Opinion
No. 108,300.
2013-02-1
In the Interest of E.G.
Appeal from Barton District Court; Ron Svaty, Judge. Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant natural father. Garett C. Relph, assistant county attorney, and Douglas A. Matthews, county attorney, for appellee.
Appeal from Barton District Court; Ron Svaty, Judge.
Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant natural father. Garett C. Relph, assistant county attorney, and Douglas A. Matthews, county attorney, for appellee.
Before MALONE, C.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
R.G. (Father), the natural father of E.G., appeals the district court's decision to terminate his parental rights. Finding the district court's decision is supported by clear and convincing evidence in the record, we affirm.
Factual and Procedural Background
In January 2010, the State filed a petition seeking to have E.G. declared a child in need of care. The petition was filed after child protection workers at the Kansas Department of Social and Rehabilitation Services (SRS) received a report that E.G. had several bruises and scratches. At that time, Father did not live with E.G., who lived with her mother and another man. The district court entered an order of temporary custody, and E.G. was removed from her mother's home. Both Father and E.G.'s mother agreed that the court could adjudicate E.G. a child in need of care; the court did so, placing E.G. in temporary custody with SRS.
Two years later, in January 2012, the State filed a detailed motion to terminate the parental rights of both parents; the State filed an amended motion in February 2012. E.G.'s mother voluntarily agreed to give up her parental rights, and the district court entered an order terminating her rights. The district court then held a hearing on the motion to terminate Father's parental rights.
At that hearing, held May 16, 2012, the State offered its detailed, 33–page motion for termination as its evidence. The State's attorney represented to the court that witnesses were present to testify to all but two paragraphs of the factual allegations made in the motion. Father's attorney asked that those paragraphs be stricken, and the State agreed. The court then admitted the motion into evidence, and Father was allowed to call any of the witnesses he chose for cross-examination. Father's attorney cross-examined three of the State's witnesses. In addition, Father testified personally. E.G. was 5 years old at the time of the hearing; she is now age 6.
After hearing testimony from these witnesses and arguments from counsel, the district court found Father unfit. The court specifically concluded:
• Father “is unfit by reason of past conduct and condition which renders him unable to care properly for the child, and this conduct or condition is unlikely to change in the foreseeable future .”
• “[H]e has used intoxicating liquors or narcotic drugs. He's not clear which one. But he says for ten years he's tried to change his life, but for ten years [he] drinks too much. And there's no indication that that's going to change, because he hasn't completed his treatment at all....”
• “[H]e has been convicted of a felony and he is in prison. He says he is going to get out in seven months, but nobody knows that for sure.”
• SRS employees say he had only two visits with his daughter during the more than 2 years the case was pending, while Father claims he had three or four visits. In either case, Father “should have had a lot more than that if [he] wanted [his] child back.”
• “[T]here has been a lack of effort on his part to adjust to the child's circumstances to meet the needs of the child.”
• It was in the best interests of the child to terminate Father's parental rights, and the child's physical, mental, and emotional needs would be best served by termination.
Father has appealed to this court.
Analysis
When this court reviews a district court's termination of parental rights, we consider “whether, after review of all the evidence, viewed in the light most favorable to the State, [we are] 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 B.D.-Y., the court explained that “clear and convincing evidence” requires the factfinder to believe “that the truth of the facts asserted is highly probable.” 286 Kan. at 697.
The district court is required to make three findings before terminating parental rights. The court must find by clear and convincing evidence (1) that the parent is unfit, (2) that the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future, and (3) that termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1). K.S.A.2011 Supp. 38–2269(b) and (c) provide a nonexclusive list of factors the court may consider in determining unfitness and whether to terminate parental rights. The existence of any one of the statutory factors “standing alone may, but does not necessarily, establish grounds for termination of parental rights.” K.S.A.2011 Supp. 38–2269(f).
In his appellate brief, Father concedes that it was “probably proper[ ]” to find him unfit based on drug and alcohol issues. But he contends that the district court was wrong to conclude that his unfitness was unlikely to change in the foreseeable future. Father argues that he has been clean and sober since he was taken into custody in December 2010, and he says that he “will have the opportunity to continue to show his ability to be a fit parent in the very foreseeable future once he is released from prison.” Father does not specifically address E.G.'s best interests, but he presumably contends that it is not in her best interests to terminate his parental rights since he is likely to change his behavior for the better in the near future.
In sum, Father's challenge is focused on the second of the three findings the district court must make to terminate his parental rights—whether his conduct was unlikely to change in the foreseeable future. Even so, we will review whether there was clear and convincing evidence to support each of the required findings.
1. Unfitness
We will review the district court's finding that Father was unfit to properly care for his child under the separate statutory subsections that correlate with the district court's factual findings. K.S.A.2011 Supp. 38–2269(f) provides that any one of the several specified factors may be sufficient to find a parent unfit. While the district court did not state the specific statutory subsections it relied upon, several subsections are directly supported by the district court's factual findings and the evidence presented:
• K.S.A.2011 Supp. 38–2269(b)(3) provides that the court may find a parent unfit when the use of intoxicating liquors, narcotics, or drugs is of such duration or nature that the parent is unable to care for the ongoing physical, mental, or emotional needs of the child. Father's own testimony was that he “sometimes drinks too much alcohol and makes poor decisions”—his rationalization for “at least a dozen” misdemeanor convictions from 1998 to 2010 that included a “couple” of domestic battery convictions, as well as the felony conviction for which he was in prison at the time of the hearing. Father's abuse of alcohol or drugs for an extended period of time left him unable to care for E.G.
• K.S.A.2011 Supp. 38–2269(b)(5) provides that “conviction of a felony and imprisonment” is grounds for a finding of unfitness. Father admits that he was convicted of felony aggravated battery. As of the May 2012 hearing, Father testified that his earliest possible release date was January 2013.
• K.S.A.2011 Supp. 38–2269(b)(8) provides that “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” is grounds for a finding of unfitness. Father admitted that from January 2010, when the case began, until the May 2012 hearing, he only had housing potentially suitable for a child for less than 2 months; he had at most four visits with E.G.; and he committed new crimes that sent him to prison. Father did not do what he needed to do to meet E.G.'s needs.
• K.S.A.2011 Supp. 38–2269(b)(9) provides that a finding of unfitness may be made when (1) the child has been in an extended out-of-home placement “as a result of actions or inactions attributable to the parent” and (2) one or more of several factors listed in K.S.A.2011 Supp. 38–2269(c) applies. Those factors include the “failure to maintain regular visitation” with the child (K.S.A.2011 Supp. 38–2269[c][2] ) and the “failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home” (K.S.A.2011 Supp. 38–2269[c][3] ). E.G. had been in an out-of-home placement since the case began in January 2010. Having four visits in more than 2 years is not “regular visitation,” and the State's evidence showed that Father had failed to take some significant steps called for in a case plan adopted early in the proceedings to give Father a chance to retain his parental rights.
The State's evidence on these points was straightforward, and Father did not seriously contest most of it. On appeal, he makes no specific argument that clear and convincing evidence failed to support the finding of unfitness. We conclude that the district court's unfitness finding was supported by clear and convincing evidence.
2. Conduct or Condition Unlikely to Change in the Foreseeable Future
We turn next to the primary issue on appeal—whether the district court's conclusion that Father's conduct or condition was unlikely to change in the foreseeable future was supported by clear and convincing evidence. In evaluating this, 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).
At the time of the hearing, Father had been incarcerated for more than 5 months, and he had to serve at least 7 more months of his prison sentence. That evidence alone strongly supported the district court's conclusion. See In re M.B., 39 Kan.App.2d 31, 47–48, 176 P.3d 977 (2008) (finding that father's incarceration during child in need of care proceedings with 7 months left to serve supported trial court's conclusion that father's condition was unlikely to change in the foreseeable future); In re D. T., 30 Kan.App.2d at 1175 (same; father had 10 months left on sentence at time of termination hearing).
In addition, several other aspects of the evidence supported the district court's conclusion. Father admitted he had a problem with alcohol that had caused him to commit at least a dozen misdemeanor offenses, including domestic battery, between 1998 and 2010. Before that, he had been convicted of a felony in 1998. The district court found that Father had not completed any treatment program that might have sent him in a different direction.
Perhaps most important, Father had failed to take some significant steps called for in the case plan on file with the court:
• He failed to provide verification that he had completed any drug or alcohol treatment program, even though he admitted to SRS staff that he had drug issues and testified that he had problems with alcohol. The case plan called for him to complete a drug and alcohol evaluation and follow any recommendations.
• He did not provide verification that he had enrolled for or completed any parenting classes, while the case plan called for him to attend group parenting sessions.
In addition, SRS personnel asked Father to obtain either a parenting evaluation or a psychological evaluation, but he did not do so. Father's failure to take these important steps during the pendency of the case supports the district court's conclusion that he was unable to change his conduct so that he could care for E.G.
Other than Father's self-serving testimony and his claim that he had not gotten into any trouble since he was arrested in December 2010, no evidence suggested that he would change his ways. And even his own testimony undercuts his argument. He testified that he “did [his] best to take a break” from criminal activity, but then admitted that “it doesn't seem like it when you look at it on paper .” He explained, “I actually try my best not to get [into] trouble, but unfortunately [I] sometimes drink[ ] too much alcohol and make [ ] poor decisions.”
Given Father's past record, his history of substance abuse, his failure to more aggressively pursue the actions he needed to take to reintegrate with E.G., and his felony arrest and incarceration while the case was pending, clear and convincing evidence supported the district court's conclusion that his conduct or condition was unlikely to change in the foreseeable future, as that time is judged from the child's perspective.
3. Best Interests of the Child
After a finding of unfitness that is unlikely to change in the foreseeable future, the district court still must consider whether termination of parental rights “is in the best interests of the child.” K.S.A.2011 Supp. 38–2269(g)(1). In making that determination, the court is to give “primary consideration to the physical, mental and emotional health of the child.” K.S.A.2011 Supp. 38–2269(g)(1).
Father's appellate brief does not specifically argue that the district court erred in finding that the best interests of the child supported terminating Father's parental rights. Accordingly, we could deem that finding admitted for the purposes of the appeal. See State v. Raskie, 293 Kan. 906, Syl. ¶ 5, 269 P.3d 1268 (2012) (holding that failure to adequately brief an issue constitutes waiver). Given the importance of the termination of parental rights, however, we will address it briefly.
The district court's findings support its conclusion that the termination of Father's parental rights is in E.G.'s best interests because it will allow her to move on to a permanent placement. At the time of the district court hearing, this 5–year–old girl had already been living in an out-of-home placement for more than 2 years, and Father was set to remain in prison for at least another 7 months. Although Father's interest in and love for E.G. may well be genuine, his actions had left him unable to provide the care his daughter needs. Father took only limited advantage of the ability to visit E.G. during the time frame from the start of these proceedings in January 2010 and his arrest in December 2010. Nor did he follow through on several of the tasks he was to complete as part of the court-approved plan for reintegrating him into his daughter's life. The district court's judgment call—that E.G.'s best interests would be served by terminating Father's parental rights—is supported by clear and convincing evidence.
In sum, all three of the required findings are supported by clear and convincing evidence.
Affirmed.