Opinion
No. 108,804.
2013-07-19
In the Interest of J.K.
Appeal from Shawnee District Court; Daniel L. Mitchell, Judge. John Paul D. Washburn, of Washburn Law Office, of Topeka, for appellant father. Kevin J. Cook, of Cook & Fisher, L.L.P., of Topeka, for appellee grandparents.
Appeal from Shawnee District Court; Daniel L. Mitchell, Judge.
John Paul D. Washburn, of Washburn Law Office, of Topeka, for appellant father. Kevin J. Cook, of Cook & Fisher, L.L.P., of Topeka, for appellee grandparents.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Father appeals the termination of his parental rights to his son, J.K. Parental rights may be terminated only in circumstances set out by statute and only when clear and convincing evidence supports termination. Father claims on appeal that the district court erred in finding that he was an unfit parent. Father also contends that the district court erred when it found that it was in J.K's best interests to terminate Father's parental rights.
But termination is authorized where a parent is unable to meet a child's needs because of the ongoing use of alcohol or drugs, K.S.A.2012 Supp. 38–2269(b)(3); where reasonable efforts to keep the family together have failed, K.S.A.2012 Supp. 38–2269(b)(7); and where the parent has shown a lack of effort to adjust his or her circumstances to meet the child's needs, K.S.A.2012 Supp. 38–2269(b)(8). Any one of these factors can be the basis for a district court's finding that a parent is unfit, K.S.A.2012 Supp. 38–2269(f), if the evidence also shows that the condition is unlikely to change in the foreseeable future. K.S.A.2012 Supp. 38–2269(a). Here, there is sufficient evidence to support the district court's finding of unfitness based on each of these factors.
Whether termination of Father's parental rights was in J.K.'s best interests presented a closer call; no evidence suggested that contact between J.K. and Father was harmful to J.K. J.K. was 5 years old when his mother died in 2011, and J.K. and his mother had lived with her parents since 2007. Those parents filed the motion seeking to terminate Father's parental rights, and the grandparents also seek to adopt J.K. As of the time of trial, Father had had very limited contact with J.K. throughout his life, and the district court concluded that the grandparents would be better caretakers for J.K. than Father—a finding Father doesn't dispute. On the facts of this case, the district court did not err when it concluded that termination of Father's parental rights was in J.K.'s best interests.
Factual and Procedural Background
J.K. was born November 28, 2005, and lived with Mother and Father, who were never married. In August 2007, Mother and J.K. moved out to live with J.K.'s maternal grandparents—referred to here as the Grandparents—the petitioners in this case. Mother and Father didn't have a court-ordered custody or child-support arrangement. In July 2011, Mother died in a car accident.
Six days later, the Grandparents petitioned to have J.K. declared a child in need of care. The next day, the Grandparents were awarded temporary custody of J.K. After an August 2011 court hearing, Father was ordered to take a urinalysis but instead left the courthouse. In September 2011, J.K. was adjudicated a child in need of care by default when Father failed to appear. Later in September 2011, Father spent 11 days in jail after being arrested for drug possession. After his release, Father scheduled three appointments in October 2011 with Tricia Wiebe, the court-services officer assigned to this case, but he failed to keep any of the appointments. In November 2011, the district court ordered that a reintegration plan be submitted within 30 days, and the next day Wiebe sent Father a letter about establishing a reintegration plan.
But Father returned to jail from November 30, 2011, to January 13, 2012, for violating his probation in his conviction for drug possession. Father didn't respond to Wiebe about a reintegration plan within 30 days, and in December 2011, Wiebe recommended to the court that reintegration wasn't a viable option. The same day, the Grandparents filed a motion to terminate Father's parental rights. The district court found that a reintegration plan with Father wasn't viable.
After his release from jail in January 2012, Father completed inpatient drug treatment for more than 3 weeks as a condition of his probation. After leaving treatment in February 2012, Father met with Wiebe in March 2012. Wiebe informed Father about her December 2011 recommendation against reintegration, and she gave Father a drug test, which he passed. At a later hearing, Father testified that he passed several drug tests in the month between leaving treatment and the termination hearing.
A hearing to terminate Father's parental rights was held March 22, 2012. Father testified that he had seen J.K. a few times a month, never overnight, until shortly before Mother's death. Father said he paid for activities and meals for J.K. when he had him, gave him Christmas gifts, and gave Mother some money, including $150 from casino winnings, a month before her death. Grandmother testified that she understood that Mother took J.K. to see Father once every few months. Father testified that he had seen J.K. twice since Mother's death—at the funeral and at the August 2011 hearing. Father admitted that he had had an ongoing drug addiction since before J.K. was born. Father testified that he lived with his mother, was unemployed, and hadn't had stable housing or employment for several years. Father admitted that he didn't know how J.K. was doing in school and hadn't inquired about him since the funeral. Wiebe testified that she never discussed Father with J.K. Wiebe testified that the Grandparents told her they would support some degree of contact between J.K. and Father, and she said that she had no issue with that.
On August 28, 2012, the district court ordered the termination of Father's parental rights. The district court found that Father was presumed unfit under K.S.A.2012 Supp. 38–2271(a)(13) for failing to assume the duties of a parent for 2 years. In addition, the district court found Father to be unfit under K.S.A.2012 Supp. 38–2269(b)(3), (7) and (8) because of his drug use, failure to complete a reintegration plan, and failure to change his conduct to meet the child's needs. The district court further found that the condition was unlikely to change in the foreseeable future and that it was in J.K.'s best interests for the court to terminate Father's parental rights and place J.K. permanently with the Grandparents.
Father has appealed to this court.
Analysis
The District Court Didn't Err By Terminating Father's Parental Rights.
When a child has been adjudicated a child in need of care, the court may terminate parental rights when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition that 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.2012 Supp. 38–2269(a). If the court finds that a parent is unfit, the court then must consider whether termination of parental rights is in the best interests of the child. K.S.A.2012 Supp. 38–2269(g)(1).
This court will uphold the termination of parental rights if, after reviewing all the evidence in the light most favorable to the prevailing party, it believes the district court's findings of fact to be highly probable—in other words, supported by clear and convincing evidence. We don't weigh conflicting evidence, determine the credibility of witnesses, or redetermine factual questions; those are jobs for the district court, which hears the evidence directly. In re Adoption of Baby Girl P., 291 Kan. 424, 430–31, 242 P.3d 1168 (2010). But we have unlimited review of whether the court has properly applied a statute to the facts. Becker v. Knoll, 291 Kan. 204, Syl. ¶ 6, 239 P.3d 830 (2010); In re K.P., 44 Kan.App.2d 316, 318, 235 P.3d 1255,rev. denied 291 Kan. 911 (2010). A. Evidence Supports Finding of Unfitness Under Factors in K.S .A.2012 Supp. 38–2269(b).
Father argues that the district court erred by finding that he was unfit under K.S.A.2012 Supp. 38–2269. In addition to challenging the evidentiary support of the statutory factors, Father challenges the district court's findings that his circumstances wouldn't change in the foreseeable future and that termination of his parental rights would be in J.K.'s best interests. The Grandparents contend that there was clear and convincing evidence to support each of the three factors cited by the district court under K.S.A.2012 Supp. 38–2269.
The legislature has listed nine factors a court may consider in making a determination of unfitness. K.S.A.2012 Supp. 38–2269(b). The existence of any one of these factors standing alone may establish grounds for termination of parental rights, though termination doesn't necessarily require it. K.S.A.2012 Supp. 38–2269(f). Here, the district court cited three of the factors as applying to its determination that Father is unfit:
“(3) the use of intoxicating liquors or 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;
....
“(7) failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family; [and]
“(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 [.]” K.S.A.2012 Supp. 38–2269(b)(3), (7), (8).
1. Evidence Supports the Finding that Father's Drug Use Rendered Him Unable to Care for J.K.'s Needs Under K.S.A.2012 Supp. 38–2269(b)(3).
The district court made the following findings of facts relevant to K.S.A.2012 Supp. 38–2269(b)(3), which were supported by evidence in the record, relating to Father's drug use:
“25) Father was ordered to provide a drug sample on August 2, 2011, following the temporary custody hearing and left the courthouse without taking the test.
“26) Ms. Wiebe testified that she was advised by Petitioners that drugs were an ongoing issue with Father.
....
“30) Since December 16, 2011, Ms. Wiebe testified that the next contact with Father was on February 23, 2012. Father called Ms. Wiebe's office. During the phone conversation, Father advised that he had just been discharged from an inpatient treatment program, advised [her] of his current address and phone number, and requested an office appointment. A meeting was scheduled for March 1, 2012.
“31) Father appeared at that meeting and advised that he was living with his mother and was in outpatient treatment at Valeo. Father acknowledged that he had an ongoing drug issue. Ms. Wiebe gave him a UA that day and the results were negative. During the March 1, 2012 meeting, Ms. Wiebe discussed her December 16 report and recommendation with Father.
“32) Ms. Wiebe testified that she spoke to Father's probation officer through community corrections on March 13, 2012. Ms. Wiebe advised that she learned during that conversation that Father was supposed to start treatment in November 2011, but had used a device to alter his UA, so he was incarcerated as a sanction and then began inpatient treatment after his release in January 2012.
....
“35) Father admitted he had an ongoing drug addiction. He stated that he has had a drug addiction all of [J.K.]'s life ‘and some’ and that he never sought treatment on his own. As a condition of his probation, Father stated he attended an inpatient treatment program 22–25 days, had completed level two outpatient, and was currently attending level one outpatient which consisted of one meeting per week for one hour.
....
“37) Initially Father sought a diversion in [a domestic violence] case, but it was revoked based on several violations of the conditions of the agreement and his bond. Father repeatedly violated conditions of his bond, including repeatedly failing to attend drug and alcohol evaluations, failing to keep in contact to appointments with the court services officer, and three admissions or positive drug tests of marijuana and methamphetamine and/or amphetamine use.
“38) In Jackson County Case No.2011–CR–000348, Father was convicted of felony possession of narcotics. In the same case, Father's probation was revoked for failure to report to his probation officer and for attempting to alter a UA. Father was sentenced to serve a 60–day sanction and to complete inpatient treatment.
“39) In addition, Father admitted that he was also incarcerated on a 3–day sanction for attempting to tamper with the UA.
“40) Father stated that he had been incarcerated three to four times since [J.K.]'s birth and had been incarcerated for a total amount of ‘roughly 90 days.’ “
Based on a review of the record, the district court's findings of fact related to Father's drug use are highly probable, meaning they are supported by clear and convincing evidence found in the record viewed in the light most favorable to the petitioners. See Baby Girl P., 291 Kan. at 430. Based on these findings, the district court concluded that Father “would be unable to care for [J.K.]”
Father argues that no correlation was shown between his drug use and his ability to parent J.K. The two cases Father cites in support of this proposition involved a drug arrest and a positive drug test, but neither involved incarceration or court-ordered inpatient treatment because of drug use. See In re L.C.W., 42 Kan.App.2d 293, 211 P.3d 829 (2009); In re A.M., No. 106,890, 2012 WL 2925660 (Kan.App.2012) (unpublished opinion).
Here, the record shows that Father was incarcerated in Jackson County from September 17–28, 2011, for drug possession, and again from November 30, 2011, to January 13, 2012, for violating probation in the same case. He then underwent drug treatment as an inpatient either from January 22, 2012, to February 22, 2012, or January 25, 2012, to February 20, 2012. Father admitted that he wasn't available to J.K. during that time. The hearing to terminate Father's parental rights was March 22, 2012. So for the 113 days immediately preceding the hearing—dating back to November 30, 2011—Father was unavailable to J.K. approximately 70 of those days. That supports the district court's conclusion that Father would be unable to care for J.K. based on his drug history. Therefore, the district court's finding that the use of narcotic drugs of such duration or nature as to render Father unable to care for J.K.'s ongoing physical, mental, or emotional needs under K.S.A.2012 Supp. 38–2269(b)(3) is supported by clear and convincing evidence.
2. Evidence Supports the Finding that Reasonable Efforts Made By Court Services Failed to Rehabilitate the Family Under K.S.A.2012 Supp. 38–2269(b)(7).
The district court made the following findings of fact relevant to K.S.A.2012 Supp. 38–2269(b)(7), which were supported by evidence in the record, relating to the failure of reasonable efforts made by court services to rehabilitate the family:
“16) Ms. Wiebe was assigned to monitor the case on August 4, 2011.
“17) Ms. Wiebe attempted contact with Father by sending a letter on September 26, 2011, requesting that he come in for an office appointment.
“18) Father contacted Ms. Wiebe as a result of the letter and an office appointment was scheduled for October 3, 2011.
“19) Father missed the appointment scheduled for October 3, but called Ms. Wiebe. He indicated he was not able to come for the appointment as he was stressed by his recent circumstances; he indicated to Ms. Wiebe he had just gotten out of jail in Jackson and Atchison Counties and had some other issues. During the conversation, Father reported to Ms. Wiebe that he was not aware of the pretrial on September 12, 2011. He further advised Ms. Wiebe that he was fine with placement with Petitioners, but that he wanted to be able to see [J.K.]
“20) Ms. Wiebe agreed to reschedule the meeting, and another appointment was scheduled for October 5, 2011
“21) Father missed the appointment on October 5, 2011. Father called Ms. Wiebe and stated that he did not have a ride. According to her notes, Father sounded distressed or distraught. She agreed to again reschedule the meeting. A third meeting was set for October 7, 2011.
“22) Father missed the October 7, 2011, appointment and did not contact Ms. Wiebe by phone.
“23) Ms. Wiebe prepared a predisposition report for the case. The predisposition report was prepared without assistance or direct information from Father due to his failure to meet with Court Services.
“24) According to Ms. Wiebe, Petitioners reported that Father had made no effort or attempt to see [J.K.] since Mother's death and there was a history of domestic violence between Mother and Father.
....
“28) Ms. Wiebe testified that she mailed Father a letter dated November 8, 2011, in an attempt to contact him about developing a reintegration plan. Father did not respond to the letter.
“29) On December 16, 2011, Ms. Wiebe submitted a report wherein she indicated that she had not had any contact with Father. She further stated that based on Father's lack of response, she did not believe reintegration to be a viable option. She recommended that the case proceed to termination of parental rights.
“30) Since December 16, 2011, Ms. Wiebe testified that the next contact with Father was on February 23, 2012. Father called Ms. Wiebe's office. During the phone conversation, Father advised that he had just been discharged from an inpatient treatment program, advised [her] of his current address and phone number, and requested an office appointment. A meeting was scheduled for March 1, 2012.
“31) Father appeared at that meeting and advised that he was living with his mother and was in outpatient treatment at Valeo. Father acknowledged that he had an ongoing drug issue. Ms. Wiebe gave him a UA that day and the results were negative. During the March 1, 2012 meeting, Ms. Wiebe discussed her December 16 report and recommendation with Father.
....
“49) At a meeting on March [6], 2012, Father admitted that Ms. Wiebe told him he could contact Petitioners directly to inquire about [J.K.] or visits. Father testified that he did not contact Petitioners because he ‘didn't feel it was in his best interest because of the trial.’ “
The district court found that Wiebe's efforts, as the court-services officer, were reasonable because of the many rescheduled appointments and opportunities for Father to respond. The district court concluded: “It is only reasonable to determine reintegration was not a viable option after numerous unsuccessful attempts to include Father in the reintegration plan.” The district court also noted that “any failure was directly caused by Father's inaction.”
Father disputes that reasonable efforts were made to rehabilitate the family. Father notes that Wiebe never submitted a formal reintegration plan despite a court order to do so in November and that she never provided Father with a reintegration plan. But developing a reintegration plan before terminating parental rights isn't mandatory if facts indicate reintegration isn't a viable alternative, especially when a parent shows little interest in such a plan. In re J.G., 12 Kan.App.2d 44, 51, 734 P.2d 1195,rev. denied 241 Kan. 838 (1987).
Wiebe testified that on October 3, 2011, she asked Father if he wanted to participate in a reintegration process, and she said he told her “he was fine with placement with the grandparents ... but wanted to be able to see [J.K.] when he wanted to see him.” On November 7, 2011, during a temporary-disposition hearing that Father failed to attend, the district court ordered a reintegration plan within 30 days. Wiebe sent Father a letter about establishing a reintegration plan the next day. Wiebe never heard anything from Father again until February 23, 2012, after he got out of inpatient drug treatment. By then, the 30 days had long passed and Wiebe had recommended that reintegration wasn't a viable option based on Father's lack of response. Wiebe testified that Father indicated that he understood that he missed the opportunity for reintegration but expressed a desire to be able to see J.K. and establish a relationship with him. So the record supports the district court's conclusion that Father's inaction directly caused a reintegration plan to fail. Therefore, the district court's finding that there was a failure to rehabilitate the family despite reasonable efforts of court services under K.S.A.2012 Supp. 38–2269(b)(7) is supported by clear and convincing evidence.
3. Evidence Supports the Finding That Father Lacked Effort to Adjust His Circumstances to Meet J.K.'s Needs Under K.S.A.2012 Supp. 38–2269(b)(8).
The district court made the following findings of facts relevant to K.S.A.2012 Supp. 38–2269(b)(8), which were supported by evidence in the record, relating to Father's lack of effort to adjust his circumstances, conduct, or conditions to meet J.K.'s needs:
“33) Father has not had stable housing for several years. Father testified that at the time of the trial he was living with his mother and had been doing so for about the last month. Prior to that time, Father stated that he lived at 2415 S.W. 2nd Street for a short period. Prior to that he stated he lived with his mother ‘periodically.’ The last stable residence Father lived at was in August 2007, with Mother and [J.K.]
“34) Father has not had stable employment for several years. He testified that he was not currently employed and that his last employment was in 2008. Since 2008, Father stated that he has been doing ‘side work and odd jobs,’ ‘basically to live.’ He stated that he has been trying to establish his own business for several years.
....
“52) Father admitted that he knows nothing about how [J.K.] is doing in school and testified that he does not know because ‘no one informed [me] and [I] didn't try to find out.’
“53) Father admitted he does not know anything about [J.K.]'s current friends or how [J.K.] is doing generally and admitted that he did nothing to find out about [J.K.] since July 2011.”
Based on these findings, the district court concluded that Father couldn't meet J.K.'s needs: “It is clear Father would not be able to meet the needs of [J.K.], as Father is barely able to meet his own needs.” The district court cited Father's lack of stable housing, lack of stable employment, and his ongoing drug problem.
Father argues that he was making progress at the time of the termination hearing and asserts that Wiebe agreed that he was changing his circumstances. But the extent of Wiebe's agreement was in the context of Father's communication with her in the month before the termination hearing: “Well, certainly by virtue of the fact that he's followed through with contacting me and keeping the office appointment, that's certainly better than what he did previously.”
Significantly, Father volunteered that his life “was a little unmanageable” as of March 6, 2012, which was 16 days before the hearing. He also admitted that he was still using methamphetamines after leaving jail in September 2011—after having been placed on probation for a conviction for drug possession for an offense that occurred after the child-in-need-of-care petition in this case had been filed. So the record supports the district court's conclusion that Father was barely able to meet his own needs at the time of the hearing based on his lack of employment and recent drug conviction. Successfully completing inpatient drug treatment with no positive drug tests does indicate some effort toward positive adjustment. But overall, considering the lack of effort to establish a reintegration plan or inquire about J.K.'s well-being, the district court's finding that there was a lack of effort on Father's part to adjust his circumstances, conduct, or conditions to meet J.K.'s needs under K.S.A.2012 Supp. 38–2269(b)(8) is supported by clear and convincing evidence. In sum, considering the three cited K.S.A.2012 Supp. 38–2269(b) factors together, there is clear and convincing evidence in the record to find that Father was unable to care properly for J.K. as required by K.S.A.2012 Supp. 38–2269(a). B. Evidence Supports the Finding That Father's Condition Is Unlikely to Change.
A finding of unfitness may be based on one or more of the factors found in K.S.A.2012 Supp. 38–2269(b)plus a finding that the condition of unfitness “is unlikely to change in the foreseeable future.” K.S.A.2012 Supp. 38–2269(a). The district court found that Father's conduct was unlikely to change in the foreseeable future because Father's conduct or conditions hadn't improved since Mother's death.
“In determining whether a parent's conduct or condition is likely to change in the foreseeable future, the foreseeable future is to be considered from the child's perspective, not the parents', 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). Father argues that he had made significant changes in his life during the 8 months this case was pending, but he doesn't specify what these changes were.
After Mother's unexpected death, Father had from July 2011 to March 2012 to get his life in order for the benefit of J.K. During that time, Father saw J.K. briefly twice—at Mother's funeral and in the hallway after an August 2011 court hearing in this case. After the funeral, Father admitted he never contacted the Grandparents to ask about J.K. or ask to see J.K.
Father was arrested for and convicted of drug possession in September 2011. Father missed J.K.'s birthday, not even sending a card, in November 2011 because he was in jail for violating his probation. Father failed to contact court services for more than 4 months between October 2011 and February 2012 and failed to respond to a letter seeking his participation in a reintegration plan. The only tangible change of significance in the record is that Father successfully completed court-ordered inpatient drug treatment and passed several drug tests in the month between leaving treatment and the termination hearing. He was seeking employment but was unemployed at the time of the hearing. So there is sufficient evidence in the record to support the district court's finding that Father's conditions hadn't improved since July 2011 and were unlikely to change in the foreseeable future, especially as viewed from a child's time perspective.
In sum, then, the district court had sufficient evidence to conclude that three factors sufficient to demonstrate unfitness were present, as well as sufficient evidence from which to conclude that Father's condition was unlikely to change in the foreseeable future. Therefore, there is clear and convincing evidence to support the district court's finding that Father was unfit to be a parent. C. The District Court Didn't Abuse Its Discretion in Determining That J.K.'s Best Interests Would Be Served by the Termination of Father's Parental Rights.
After a court finds a parent to be unfit, the court must consider whether termination of parental rights as requested in the motion is in the best interests of the child. K.S.A.2012 Supp. 38–2269(g)(1).
We first consider the legal criteria to be considered. “In making the determination, the court shall give primary consideration to the physical, mental and emotional health of the child. If the physical, mental or emotional needs of the child would best be served by termination of parental rights, the court shall so order.” K.S.A.2012 Supp. 38–2269(g)(1). To determine whether the best interests of the child would be served by the termination of parental rights, a court must find that under no reasonable circumstances can the welfare of the child be served by the continuing relationship of the parent and child. In re Brooks, 228 Kan. 541, 550, 618 P.2d 814 (1980). Similarly, a court must weigh the benefits of permanency for the child without the presence of his or her parent against the continued presence of the parent and the accompanying issues created for the child's life. In making such a determination, a court must consider the nature and strength of the relationships between the child and parent and the trauma that may be caused to the child by termination, weighing 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). A court should carefully consider any alternative remedy proposed by an interested party, and the drastic remedy of termination of parental rights shouldn't be utilized unless the court is satisfied there is no realistic alternative and so finds. Brooks, 228 Kan. at 551.
With those legal criteria in mind, we also recognize that the trial court, which hears the evidence directly, is in the best position to decide whether termination is in the best interests of the child. Accordingly, an appellate court can't overturn that decision without finding an abuse of discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). The standard of review for abuse of discretion is whether a reasonable person could have agreed with the district court. If so, then there is no abuse of discretion. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011).
We turn next to the district court's findings in this case. It concluded that Father wasn't in position to take over as J.K.'s caregiver and that the grandparents were in position to meet J.K.'s daily needs:
“Here, Father has never been a primary caretaker of [J.K.], and there is no indication he would be able to fulfill such a role. Father even stated he did not oppose custody going to Petitioners, but wanted the right to see [J.K.] as he chooses. This Court determines that [J.K.]'s physical, mental, and emotional well-being is better served by placement with permanent adoptive parents, than with Father. Thus, this Court finds it is in the child's best interests to terminate Father's parental rights pursuant to K.S.A. [2012 Supp.] 38–2269(g).”
Father argues that no evidence was presented that he was incapable of providing for J.K.'s ongoing physical, mental, and emotional health. And Father argues that he shouldn't be stripped of his legal status as a parent entirely because the Grandparents are in a better position to take care of J.K. after Mother's death.
Despite a finding that Father is unfit, whether termination of parental rights is in J.K.'s best interests is a closer call because there isn't much in the record, if anything, to indicate that J.K. would be better off without Father in his life. See Brooks, 228 Kan. at 550–51;In re K.R., 43 Kan.App.2d at 904. Most notably, Wiebe testified that she had no issue with Father maintaining a level of contact with J.K. She also testified that the Grandparents indicated to her that they would support some degree of contact between J.K. and Father “in respect of the fact that he is his father.” Grandfather testified that he didn't have a problem with an ongoing relationship between J.K. and Father. He also agreed that J.K. seemed to have had a bond with Father when J.K. was 3 or 4. Wiebe testified that she never asked J.K. about his father and that J.K. never mentioned his father to her. So rather than directly addressing why terminating Father's parental rights was in J.K.'s best interests, the district court's finding focused more on a determination that the Grandparents would be better caretakers of J.K. than Father, which Father doesn't dispute.
Here, Father didn't propose any alternative remedy, such as appointing the Grandparents as permanent custodians under K.S.A.2012 Supp. 38–2269(g)(3). Therefore, the court wasn't required to consider another option. See Brooks, 228 Kan. at 551. Given the choice between the permanency of placing J.K. with his Grandparents as permanent adoptive parents or placing J.K. with a father he didn't have much of a relationship with, it can't be said that the district court abused its discretion by finding that terminating Father's parental rights was in J.K's best interests. D. We Need Not Address the Court's Separate Finding of a Presumption of Unfitness.
The district court also found a presumption of unfitness under K.S.A.2012 Supp. 38–2271(a)(13)—that Father had failed to assume parental duties for 2 consecutive years before the filing of the petition. We need not address Father's challenge to this finding because the district court's findings of unfitness under K.S.A.2012 Supp. 38–2269(a) and (b), already discussed, provide sufficient support for its ruling.
Conclusion
We recognize that termination of parental rights is a serious matter, and that's especially so in a case like this one in which no one suggests that mere contact between the parent and child is harmful to the child. While the Grandparents have said that they don't seek to end contact between J.K. and Father, they would have the legal right to do so if Father's parental rights are terminated. On the other hand, in the absence of a permanent guardianship (which hasn't been sought), maintaining Father's status as J.K.'s legal parent could allow him to take over day-to-day care for J.K., something no one suggests would be positive for J.K. And all of this must be considered with the child's viewpoint—and perspective on time—in mind.
The district court heard the evidence from the parties, and its conclusion that Father was unable to meet J.K.'s needs because of the ongoing use of alcohol or drugs, that reasonable efforts to keep the family together had failed, and that Father had shown a lack of effort to adjust his circumstances to meet J.K.'s needs are supported by clear and convincing evidence. So too is the district court's conclusion that Father's conditions were unlikely to change in the foreseeable future, as viewed from the child's perspective. With these conclusions in mind, the district court determined that it was in J.K.'s best interests to terminate Father's parental rights. A reasonable person could agree with that conclusion, even with consideration of the legal criteria favoring continuing the parent-child relationship.
The district court's judgment is therefore affirmed.