Opinion
No. 108,460.
2013-01-8
In the Interest of M.F., DOB: XX/XX/2008, a Minor Child.
Appeal from Wyandotte District Court; Daniel Cahill, Judge. J. Shane Rockey, of Rockey & Stecklein, Cthd., of Kansas City, for appellant natural father. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Daniel Cahill, Judge.
J. Shane Rockey, of Rockey & Stecklein, Cthd., of Kansas City, for appellant natural father. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Prior to terminating the parental rights of a parent, the district court must find by clear and convincing evidence that the parent is unfit, the conduct or a condition which renders the parent unfit is unlikely to change in the foreseeable future, and the termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1). The natural father of M.F. (Father) appeals the district court's termination of his 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 Background
When M.F. was 3 years old, the State filed a petition in which it sought to have M.F. declared to be a child in need of care (CINC). The petition was filed after M.F.'s mother (Mother) was found to be using multiple drugs while pregnant with another child. There were also allegations that M.F. was being neglected. The district court entered a temporary order of custody and M.F. was placed in the custody of the Department of Social and Rehabilitation Services (SRS).
At the time the CINC petition was filed, Father was incarcerated after being convicted of forgery and selling narcotics. He had already been in jail almost 2 years, with a release date 16 months away. Prior to his arrest, Father and Mother were living in the same apartment and Father was supporting them by selling drugs from and around their home. Both Father and Mother were using drugs and Father knew that Mother had a problem with drug use. Drugs were common in the apartment complex. Father admitted that at the time of his arrest his main objective was not on being a better parent.
In January 2012, the State filed a motion seeking the termination of parental rights. The petition contained several allegations including neglect and failure to maintain contact. It also specifically noted that Father had been convicted of a felony and was serving a term of incarceration. Following an evidentiary hearing, the district court found by clear and convincing evidence that Father was unfit because of his felony conviction and because he failed to carry out a reasonable reintegration plan approved by the court. The district court also noted in its ruling from the bench that Father had made no attempts to contact M.F., either by correspondence or holiday cards. It noted that Father was aware of M .F.'s existence and his duty to support M.F., yet continued to sell drugs knowing the likelihood that he would be arrested and jailed and would not be able to parent M.F. The district court concluded that the unfitness was unlikely to change in the foreseeable future and that it was in M.F.'s best interests for parental rights to be terminated. Father appeals that decision to this court.
Analysis
On appeal, Father argues that there was not clear and convincing evidence to support the termination of his parental rights. Although Father does not dispute the fact that he was serving a term of imprisonment at the time of the termination hearing, he suggests that there was no evidence of failure to complete a reasonable reintegration plan, since there was never any reintegration orders entered for him in this case. Father claims that he will be released from custody in late 2012 or early 2013, and he suggests that there was insufficient evidence that his unfitness was unlikely to change in the foreseeable future. Rather, he contends that the district court should have given him time to reintegrate after his release.
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, the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future, and the termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1).
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, [the appellate court] is 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.
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 one of the listed factors may establish grounds for termination. K.S.A.2011 Supp. 38–2269(f).
As to Father's unfitness, in its journal entry the district court specifically relied on two statutory factors: failure to carry out a reasonable reintegration plan (K.S.A.2011 Supp. 38–2269[c][3] ) and Father's incarceration (K.S.A.2011 Supp. 38–2269[b][5] ). From the bench, the district court also implicated two other statutory factors: failure to maintain regular contact or communication with the child or the custodian of the child (K.S.A.2011 Supp. 38–2269[c][2] ) and lack of effort on the part of Father to adjust his conduct to meet the needs of the child (K.S.A.2011 Supp. 38–2269[b][8] ). As we are required to do, we will examine the evidence presented to support these factors in the light most favorable to the State.
First, it does not appear from the record on appeal that there was clear and convincing evidence that Father “failed to carry out a reasonable plan approved by the court directed toward the integration of the child into the parental home.” Quite simply, Father was never given a reasonable plan for reintegration, which means that he could not have failed to complete it. However, there is clear and convincing evidence to support the other statutory factors upon which the court relied.
At the time of the court's termination order, Father had been incarcerated for almost 2 1/2 years, with 9 more months before his scheduled release date. By the time of Father's release, M.F. will have been in SRS custody for over 16 months, with no contact from his Father for 3 of his 4 years of life. “Father's incarceration alone can be sufficient evidence to support a conclusion of unfitness.” In re M.B., 39 Kan.App.2d 31, 46–47, 176 P.3d 977 (2008). Although we recognize that an incarcerated parent cannot provide the customary parental care and guidance ordinarily required, the court must consider the extent to which the imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her child. See In re Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145 (1987); In re S.D., 41 Kan.App.2d 780, 790, 204 P.3d 1182 (2009). In this case there is no evidence that Father made any attempts to contact his child. He never sent any cards, gifts, or correspondence to M.F. Although he wrote several letters to the case managers inquiring about M.F. after SRS had already taken M.F. into protective custody, there was no evidence presented that he made any effort to reach out and contact M.F. He knew that Mother continued to have a serious drug problem and that she was living in the same dangerous apartment complex from which he was selling drugs, yet he testified he had no contact with Mother either, who he left to parent his child, until the day before the termination hearing.
Moreover, as the district court pointed out in its ruling from the bench, Father knew the risks he was taking when he sold drugs from the family home. He maintained a home in a highly dangerous area, selling drugs, and subjecting his child to the inherent dangers of such a lifestyle. He knew that if arrested, convicted, and imprisoned, he would be deprived of a meaningful relationship with his child, yet he voluntarily continued that lifestyle and behavior. We find that under the facts of this case, Father's continued incarceration, his failure to maintain contact with his child, and his failure to adjust his conduct to meet the needs of his child by voluntarily participating in a dangerous drug trade from the family home supported the district court's finding of unfitness.
The district court further found that Father's unfitness was unlikely to change in the foreseeable future. This finding was also supported by the evidence.
Father told the case manager that he planned to take custody of M .F. when he was released from prison. However, Father had no information about a work release program or his housing upon release. He indicated that he was going to “try to look for a job” when he was released. Father admitted in correspondence with the case manager that, due to the nature of his incarceration, he “did not believe he was adequately equipped” to care for M.F. Further, Father was “uncertain as to how much involvement he could have with him” due to his confinement. Without a plan in place, it is hard to fathom that Father would be ready to assume his parental responsibilities upon his release, at least 9 months after the termination hearing. This court has found that incarceration for as few as 7 additional months from the date of the hearing, along with other factors, was sufficient to establish that the parent's condition would not change in the foreseeable future. In re M.B., 39 Kan.App.2d at 47–48. The foreseeable future should be viewed from the child's perspective, not the parents. In re C.C., 29 Kan.App.2d 950, 954, 34 P.3d 462 (2001).
Finally, when ruling from the bench, the district court noted that Father has been in custody since M.F. was just over 1 year of age, over two-thirds of M.F.'s life. It was the district court's opinion that it was “unfair and unthinkable to ask the child to wait longer.” The district court appropriately considered the delay in child time, rather than adult time, and found that it was in M.F.'s best interest that Father's parental rights be terminated. See In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002).
After a complete review of the facts, and the district court's well-reasoned and factually supported order, we find that termination of Father's parental rights was supported by clear and convincing evidence. Accordingly, we affirm the district court's termination of Father's parental rights.
Affirmed.