convictions in Greenwood County. It is unclear from the record on appeal what sentence the district court in Butler County imposed on Father as a result of the marijuana conviction. Nevertheless, Father's earliest possible prison release date is January 14, 2020.
A termination hearing was held on January 23, 2014. At the hearing, the State introduced evidence documenting not only the crimes of conviction for which Father was currently serving prison sentences, but also evidence of two previous criminal convictions for which Father had served prison sentences. Specifically, Father was convicted of felony terroristic threat and misdemeanor assault in 1986 and spent 120 days in prison. In 1994, he was convicted of, among other offenses, conspiracy to possess marijuana, which resulted in his incarceration from 1995 to 2000.
Catherine Wiggins, a family support worker with St. Francis Community Services (St.Francis), testified at the termination hearing. Wiggins stated Father completed a majority of his case plan tasks prior to his incarceration in October 2013. Wiggins noted, however, that Father did not complete UA tests when requested. Father informed St. Francis that he was completing UA tests as part of his probation, but St. Francis was unable to obtain those results. Although Father specifically was asked to submit to a UA test on two different dates in August and September 2013, he did not show up to take either one. Shawn Dixon, a case manager with St. Francis, testified that Father also missed a UA test requested in June 2013.
With regard to the issue of visitation, Dixon testified that she and her supervisor decided to end visits between Father and CM. after Father was incarcerated because it would not be in C.M.'s best interests to bring him into a correctional facility, given C.M.'s young age and the relatively few visits that had taken place to date. Dixon went on to testify that, in her opinion, it was not in C.M.'s best interests to wait until Father was out of prison to attempt to reintegrate CM. with Father.
Father also testified at the hearing. In support of his challenge to the court's finding that he was unfit, Father stated he was appealing his conviction and sentence and maintained he was only guilty of possession of marijuana. Father explained that he had used marijuana for pain resulting from fibromyalgia, but he no longer wished to be around the drug. Father admitted that he could not parent his child while incarcerated but argued that his wife could care for CM. while he was in prison and bring CM. to prison for regular visits.
After hearing the evidence, the district court terminated Father's parental rights. In support of termination, the court found that Father had been convicted and sentenced to prison and/or jail three times in his adult life and that Father's current incarceration on felony charges was a condition that was unlikely to change in the foreseeable future. The court also found that Father had failed to adjust his circumstances to meet the needs of CM. and that Father suffered from cannabis dependence. Finally, the district court found that it was in C.M.'s best interests to terminate Father's parental rights. Father appeals.
In order for the district court to terminate parental rights, the State must have proved by clear and convincing evidence that (1) the parent is unfit and (2) the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future. K.S.A.2013 Supp. 38–2269(a). The State also must have proved, albeit only by a preponderance of the evidence, that termination is in the best interests of the child. K.S.A.2013 Supp. 38–2269(g)(1); see In re R.S., 50 Kan.App.2d ––––, 336 P.3d 903, 910 (2014).
Notably, our standard of review on appeal necessarily depends on the State's burden of proof at the termination proceedings. If the issue on appeal relates to the district court's decision regarding current and future unfitness, the appellate court reviews all the evidence, in the light most favorable to the State, to determine whether it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that a parent is unfit and the conduct or condition rendering the parent unfit is unlikely to change in the foreseeable future. In re B.D.-Y., 286 Kan. 686, 691, 705, 187 P.3d 594 (2008). If, however, the issue presented on appeal relates to a decision regarding the best interests of the child, the decision is reviewed for abuse of discretion. In re R.S., 336 P.3d at 910. In this appeal, Father raises issues relating to current fitness, future unfitness, and the best interests of the child.
K.S.A.2013 Supp. 38–2269(b) provides a nonexclusive list of factors a district court should consider when determining whether a parent is unfit. The existence of any one factor listed in K.S.A.2013 Supp. 38–2269 standing alone may, but does not necessarily, establish grounds for termination of parental rights. K.S.A.2013 Supp. 38–2269(f). Here, the district court specifically relied on the following two statutory factors in determining Father was unfit to properly care for C.M.: K.S.A.2013 Supp. 38–2267(b)(5) (conviction of a felony and imprisonment) and K.S.A.2013 Supp. 38–2267(b)(8) (lack of effort on the part of a parent to adjust the parent's circumstances, conduct, or conditions to meet the needs of a child).
Citing to the holding in In re S.D., 41 Kan.App.2d 780, Syl. ¶ 8, 204 P.3d 1182 (2009), Father argues the district court erred in relying solely on the fact that he had a felony conviction and was incarcerated without considering the extent to which he has made reasonable attempts while in prison to contact and maintain an ongoing relationship with CM. Conspicuously absent from Father's argument, however, is any evidence that since becoming incarcerated he has made any affirmative attempt to maintain his relationship with CM. Although the caseworkers at St. Francis decided it would not be in C.M.'s best interest to physically visit Father in prison, Father does not assert, let alone provide evidence to prove, that he has made any other attempt to maintain contact with his child, e.g ., phone calls, mailings, or even a request to have Father's wife cleared for visits. Thus, In re S.D. is readily distinguishable on the facts.
Next, Father challenges the court's finding that he failed to adjust his conduct to meet the needs of CM. Specifically, Father asserts he did not engage in any criminal activity after a case plan was developed for him and he successfully completed the assigned tasks within his case plan. But, as the district court noted, Father's current prison sentence was based on criminal offenses committed by Father after learning he may be C.M.'s natural father and after receiving confirmation that he actually was CM.'s natural father. Given Father already had been incarcerated three times since becoming an adult, the court found Father had established a pattern of criminal conduct leading to imprisonment.
As to the assigned case plan, the district court acknowledged that Father had done a reasonably good job working toward completing the tasks assigned. But the court found significant the fact that Father failed three different times to comply with requests that he take a UA test. Of course, this particular task in his case plan was critical because it directly addressed his drug use.
For the reasons stated above, we find clear and convincing evidence supports the district court's finding that Father was unfit to properly care for CM. based on Father's conviction of a felony and imprisonment (K.S.A.2013 Supp. 38–2267[b][5] ) and Father's lack of effort to meet C.M.'s needs (K.S.A.2013 Supp. 38–2267[b][8] ).
Father also argues the court failed to make a finding that the conduct or conditions rendering him unfit (felony convictions, imprisonment, and lack of effort to meet C.M.'s needs) were unlikely to change in the foreseeable future. But at the hearing, after the court made findings related to both statutory factors, counsel for the State specifically asked the district court to make a finding related to the foreseeable future. The judge responded, “I think it goes without saying that given the fact he's going to be in prison for the next six years is a condition of his that's unlikely to change in the foreseeable future.” Father's incarceration, a product of his criminal activity, was the condition the district court found was unlikely to change in the foreseeable future. Therefore, contrary to Father's argument, the district court did, in fact, make the necessary finding.
Whether a parent's circumstances, conduct, or condition is likely to change in the foreseeable future is assessed from the viewpoint of the child, not the parent, because a child's perception of time differs from an adult's perception. In re M.B., 39 Kan.App.2d 31, 45, 176 P.3d 977 (2008). This court has found that imprisonment for as few as 7 additional months from the date of a hearing, in combination with other factors, was sufficient to show that a parent's condition would not change in the foreseeable future. 39 Kan.App.2d at 47–48. CM. was 22 months old at the time of the evidentiary hearing and had been in state custody since shortly after he was born. Father is not eligible for release from prison until at least January 14, 2020. By that time, CM. will be almost 8 years old. Based on Father's remaining term of imprisonment, we find clear and convincing evidence supports the district court's conclusion that his unfitness was unlikely to change in the foreseeable future.
Although Father concedes there was evidence presented to show that it was in C.M.'s best interests to terminate parental rights, he challenges the court's conclusion on this issue. This court has previously ruled that, in order to find that termination of parental rights is in the best interests of a child, the district court must consider the nature and strength of the relationship between a parent and child and the trauma that termination may cause to the child. It must weigh these considerations against a further delay in permanency for the child. In re K.R., 43 Kan.App.2d 891, 904, 233 P.3d 746 (2010). Father alleges the district court failed to do so. Father does not elaborate on this argument or cite to any facts in the record to support his allegation.
Dixon testified that the majority of the bond between a parent and child is formed in a child's early years. Dixon also testified that CM. has resided in one home for his entire life and to wait until he is almost 8 years old to start attempting to reintegrate him with Father would not be in C.M.'s best interests. Other than registering his general disagreement with the court's findings regarding C.M.'s best interests, Father does not challenge this testimony. Based on this evidence, the court found the benefit of establishing permanency outweighed any negative impact that termination of Father's rights would have on CM. in light of his age, his limited relationship with Father, and the lengthy amount of time he would have to wait before the reunification process would begin again. We find the district court did not abuse its discretion by finding that termination of Father's parental rights was in the best interests of CM.
Affirmed.