Opinion
112,609.
05-08-2015
In the Interest of D.S.
Donald R. Snapp, of Newton, for appellant natural mother. Jason R. Lane, assistant county attorney, for appellee.
Donald R. Snapp, of Newton, for appellant natural mother.
Jason R. Lane, assistant county attorney, for appellee.
Before HILL, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mother appeals from the decision of the district court to terminate her parental rights. She alleges two points of error: First, there was insufficient evidence to support the district court's unfitness finding; and second, the district court abused its discretion in terminating her parental rights. Finding no error, we affirm.
Factual and Procedural History
Mother and Father are the natural parents of D.S. (born in 2009). On July 11, 2013, a child in need of care (CINC) petition was filed in Harvey County District Court alleging D.S. was a CINC, prompted in part on the fact that D.S. was found unsupervised in a salvage yard. On September 24, 2013, the court adjudicated D.S. a CINC and held that returning D.S. to the home would be contrary to his welfare pursuant to K.S.A.2014 Supp. 38–2251.
On May 8, 2014, the State filed a motion to terminate the parental rights of Mother and Father. On July 22, 2014, the first day of a 2–day termination hearing, Father voluntarily relinquished his parental rights.
Leonna Hosier, an addictions counselor, testified that she recommended outpatient treatment for Mother's drug addiction following a drug assessment in October 2013. Hosier testified that to her knowledge Mother did not attend outpatient treatment following her recommendation.
Christina Jarchow, a social worker with St. Francis Community Services (SFCS), testified she first had contact with the family after D.S. was taken into custody in July 2013. Jarchow explained that she set up a case plan for the family because D.S. was neglected, was without stable housing, was living in a salvage yard, had no food, and was being exposed to drug use. In her case plan, Mother was directed to (1) obtain and maintain employment, (2) maintain stable housing, (3) maintain a clean home, (4) complete a SACK assessment, (5) submit to random drug screens, (6) complete a mental health in-take and follow all recommendations, (7) complete a parenting class, and (8) complete a domestic violence class for victims.
Jarchow testified that Mother submitted to the random drug screens throughout 2013 and early 2014; she tested positive for methamphetamine in 7 of the 8 drug screens. With respect to housing, Jarchow indicated Mother had not acquired stable housing and was still living in the salvage yard. Mother did report to SFCS that she had obtained a rental house but did not give SFCS an address. Jarchow also testified that Mother had not submitted proof she had obtained steady employment and had not completed a domestic violence class. Jarchow was able to report that Mother had successfully completed a parenting class and met weekly with D.S.; Mother was very engaging with D.S. and they had very good visits.
When D.S. was initially found at the salvage yard and taken into protective custody, he was unsupervised, spoke little and had issues with speech, and was dirty and starving. Since being taken into State custody, Jarchow stated that D.S.' physical, emotional, and mental states had all improved, and it was her opinion that it was in D.S.' best interests to move forward with adoption and terminate Mother's parental rights.
Witnesses who testified on Mother's behalf included her boyfriend, who indicated he ran the salvage yard and shared the steady income derived from the yard with Mother, and Joshua Gill, a minister, who testified to the strong connection between Mother and D.S.
At the conclusion of the evidence, the district court ruled that clear and convincing evidence established Mother was unfit, that such unfitness was unlikely to change in the foreseeable future, and that it was in the best interests of D.S. for Mother's parental rights to be terminated.
Mother timely appeals.
Did Clear and Convincing Evidence Support Termination of Mother's Parental Rights?
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, K.S.A.2014 Supp. 38–2201 et seq ., lists a number of nonexclusive factors the district court must consider in determining a parent's unfitness. See K.S.A.2014 Supp. 38–2269(b) and (c). Any one of the factors “may, but does not necessarily, establish grounds” for terminating a parent's rights. K.S.A.2014 Supp. 38–2269(f). The district court is not limited only to the statutory factors in making a determination of unfitness. K.S.A.2014 Supp. 38–2269(b).
When reviewing a district court's findings on unfitness, our standard of review is clear: The district court's findings must be supported by clear and convincing evidence. K.S.A.2014 Supp. 38–2269(a). We determine whether such evidence could have convinced a rational factfinder such facts were highly probable, i.e., by clear and convincing evidence, when viewed in the light most favorable to the State. In re B.D.-Y., 286 Kan. 686, 705, 187 P .3d 594 (2008). In making this determination, we do “not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.” 286 Kan. at 705.
Here, the district court relied on the following five statutory factors in determining Mother was unfit to properly care for D.S.:
• K.S.A.2014 Supp. 38–2269(b)(1) —emotional illness, mental illness, mental deficiency, or physical disability of the parent;
• K.S.A.2014 Supp. 38–2269(b)(3) —the use of intoxicating liquors or narcotic or dangerous drugs;
• K.S.A.2014 Supp. 38–2269(b)(4) —physical, mental, or emotional abuse or neglect or sexual abuse of a child;
• K.S.A.2014 Supp. 38–2269(b)(7) —failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family; and
• K.S.A.2014 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.
The record shows Mother displayed an addiction to methamphetamine through the random drugs tests; D.S. was found starving, filthy, and developmentally delayed in the salvage yard; Mother did not take full advantage of the programs designed to assist her in reintegrating with D.S.; and Mother did not acquire suitable housing for D.S. Moreover, Mother largely ignored or did not provide sufficient proof of her completion of any of her case goals except for completion of a parenting class. As even a single statutory factor supported by clear and convincing evidence is sufficient for a finding of unfitness, see K.S.A.2014 Supp. 38–2269(f), we have no trouble concluding sufficient evidence supports the district court's unfitness findings, especially when viewing the evidence in the light most favorable to the State.
Once the district court finds present unfitness, 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). 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. 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).
Significantly, Mother makes no argument specifically aimed at whether her unfitness will change in the foreseeable future. Instead, her argument is limited to a broad attack on the district court's unfitness findings. Mother argues simply that she is not unfit.
However, the record shows Mother refused to seek help for her addiction to methamphetamine, testing positive for the substance in 7 out of 8 random drug tests. Moreover, her housing situation had not changed at the time of the termination hearing, and she had not provided documentation that she had acquired steady employment. Aside from the completion of a parenting class, Mother's case plan went completely unfulfilled. Mother's habitual behavior indicates her conduct will not change in the foreseeable future, thus supporting the district court's determination that her unfitness was unlikely to change for the foreseeable future.
Did the District Court Abuse Its Discretion in Finding Termination of Mother's Parental Rights Was in the Best Interests of the Child?
Finally, Mother argues the district court abused its discretion in terminating her parental rights.
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 the determination without finding an abuse of discretion. In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied October 7, 2010. An abuse of discretion occurs when no reasonable person would agree with the district court or when the court bases its decision on an error of fact or an error of law. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). “In determining whether the district court has made a factual error, we review any additional factual findings made in the best-interests determination to see that substantial evidence supports them (recognizing that the preponderance-of-the-evidence standard applies in the district court).” In re R.S., 50 Kan.App.2d 1105, 1116, 336 P.3d 903 (2014). In considering termination, “the court shall give primary consideration to the physical, mental and emotional health of the child.” K.S.A.2014 Supp. 38–2269(g)(1).
As has been previously discussed, D.S. was taken into State custody after being found in abhorrent conditions unsupervised in a salvage yard. Mother made little progress on her case plan and still resided at the salvage yard at the time of the termination hearing, meaning D.S. would have been returned to the same location from which the State had removed him. Based only on these circumstances and without considering Mother's use of methamphetamine, we have no trouble finding the district court did not abuse its discretion in finding termination of Mother's parental rights was in the best interests of D.S.
Affirmed.