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In re Z.Z.

Court of Appeals of Kansas.
Feb 8, 2013
293 P.3d 816 (Kan. Ct. App. 2013)

Opinion

No. 108,606.

2013-02-8

In the Interest of Z.Z., A child in need of care.

Appeal from Saline District Court; Jared B. Johnson, Judge. John Black, of Salina, for appellant natural mother. Norman L. Davidson, Jr., assistant county attorney, and Ellen Mitchell, county attorney, for appellee.


Appeal from Saline District Court; Jared B. Johnson, Judge.
John Black, of Salina, for appellant natural mother. Norman L. Davidson, Jr., assistant county attorney, and Ellen Mitchell, county attorney, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, JJ.

MEMORANDUM OPINION


PER CURIAM.

This appeal involves the termination of C.P.'s parental rights to her child. On appeal, C.P., the natural mother of Z.Z., challenges the trial court's determinations that she had abandoned Z.Z. and that sufficient evidence existed that C.P. was an unfit parent, thus justifying the termination of her parental rights to Z.Z. Finding no error, we affirm.

In February 2012, the State petitioned the court to have Z.Z. declared to be a child in need of care (CINC). The State filed the petition after it was alleged that Mother had left Z.Z., born in October 2011, with a friend. Mother told the friend that she would pick Z.Z. up in 5 days. When Mother returned for Z.Z., the friend was concerned because Mother appeared to be under the influence of drugs. The friend took Z.Z. to the police, and he was placed in protective custody. A further investigation revealed that Mother was an intravenous user of methamphetamine.

The trial court entered a temporary order of custody in February 2012, and Z.Z. was placed in the custody of Social and Rehabilitation Services (now Department for Children and Families [DCF] ). Mother entered a no contest statement to the allegations contained in the CINC petition. Mother was ordered to submit two urinalyses (UAs) per week, and she was put on notice that she would not be allowed to visit Z.Z. until she had three clean UAs.

In June 2012, the State moved to terminate the mother's parental rights. In the motion, the State alleged that Mother's UAs continued to be unacceptable. Mother was arrested in early June 2012 for possession of methamphetamine. It was also alleged that Mother failed to visit Z.Z., to the point that the State believed Mother had “abandoned” him as a “ward of the State.”

The trial court held an evidentiary hearing to hear testimony from witnesses and arguments from counsel. After reviewing that evidence, the trial court determined by clear and convincing evidence that Mother was unfit and that her unfitness was unlikely to change in the foreseeable future. The trial court relied on the statutory indicia of unfitness found at K.S.A.2011 Supp. 38–2269(b)(1), (b)(3), (b)(7), (b)(8), (c)(2), (c)(3), (g)(1), and also on K.S.A.2011 Supp. 38–2271(a)(8), and (a)(9). After determining that it was in Z.Z.'s best interests, Mother's parental rights were terminated. Did the Trial Court Err When It Determined that Mother “Abandoned” Z.Z.?

Mother concedes that during most of the pendency of this case she was not a fit parent for Z.Z., and she acknowledges that she made “little or no effort” towards reintegration. But she disputes the idea that there was sufficient evidence to find abandonment, and she questions whether the State ever charged abandonment in the motion to terminate parental rights.

The law surrounding abandonment of a child is largely driven by the statutory language found at K.S.A.2011 Supp. 38–2202 and 38–2271. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).

In addressing Mother's complaints in reverse order, we note that the State did allege in paragraph six of the motion to terminate parental rights that the continued use of illegal drugs and the failure to comply with the reintegration plan amounted to abandonment under K.S.A.2011 Supp. 38–2271(a)(8) and (a)(9). The trial court cited the same statute when terminating Mother's parental rights. Mother's complaint that abandonment was never charged is not supported by the plain language of the termination motion.

In addressing Mother's other point of error, we observe that K.S.A.2011 Supp. 38–2202(a) defines “abandonment” as “to forsake, desert or, without making appropriate provision for substitute care, cease providing care for the child.” But K.S.A.2011 Supp. 38–2271(a)(8) references a parent abandoning a child “after having knowledge of the child's birth.” K.S.A.2011 Supp. 38–2271(a)(9) deals with a parent making no reasonable effort to support or communicate with a child after knowing that the child has been born.

The undisputed evidence in this case is that Z.Z. was living with Mother until she dropped him at a friend's house for a period of several days. Mother testified that she made arrangements to have Z.Z. stay with her friend for a limited time. It does not appear that any of these facts meet the statutory definition of “abandonment.” The trial court erred when it determined that Mother had abandoned Z.Z. Did the Trial Court Prematurely Terminate Mother's Parental Rights?

Mother's second argument is that the trial court prematurely terminated her parental rights. She believes that the termination, which came approximately 4.5 months after Z.Z. was placed in DCF custody, was entered too quickly. Mother argues that the presumption of unfitness does not apply until the child has been out of home for at least 1 year. And while Mother acknowledges that she was not fit during the period when she was using drugs, she believes that she was owed a “reasonable period” in which to complete reintegration.

The trial court is required to make three determinations 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 this court reviews a trial court's termination of parental rights, we consider “whether, after review of all the evidence, viewed in the light most favorable to the State, it 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.

Mother admitted to a law enforcement officer in June 2012 that she was an intravenous methamphetamine user. She volunteered that she had injected methamphetamine in early June 2012. Mother testified that her methamphetamine use dated back to March 2011, with only a brief respite during part of her pregnancy.

One of Mother's case plan tasks was to provide random UAs. Mother did not complete these random UAs. She had a UA test positive for methamphetamine in May 2012; that was the only UA she completed at the request of TFI. Mother had called in for UA testing only twice, despite having been ordered to call every day. Mother also failed to submit to anassessment by a regional alcohol and drug abuse center. But Mother testified that she was sober at the termination hearing because she wanted to regain custody of Z.Z.

Mother's failure to provide clean UAs meant that she was not allowed to see Z.Z. Mother had no visitation with Z.Z. after his referral to DCF custody. A case worker described Mother as being “emotionless” when talking about Z.Z. Mother admitted that she was not sure that she had a bond with Z.Z. Mother clarified that what she meant was that she was not sure she could look at Z.Z. and not “see his father” and be reminded that they were no longer together.

Because TFI Family Services (TFI) did not know where Mother was living, they were unable to determine if Mother's home was appropriate for Z.Z. Mother also failed to furnish any proof of employment. This lack of information was part of a pattern of “very minimal contact” between TFI and Mother. Mother even failed to attend the initial case plan meeting. In fact, Mother did not complete even one of her assigned case plan tasks.

Mother's argument about a statutorily prescribed length of time that must be given to work a reintegration plan is without support. It is true that the presumption of unfitness does not apply until the child has been out of home for at least 1 year. But there is no length of time that must be given for a parent to complete a reintegration plan and no waiting period before a trial court may conclude that a parent's unfitness is unlikely to change in the foreseeable future.

Contrary to Mother's argument, the courts will always view a proceeding in child time and give deference to a child's need for permanence sooner rather than later. See In re D.T., 30 Kan.App.2d 1172, 1175, 56 P.3d 840 (2002). In this case, Z.Z. was taken into custody when he was 4 months old. He has been placed away from Mother since February 2012. Mother did not complete any of her case plan tasks and has not, in fact, even thought about how to complete them. It is not even clear if Mother is living in Kansas; when the termination hearing occurred, she was living with her sister in Nebraska.

The evidence in the record on appeal shows clear and convincing evidence that Mother was unfit under K.S.A.2011 Supp. 38–2269(b)(3) because of the parent's use of dangerous drugs, (b)(7) because the reasonable efforts made by a public or private agency to rehabilitate the family have failed, (b)(8) because of a lack of effort of the parent to adjust her conduct to meet the needs of the child, (c)(2) because the parent has failed to maintain regular visitation, contact, and communication with the child, and (c)(3) because the parent has failed to carry out her case plan tasks. Given this court's standard of review and its duty to consider the case in child time, the trial court properly terminated Mother's parental rights.

Affirmed.


Summaries of

In re Z.Z.

Court of Appeals of Kansas.
Feb 8, 2013
293 P.3d 816 (Kan. Ct. App. 2013)
Case details for

In re Z.Z.

Case Details

Full title:In the Interest of Z.Z., A child in need of care.

Court:Court of Appeals of Kansas.

Date published: Feb 8, 2013

Citations

293 P.3d 816 (Kan. Ct. App. 2013)