Opinion
No. 107,470.
2012-07-13
In the Interest of J.A.C.-R., a Minor Child.
Appeal from Ford District Court; Daniel L. Love, Judge. Sarah Doll Heeke, of Doll Law Firm LLC, of Dodge City, for appellant natural mother. Jacob Fishman, assistant county attorney, and Terry J. Malone, county attorney, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Sarah Doll Heeke, of Doll Law Firm LLC, of Dodge City, for appellant natural mother. Jacob Fishman, assistant county attorney, and Terry J. Malone, county attorney, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Prior to terminating a mother's parental rights, the district court must find by clear and convincing evidence that the parent is unfit, that the conduct or a condition which renders the parent unfit is unlikely to change in the foreseeable future, and that termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1). The natural mother of J.A.C .-R. (Mother) appeals the termination of her parental rights. We are asked to determine whether the district court's decision is supported by the evidence. Finding that it is, we affirm.
Factual and Procedural History
In April 2010, Mother was arrested for aggravated child endangerment when she took her 15–month–old child, J.A.C.-R, with her to purchase drugs from what turned out to be an undercover police officer. She also drove to the location on a suspended driver's license. J.A.C.-R was taken into protective custody, and the State subsequently filed a petition in which it claimed that J.A .C.-R. was a child in need of care (CINC). Mother entered a no contest statement to the petition. After finding that J.A.C.-R. was a CINC, the district court entered reintegration orders for Mother. These orders included complying with the conditions of bond, completing a drug and alcohol evaluation and following the recommendations, and attending narcotics anonymous (NA) meetings at least twice per week.
In May 2011, the State filed a motion in which it sought the termination of Mother's parental rights. It listed six factors under K.S.A.2011 Supp. 38–2269 in support of its position. The Stale noted that Mother was incarcerated for a felony conviction and would remain that way until October 2011. Because of her incarceration she had not maintained regular visitation. The Stale also alleged that Mother had a drug usage relapse in August 2010 when she was arrested for huffing paint. Moreover, Mother failed to comply with the terms of her probation, and she failed to fully avail herself of drug and alcohol treatment. Finally, the State alleged that Mother failed to maintain housing with working utilities, maintain income, and contribute financially to J.A.C.-R's care. See K.S.A.2011 Supp. 38–2269(b)(5). (7), and (8); K.S.A.2011 Supp. 38–2269(c)(2), (3), and (4).
The district court held a hearing in order to consider testimony from witnesses and arguments from counsel. After considering that evidence, the district court found by clear and convincing evidence that Mother was unfit and that her unfitness was unlikely to change in the foreseeable future. Although the district court did not provide any supporting facts in its journal entry or specifically cite to any relevant portion of K.S.A.2011 Supp. 38–2269, the district court did orally address the existence of all of the six factors listed by the State. The district court also specifically found that Mother was not capable of, nor had she carried out the plan to reintegrate. See K.S.A.2011 Supp. 38–2269(c)(3). After concluding that it would be in J.A.C.-R.'s best interests, Mother's parental rights were terminated. Mother appeals that finding to this court.
Analysis
Failure to list statutory factors relied upon in journal entry
On appeal, Mother first argues that the district court erred when it found that she was unfit. Mother notes that it is very difficult to know under which statutory subsection she was found to be unfit, since the district court did not reference the statute in any way either when making oral pronouncements from the bench or in the written journal entry.
The district court is required to make three findings before terminating parental rights. The court must find by clear and convincing evidence that the parent is unfit, that the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future, and that termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1). When determining unfitness, K.S.A.2011 Supp. 38–2269(b) and (c) provides a nonexclusive list of factors the district court may consider, and subsection (f) provides that the existence of any one of the factors alone may establish grounds for termination.
This court has consistently held that the best practice dictates that the district court should expressly reflect that all statutory findings were made and that the proper standard of proof was employed when making the findings. See In re B.E.Y., 40 Kan.App.2d 842, 844, 196 P.3d 439 (2008).
In the current case, the district court did specify application of the appropriate standard of proof, find that Mother was unfit, and find that termination of parental rights was in J.A.C.-R's best interests. However, the district court did not make any mention in the journal entry which of the K.S.A.2011 Supp. 38–2269 factors was used to declare Mother unfit.
Although, in a civil action, a district court's journal entry of judgment controls over a prior oral pronouncement from the bench, for the first time on appeal Mother contends the district court's journal entry failed to set forth adequate findings of fact to support its legal conclusions. See Steed v. McPherson Area Solid Waste Utility, 43 Kan.App.2d 75, 87, 221 P.3d 1157 (2010). However, the journal entry is signed by Mother's counsel. Mother did not object to the journal entry; nor did she file a posttrial motion seeking additional findings.
The general rule is that a litigant must object to inadequate findings of fact or explanations of a decision to preserve an issue for appeal. Without such an objection, we generally presume that the district court found all of the facts needed to support its judgment. Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). However, the court may still remand when the lack of factual findings prevents meaningful appellate review. 282 Kan. at 356. And when our review of the record does not support a presumption that the district court found all of the facts needed to support its judgment, we may remand the case for further consideration even though none of the parties objected in the district court or even on appeal. In re Estate of Cline, 258 Kan. 196, 206, 898 P.2d 643 (1995).
Here, the district court made specific findings that the State carried its burden of proof by clear and convincing evidence of the various statutory factors it alleged. In addition, the district court considered whether it was in J.A.C.-R's best interests to maintain a relationship with Mother. Although explicit factual findings would be the better practice, based on the record in this case, the court can engage in meaningful appellate review of the evidence and the district court's legal conclusions, so we elect to do so. Sufficiency of the evidence in support of termination of parental rights
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). Clear and convincing evidence is “an intermediate standard of proof between preponderance of the evidence and beyond a reasonable doubt.” 286 Kan. at 691. “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.
With our standard of review in mind, we now turn to Mother's claim that there was insufficient evidence to support the district court's decision.
In making a determination of unfitness, K.S.A.2011 Supp. 38–2269(b) and (c) provide factors for the court to consider. Although the court is not limited to the factors listed in the statute, the existence of any of one of the listed factors may establish grounds for termination. K.S.A.2011 Supp. 38–2269(f).
In its oral pronouncement from the bench after a full evidentiary hearing, the district court went through the allegations in the State's petition item by item. The district court noted that “it's clear” that Mother had been convicted of a felony. The district court noted that she had been in prison and was in prison at the time of the hearing. Mother does not dispute this fact. Conviction of a felony and imprisonment is a listed factor supporting a finding of unfitness under K.S.A.2011 Supp. 38–2269(b)(5). Mother was convicted of possession of cocaine, a felony, and possession of marijuana and child endangerment, both misdemeanors, all arising out of the incident with undercover officers on April 21, 2010. which resulted in the Kansas Department of Social and Rehabilitation Services taking temporary custody of J.A.C.-R.
The district court noted that although Mother had completed required alcohol and drug treatment, she relapsed immediately after being released from treatment and was arrested for huffing paint. As a result, she never made it to the aftercare program she was required to attend. She also drank alcohol. This was supported at the hearing by Mother's own testimony, the testimony of Aimee Fields, a social worker at Saint Francis Community Services, and Nita Walter, Mother's court services officer. Mother's failure to stay alcohol and drug free and report to treatment programs as ordered were used in the State's petition as evidence of the failure of reasonable efforts made by the appropriate agency to rehabilitate Mother, a listed factor supporting a finding of unfitness under K.S.A.2011 Supp. 38–2269(b)(7).
Evidence was also presented that although Mother was given probation for her offenses, Mother violated her probation by failing to complete all of her required drug treatment, consuming alcohol, having contact with documented gang members, leaving her county of residence to go to the Ford County jail with J.A.C.-R. to visit a known gang member, driving to the jail on a suspended driver's license, and going to a bar. The district court also noted that Mother's behavior clearly indicated “a lack of effort or an inability because of these addictions for this parent to adjust her circumstances, her conduct, [and] her conditions, to meet the needs of this child.” This too is a listed factor supporting a finding of unfitness under K.S.A.2011 Supp. 38–2269(b)(8).
The district court noted that because of her incarceration Mother has been unable to maintain housing with working utilities, and she has been unable to work as required by her reintegration plan. Likewise, Mother had not followed the conditions of her probation, nor obtained her G.E.D. The district court noted she was sporadic in attending NA meetings. Again, all of these were part of her reintegration plan and all were supported by testimony at the hearing. The district court specifically found that Mother “is not capable of, nor has she carried out, the plan to reintegrate.” Failure to carry out a reasonable plan approved by the court directed toward integration of the child into the parental home is a listed factor supporting a finding of unfitness under K.S.A.2011 Supp. 38–2269(c)(3).
The district court concluded by finding that the allegations in the State's petition were supported by clear and convincing evidence and were, in fact, true. The district court found that Mother's unfitness was unlikely to change in the foreseeable future.
Given all of the evidence that the district court heard at the termination hearing, we find that there was clear and convincing evidence to support the district court's termination of Mother's parental rights. Accordingly, we affirm.