In re A.T.

1

NOT DESIGNATED FOR PUBLICATION

No. 120,211

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of A.T.,
A Minor Child.


MEMORANDUM OPINION

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed May 10, 2019.
Affirmed.

Brian L. Williams, of Williams Law Office, LLC, of Emporia, for appellant natural father.

Meghan K. Morgan, assistant county attorney, and Marc Goodman, county attorney, for appellee.

Before GARDNER, P.J., ATCHESON and SCHROEDER, JJ.

SCHROEDER, J.: S.T. (Father), the natural father of A.T.—born in 2015— appeals
the district court's termination of his parental rights. Father contends the State failed to
present sufficient evidence he was an unfit parent and his unfitness is unlikely to change
in the foreseeable future. He also alleges the district court abused its discretion by
determining termination was in the best interests of A.T. We find in a light most
favorable to the State, the decision to terminate S.T.'s parental rights is supported by clear
and convincing evidence. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In August 2016, the Kansas Department for Children and Families (DCF) received
a report of alleged physical neglect of one-year-old A.T. based on concerns about the
condition of her mother's (Mother) home. Father was not in the home and was
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incarcerated at the Winfield Correctional Facility. Following an investigation by DCF
employees and law enforcement, A.T. was taken into police protective custody. The State
filed a petition in the district court to have A.T. declared a child in need of care. The
district court placed A.T. in the temporary custody of DCF. Father appeared at an
adjudication hearing where he stipulated A.T. was a child in need of care, and the district
court adjudicated A.T. a child in need of care. The court ordered A.T. to remain in DCF
custody and ordered the parties to complete case plan tasks designed to reintegrate A.T.
with Mother and Father.

By February 2017, A.T. was placed with her maternal grandmother and step-
grandfather. Father was still incarcerated and was unable to complete many case plan
tasks, though reintegration continued to be a viable option. Father had monthly visits with
A.T. and was scheduled to be released from a prison work release facility in May 2018.

On April 5, 2018, the district court found reintegration was no longer a viable
option and directed the State to move for termination of parental rights. Thereafter, the
State filed a motion to terminate Mother's and Father's parental rights. The district court
entered a default judgment terminating Mother's parental rights and held an evidentiary
hearing on the termination of Father's parental rights in September 2018. At the
termination hearing, the State presented two witnesses and Father testified in his behalf.

The State's case

Brooke Mosto, a Corrections Counselor at the Wichita Work Release Facility,
testified she helped Father with employment opportunities and finances in order to help
him reintegrate into the community. Mosto stated she worked with Father for about a
year, but he did not successfully complete the program. Mosto explained Father tested
positive for methamphetamine and amphetamines in November 2017 and was terminated
from his job after he potentially tested positive for THC in March 2018. Ultimately, it
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was determined the test could not be used because the temperature of the urine was not
right. Then a multidisciplinary team (MDT) met to consider Father's options. Father
became combative at the meeting. The MDT removed Father from the work release
program and he was sent back to the Winfield Correctional Facility. Mosto testified while
Father was at the work release facility, Father participated in the advanced practice group
after completing drug and alcohol treatment. Mosto believed Father cared deeply for A.T.
and he was focused on changing and getting out of prison to see her.

Next, Jennifer Billet, a social worker with St. Francis Community Services,
testified she began working with Father's family in August 2017. Billet testified about
Father's progress on the assigned case plan tasks. Father was to maintain weekly contact
with St. Francis. Billet acknowledged Father took positive steps to be involved with
parenting time with A.T., but he failed to progress or comply with other case plan tasks.
Father was to maintain employment and provide pay stubs to St. Francis. Billet said
Father had indicated he was employed, but he had provided no documentary proof of
employment. Father was to allow St. Francis to conduct random drop-in visits into his
home. Billet testified Father was living with his parents. St. Francis had not visited the
home and could not move forward with visitation due to Father's ongoing substance
abuse. Father was to abstain from drug and alcohol use, submit to drug tests, and
complete a new drug and alcohol evaluation. According to Billet, Father had submitted to
regular testing but had a positive hair follicle test and had admitted to recent
methamphetamine use prior to a mouth swab. Billet stated Father did not schedule a new
drug and alcohol evaluation after the positive test. Father was to complete a mental health
intake, but Billet stated Father had not done so.

Billet also testified Father completed a parenting class and a substance abuse
course while incarcerated. Father had monthly visits with A.T. during his incarceration at
the work release facility, and Billet had no concerns with their interactions. Following
Father's release from prison, Father was offered weekly visitation beginning July 24,
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2018. Billet testified some visits scheduled before then did not end up taking place due to
scheduling and miscommunication issues on the part of St. Francis. Billet said the visits
went well, other than one visit in September, where Father was less active with A.T. and
appeared to be nodding off. But Billet felt Father's drug use was concerning and found it
significant he could not abstain from using even while incarcerated. Billet noted Father
was scheduled for parole in May 2018, but his release was delayed after he was removed
from the work release program. This, in turn, delayed Father's ability to work on case
plan tasks and have visitation with A.T. Billet testified no other services could be given
to Father at that time to help him quickly reintegrate A.T. into his home.

Father's case

Father testified he was in prison when A.T. was removed from Mother's home.
Father was released on July 6, 2018, about three months before the termination hearing.
Father testified during his time in prison he took a parenting class, completed a drug and
alcohol evaluation, and maintained contact with St. Francis. Father said he wanted to be
involved in the case and see A.T. whenever possible. Father stated visits with A.T. went
well at the work release facility and they had developed a strong bond. Father stated since
his release from prison, he got a job at Simmons and had missed no appointments with St.
Francis. After his release, Father moved in with his parents in Emporia and had his own
room there. Father said there was also space for A.T. and her grandparents loved her and
wanted her at their home. Father attended all scheduled visits and wanted to see A.T. as
much as possible. Father testified his parenting class taught him how to reintegrate with
A.T. with minimal disruption following his incarceration and he had applied these lessons
during visitation.

Father testified he completed a drug and alcohol evaluation and had recently had
his first outpatient therapy session. Father said he had used drugs since he was a teenager
and he was going through drug treatment for the first time. Father said he wanted to move
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forward, take care of A.T., and keep her from being exposed to drugs. But Father
admitted, contrary to his case plan requirements and the conditions of his parole, he had
used methamphetamine and marijuana with Mother about two weeks before the
termination hearing and had also done so two days before the hearing. Father asked the
court for additional time to work on the reintegration process, focusing on his attempts at
making positive changes in his life and noting he had never before progressed this far in
drug treatment.

District court decision

In reviewing the evidence at the close of the termination hearing, the district court
characterized it as "a story of two cases." The court found while Father was incarcerated,
he did everything he could to spend time with A.T. and took advantage of the
opportunities available to him. But the court found the loss of Father's job due to drug use
and his removal from work release resulted in "a domino effect" causing Father to lose
two months of working on his case plan tasks and time with A.T. The court noted once
Father got out of prison, he made every effort to spend time with A.T. and there was "no
doubt" Father had "very deep feelings" for her. The court specifically stated its decision
was not based on Father's visits with A.T., which were the "shiny spot in this case." The
court found that while Father had complied with some case plan tasks, he had not
complied with the requirement he abstain from drug and alcohol use and had even
admitted to using drugs a couple of days before the termination hearing. Ultimately, the
district court found by clear and convincing evidence Father was unfit by reason of
conduct or condition which rendered him unable to properly care for A.T. and the
conduct or condition was unlikely to change in the foreseeable future. The district court
also considered the physical, mental, and emotional health of A.T. and determined
termination of Father's parental rights was in A.T.'s best interests.


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ANALYSIS

We begin with some general principles governing proceedings under the Revised
Code for Care of Children, K.S.A. 2018 Supp. 38-2201 et seq. A parent has a
constitutionally protected liberty interest in the relationship with his or her child. See
Santosky v. Kramer, 455 U.S. 745, 753, 759-60, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Given the inherent
importance and unique character of that relationship, the right has been deemed
fundamental. Accordingly, the State may extinguish the legal bonds between parent and
child only upon clear and convincing proof of parental unfitness. K.S.A. 2018 Supp. 38-
2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).

As provided in K.S.A. 2018 Supp.38-2269(a), the State must prove the parent to
be unfit "by reason of conduct or condition" making him or her "unable to care properly
for a child" and the circumstances are "unlikely to change in the foreseeable future." The
statute contains a nonexclusive list of nine conditions that singularly or in combination
would amount to unfitness. K.S.A. 2018 Supp. 38-2269(b).

In reviewing a district court's determination of unfitness, an appellate court must
be convinced, based on the full evidentiary record considered in a light favoring the State
as the prevailing party, a rational fact-finder could have found that decision "highly
probable, i.e., [supported] by clear and convincing evidence." In re B.D.-Y., 286 Kan. at
705. The appellate court cannot weigh conflicting evidence, pass on the credibility of
witnesses, or otherwise independently decide disputed questions of fact. 286 Kan. at 705.
In short, any conflicts in evidence must be resolved for the State's benefit.

Having found unfitness, the district court must then decide whether termination of
parental rights is "in the best interests of the child." K.S.A. 2018 Supp. 38-2269(g)(1). As
directed by the language of K.S.A. 2018 Supp. 38-2269(g)(1), the district court gives
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"primary consideration to the physical, mental[,] and emotional health of the child." The
district court makes that determination based on a preponderance of the evidence. See In
re R.S., 50 Kan. App. 2d at 1116. The best-interests issue is essentially entrusted to the
district court acting within its sound judicial discretion. 50 Kan. App. 2d at 1115-16. An
appellate court reviews those sorts of decisions for abuse of discretion. A district court
exceeds that broad latitude if it rules in a way no reasonable judicial officer would under
the circumstances, if it ignores controlling facts or relies on unproven factual
representations, or if it acts outside the legal framework appropriate to the issue. See
Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d
1106 (2013).

Statutory factors considered

Here, the district court found four statutory factors had established Father's
unfitness:

 K.S.A. 2018 Supp. 38-2269(b)(3)—"the use of intoxicating liquors or narcotics 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;"
 K.S.A. 2018 Supp. 38-2269(b)(5)—"conviction of a felony and imprisonment;"
 K.S.A. 2018 Supp. 38-2269(b)(7)—"failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family; " and
 K.S.A. 2018 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."

Father specifically challenges the district court's finding under K.S.A. 2018 Supp.
38-2269(b)(7) that St. Francis made reasonable efforts to complete reintegration, as well
as the court's finding that his unfitness was unlikely to change in the foreseeable future.
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The evidence presented at the termination hearing established Father was
convicted of distributing methamphetamine and was incarcerated for almost the entirety
of A.T.'s case and life. While Father was incarcerated and working at the work release
facility, he tested positive for drugs in November 2017 and later lost his work-release job
based on another potentially positive test. Father's drug use ultimately resulted in his
removal from the work release facility and placement back in prison, which delayed his
ability to have visitation with A.T. and work toward reintegration. After Father's release
from prison in July 2018, he continued to use illegal drugs, even admitting to drug use
two days before the termination hearing. Father knew the termination hearing was set and
still chose to use drugs.

Next, Father contends St. Francis did not make reasonable efforts to reintegrate
him with A.T. following his release from prison. Father points to the July 2018 visits that
did not take place as proof of St. Francis' failure, claiming these missed visits interrupted
and slowed his progress toward reintegration. Approximately 18 days passed from the
time Father was released and started his visits on July 24, 2018. We find the time to start
his visitation did not detrimentally interfere with his opportunity to reintegrate with A.T.

The language in K.S.A. 2018 Supp. 38-2269(b)(7) imposes an obligation upon the
relevant social service agencies to expend reasonable efforts toward reintegrating the
child with his or her parents. To that end, the social service agencies should attempt to
help the parent accomplish case objectives designed to correct the parent's conduct or
condition that caused removal of the child from the home. Contrary to Father's claim, the
record is replete with examples of St. Francis' reintegration efforts and management of
Father's case plan tasks, which included transporting A.T. to visit Father and making
special arrangements to increase the amount of visitation allowed at the work release
facility. Billet testified the July 2018 visits did not take place due to miscommunication
and scheduling issues. The mere fact St. Francis was not able to facilitate these visits
does not negate the numerous and reasonable efforts made for Father. Any claim St.
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Francis failed to make reasonable efforts to reintegrate Father and A.T. is contradicted by
the record.

Notably, the district court's decision to terminate was not based on Father's
visitation with A.T. but instead was based primarily on Father's continued drug use. The
court also acknowledged Father failed to comply with the reintegration plan noting,
among other issues, Father failed to do the mental health intake and attend therapy. From
the evidence outlined above, we must conclude a rational fact-finder could determine to a
high probability that Father was unfit to parent A.T. at the time of the termination hearing
in the ways identified by the district court since drug use was a continuing problem.

Given the totality of the circumstances in the record, we find sufficient support for
the district court's determination Father's unfitness was unlikely to change in the
foreseeable future. A district court may look to a parent's past conduct as an indicator of
future behavior. See In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982); In re
M.T.S., No. 112,776, 2015 WL 2343435, at *8 (Kan. App. 2015) (unpublished opinion).
Father had a prior felony drug conviction that resulted in his incarceration for much of
A.T.'s life and this case. Although Father took some positive steps while incarcerated, he
was unable to refrain from drug use while on work release privileges in prison.
Ultimately, his work release privilege was revoked. Once released from prison, Father
continued to use drugs and, even knowing his parental rights were at risk, chose to use
drugs two days before the termination hearing. His past drug use and current drug use are
active indicators of his future conduct.

However, Father claims his previous setbacks are not indicative of future drug use.
Father notes the termination hearing took place less than three months after his release
from prison, and he suggests the district court should have given him additional time to
address his drug addiction and prove he could remain drug free. Father argues the court
ignored all the positive progress he made while incarcerated and only focused on his prior
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conviction and recent drug use. Father argues additional time to work on his reintegration
tasks would do little to prejudice A.T. because she is currently placed with her
grandparents. But Father fails to acknowledge that while incarcerated in prison where
drugs are prohibited, he still used drugs to A.T.'s detriment. This showed Father's
inability to put the needs of his child over his perceived need to use illegal drugs.

We examine the "foreseeable future" from the perspective of a child. K.S.A. 2018
Supp. 38-2201(b)(4); In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014).
Children and adults have different perceptions of time, and a child has the right to
permanency within a time frame reasonable to them. 50 Kan. App. 2d at 1170; see In re
G.A.Y., No. 109,605, 2013 WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion)
("'child time'" differs from "'adult time'" in care proceedings "in the sense that a year . . .
reflects a much longer portion of a minor's life than an adult's"). At the time of the
hearing, A.T. was three years old and the case had been ongoing for two years. Father
argues he only needs "[a] small amount of additional time" to show the possibility of
reintegration. While "a small amount" of time may appear insignificant to Father, it is a
significant amount of time to A.T. We agree with the district court's decision declining
Father's request for additional time. Father had the time in prison and after his release to
learn to be drug free. Father chose to use drugs instead of abstaining for A.T.'s benefit.

Best interests

Finally, we look at the district court finding A.T.'s best interests would be served
by terminating Father's parental rights. The district court is in the best position to make
findings on the best interests of the child, and we will not disturb its judgment unless we
find the determination amounts to an abuse of judicial discretion. In re K.P., 44 Kan.
App. 2d 316, 322, 235 P.3d 1255 (2010). Father argues the district court focused only on
Father's past and recent substance abuse in making its best interests finding. Father
claims the court failed to give adequate weight to the progress he made toward
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reintegration while in prison and since his release, namely his recent participation in drug
treatment and his "strong bond" with A.T.

We are not persuaded by Father's arguments. Instead, we are convinced the district
court evaluated all the testimony and evidence before determining it is in A.T.'s best
interests to terminate Father's parental rights. In reaching this conclusion, the district
court noted the case had been pending for two years and it could not rely on Father's
behavior to change given his past conduct and continued drug use. A reasonable person
could have found the same and concluded termination was in the best interests of A.T.

Having reviewed the record, we are convinced a rational fact-finder would have
found by clear and convincing evidence Father is unfit and his unfitness is unlikely to
change in the foreseeable future. The district court did not abuse its discretion in finding
termination of Father's parental rights is in A.T.'s best interests. We affirm.

Affirmed.

* * *

ATCHESON, J., dissenting: The majority upholds the determination of the Lyon
County District Court that S.T.'s inability to parent his daughter A.T. was unlikely to
change anytime soon based mostly on an aphorism—that past conduct indicates future
behavior—and little in the way of actual evidence. That faulty conclusion supplied a
necessary legal component for the termination of S.T.'s parental rights. The State
produced insufficient evidence on the point, especially given the heightened burden of
proof applicable in these cases. And bumper sticker jurisprudence cannot excuse a dearth
of evidence when it comes to extinguishing fundamental constitutional rights. I
respectfully dissent and would reverse and remand for further proceedings.

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As the moving party in this action, the State had to prove S.T. to be an unfit parent
to A.T. and that A.T.'s best interests would be served by terminating his parental rights.
Unfitness entails two components: (1) The parent has to be "unfit" at the time of the
termination hearing; and (2) the condition of unfitness must be "unlikely to change in the
foreseeable future." K.S.A. 2018 Supp. 38-2269(a). The district court had to find each
component of unfitness proved by clear and convincing evidence. K.S.A. 2018 Supp. 38-
2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014). On appeal, we
review those determinations by asking whether a rational fact-finder could have found
them "highly probable, i.e., [supported] by clear and convincing evidence." In re B.D.-Y.,
286 Kan. 686, 705, 187 P.3d 594 (2008). We do not weigh conflicting evidence, pass on
the credibility of witnesses, or otherwise independently decide disputed questions of fact.
286 Kan. at 705. And we credit any disputed evidence in the State's favor as the
prevailing party.

The significance of the right at stake cannot be overstated. The bond between
parent and child and the concomitant relationship entails a liberty interest protected in the
Fourteenth Amendment to the United States Constitution. See Santosky v. Kramer, 455
U.S. 745, 753, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan.
at 697-98. The right of a parent to that relationship and participation in his or her child's
upbringing has been characterized as fundamental. Santosky, 455 U.S. at 753. By the
same token, the right is not boundless, and the State may exercise a parens patriae
interest to intercede to protect the child's physical or emotional well-being. See K.S.A.
2018 Supp. 38-2201(a) (proceedings under Revised Kansas Code for Care of Children
"deemed to be pursuant to the parental power of the state"); Santosky, 455 U.S. at 766.
The heightened burden of proof on the State derives from the importance of the familial
interests at issue in a termination hearing and is constitutionally mandated as a matter of
due process. 455 U.S. at 769-70.

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Parental rights once judicially terminated can never be redeemed. The severance is
irrevocable.

At the time of the termination hearing, S.T. was unfit, and he conceded as much.
S.T. had been and continued to be addicted to methamphetamine. He persistently, if
irregularly, used methamphetamine and had a history of abusing alcohol and sometimes
other drugs for more than 10 years.

S.T. was in prison when A.T. was born because he had been convicted of
possession of methamphetamine with the intent to distribute. While there, S.T. was
placed in a work release program and arranged regular visits with A.T., which the record
suggests was an unusual privilege. Nonetheless, S.T. tested positive for illegal drugs and
was removed from work release and lost visitation with A.T. S.T.'s mistake also delayed
his release from prison for several months.

Shortly before S.T. was released from prison in July 2018, the State moved to
terminate his parental rights. The district court held an evidentiary hearing on September
27 to consider termination. The evidence showed that S.T., who was then 28 years old,
quickly got a job at a local manufacturing plant and had already earned a promotion and a
raise. S.T. was living with his parents in their home. He testified that A.T., who was then
about two-and-a-half years old, would have her own room there. S.T. indicated that he
viewed living with his parents as a temporary circumstance. The State offered no
evidence that those living arrangements were unsuitable. S.T. had weekly parenting
sessions with A.T. that generally went well, and the two appeared to have a good
relationship.

But S.T.'s drug addiction continued to be a problem, as he acknowledged. S.T.
tested positive for methamphetamine in August. He told his caseworker in mid-
September that he had spent the preceding weekend with A.T.'s mother and the two of
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them used methamphetamine. At the hearing, the assistant county attorney asked S.T.
when he had last used drugs. He replied that he had used methamphetamine and
marijuana two days earlier. Nobody asked S.T. any follow-up questions, so we don't
know the circumstances.

S.T. testified that he had begun abusing drugs as a teenager. He said he completed
a drug education course in prison geared toward the general inmate population, since no
substance abuse treatment program was available to him as an addict. S.T. testified that
earlier in September he had started an outpatient treatment program—the first such
program he tried—and had been to one session.

J.S., A.T.'s mother, was a spectral player throughout the case, sometimes
mentioned but rarely present in the district court. After A.T. was born in March 2016, she
lived with J.S. and J.S.'s son A.M. who is about nine years older than A.T. and is her
half-brother. The children were removed from J.S.'s custody in August 2016 because of
her general neglect and the unsanitary condition of their home. J.S. is an active drug
addict and eventually stopped participating in the family reintegration plan designed for
her and failed to appear for court hearings. She effectively defaulted in the termination
proceeding. J.S.'s parental rights have been terminated, and she is not a party to this
appeal.[1]

[1]Based on the appellate record, A.T. was a normal, well-adjusted two-and-a-half
year-old at the time of the termination hearing. A.T. and A.M. have lived with their
maternal grandmother and her husband, since they were removed from J.S.'s custody.
The couple's laudable efforts to insure the children's welfare have not gone unnoticed.

In the journal entry terminating S.T.'s parental rights, the district court cited four
statutory grounds for his unfitness: (1) his use of "narcotic or dangerous drugs" rendering
him "unable to care for" A.T., under K.S.A. 2018 Supp. 38-2269(b)(3); (2) his conviction
of a felony and imprisonment, under K.S.A. 2018 Supp. 38-2269(b)(5); (3) the failure of
15

family reintegration despite the reasonable efforts of appropriate social service agencies,
under K.S.A. 2018 Supp. 38-2269(b)(7); and (4) his "lack of effort" to adjust his
circumstances to meet A.T.'s needs, under K.S.A. 2018 Supp. 38-2269(b)(8). The district
court relied on S.T.'s continuing abuse of methamphetamine and marijuana as the factual
basis for his present unfitness at the time of the termination hearing. A single statutory
ground may be sufficient to support parental unfitness. And I have no quarrel with the
conclusion that S.T.'s unchecked methamphetamine addiction left him unable to parent
A.T. in September 2018. As I mentioned, S.T. conceded as much in his testimony—a
candid bow to practical realities, though, not strictly speaking, a binding legal concession.
Someone using methamphetamine on a regular basis could be arrested suddenly and
without warning and then prosecuted, convicted, and likely incarcerated. That uncertainty
and those consequences make active methamphetamine abuse incompatible with capable
parenting, wholly apart from the deleterious toll long-term abuse commonly takes on the
physical and mental capacity of the abuser.[2]

[2]I don't believe S.T. was unfit as provided in K.S.A. 38-2269(b)(5), requiring
conviction of a felony and incarceration. As I understand that ground, a parent may be
considered unfit because he or she is serving an extended prison sentence (on a felony
conviction) and, therefore, cannot fulfill conventional and necessary parental obligations
to a minor child. See In re A.L.E.A., No. 116,276, 2017 WL 2617142, at *3-4 (Kan. App.)
(unpublished opinion), rev. denied 307 Kan. 986 (2017). Because S.T. had been released
from prison by the time of the termination hearing, that ground did not apply to him. The
conviction itself might be considered as circumstantial evidence bearing on other reasons
S.T. could be unfit.

The crux of the termination decision lies in whether S.T.'s unfitness was unlikely
to change in the foreseeable future. The State had to prove that statutory requirement by
clear and convincing evidence, as well. The district court summarized the factual
circumstances of S.T.'s ongoing drug abuse to conclude, without anything more, that his
unfitness would be unlikely to change. In both its bench ruling and the journal entry, the
district court then recited, "Past performance is the best indicator of future performance."
The district court stopped there, as if that aphorism sewed things up.
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The majority essentially replicates the district court's mistake after recognizing the
genesis of the saying in In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982). In
Price, this court commented: "Even if the State's evidence in this case might lack expert
prognostic evidence, we are satisfied continued unfitness can be judicially predicted from
a parent's past history without expert opinion testimony." 7 Kan. App. 2d at 483. The
legal context in Price explains the comment and helps illustrate its marked limitation,
especially in circumstances like this case. Nonetheless, invocation of the past as proof of
the future has become a mainstay in termination cases.

The father in Price appealed the termination of his parental rights on the grounds
his son could not have been a deprived child (the equivalent of a child in need of care
under the current code) because the State took the child into protective custody at birth.
Since the baby had not actually been deprived, father argued the State failed to establish a
legal prerequisite to terminating his parental rights. The Price court rejected the argument
by pointing out the statutory scheme did not require giving physical custody of newborns
to parents when doing so predictably could cause the children harm. The predictability of
physical or emotional harm based on circumstantial evidence was sufficient to find the
newborn to be deprived and, thus, to initiate proceedings to have the child declared a
ward of the State and for temporary placement apart from the parents. In that case, the
baby likely had special needs requiring even more attentive care than a typical newborn.
7 Kan. App. 2d at 478, 480-81.

The court recognized a parent's present capacity to meet a child's basic physical
and emotional needs bore on whether the child was deprived or in need of care. The
issue, however, focused on the status of the child rather than the capacity of the parent,
especially his or her future unfitness. 7 Kan. App. 2d at 483. Having disposed of the
specific legal challenge father raised on appeal, the court did go on to discuss father's
unfitness as a component of the termination of his parental rights. In that context, the
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court made its observation that "continued unfitness can be judicially predicted from a
parent's past history." 7 Kan. App. 2d at 483.

Linguistic redundancy aside ("past" history being the only kind of history there is),
the statement doesn't really provide much in the way of precedential authority or
guidance. First, of course, it is dicta. See State v. Hankins, 304 Kan. 226, 237, 372 P.3d
1124 (2016) ("dicta . . . binds nobody"). Second, we have no idea what facts the Price
court considered in that case as undergirding its suggestion. The court rather deliberately
didn't tell us. Price, 7 Kan. App. 2d at 478 ("We are satisfied from the record that the
evidence, which we need not reiterate, was more than sufficient to clearly and
convincingly prove the father unfit to have the custody of this child."). So it isn't really
possible to apply the observation by analogy to the factual circumstances of another case.
See State v. Lowe, No. 110,103, 2015 WL 423664, at *11 n.5 (Kan. App. 2015)
(unpublished opinion) (Atcheson, J., dissenting) (noting difficulty in applying holding in
State v. Ransom, 288 Kan. 697, 715-16, 207 P.3d 208 [2009], as "analogous precedential
authority" because opinion omits governing facts). Finally, the Price court did not
purport to create a legal presumption, let alone a categorical rule, in which past dictates
future. And the notion shouldn't be deployed that way.

What the Price court articulates in a conveniently quotable way is the sort of
water-is-wet idea that how a person has behaved may sometimes be a decent indicator of
how he or she will behave. In other words, past conduct offers some circumstantial
evidence of future conduct. But the evidentiary chain often may be constructed of tissue
paper rather than tempered steel. Several irregular and infrequent occurrences spread over
a long time may not be especially predictive, depending on the particular conduct. (For
example, we probably shouldn't conclude a person is an active drug abuser because he or
she used cocaine several times over the course of a decade.) Or an intervening event may
strongly suggest the chain has been materially weakened or broken altogether. (For
example, a person recently diagnosed with bipolar disorder and engaged in course of
18

therapy and medication should not be considered floridly ill based on his or her past
behavior.)

The evidence here shows that S.T. sought out and began a parent-child
relationship with A.T. to the extent he was able while in prison. That effort was cut short
when S.T. used illegal drugs during work release, continuing a pattern of abuse going
back years. In the three months after he was discharged from prison leading up to the
termination hearing, S.T. obtained gainful employment, found a place to live that
included space for A.T., and began a drug treatment program—a first for him. Those
mark substantial steps toward forging a healthy familial relationship with A.T., and they
are steps S.T. could not have undertaken before his release from prison.

S.T. could have initiated drug treatment six weeks earlier, a delay the district court
and the majority strongly count against him. He also used methamphetamine three times
during that three-month period. Those circumstances adequately support the district
court's finding of present unfitness.

But the State offered insufficient evidence to convince a reasonable fact-finder
that S.T.'s unfitness was unlikely to change in the foreseeable future. First, of course, the
State offered no evidence that S.T.'s employment and residence were insufficient or
inappropriate. Likewise, the weekly visits between S.T. and A.T. pointed toward a
successful, ongoing relationship. More particularly to the district court's reasoning on
unfitness, the State offered no evidence that S.T. had so intractable a drug problem that
he likely would fail in his treatment program. We similarly lack any evidence on how
long S.T.'s treatment program would take or how long a period of demonstrable sobriety
might be required afterward to permit full integration of S.T. and A.T. as a family.[3]

[3]A parent's successful completion of a drug treatment program would not itself
alleviate the condition of unfitness. Sobriety over time would be the true test. But an
otherwise suitable parent could undertake an expanding custodial role in his or her child's
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life with appropriate supervision ultimately leading to familial unification and an end to
court intervention. See K.S.A. 2018 Supp. 38-2255(d)(1) (custody of child to State);
K.S.A. 2018 Supp. 38-2258(a), (d) (recognizing State may place child in home of parent
or relative, subject to conditions promoting welfare of child).

The record evidence simply does not sufficiently support unlikelihood of change
as a necessarily component of unfitness and, therefore, to terminate S.T.'s parental
relationship with A.T. as a fundamental, constitutionally protected right. The district
court should have denied the State's request for termination and afforded S.T. more time
to complete the designated plan, including drug treatment, for gaining full custody of
A.T.

Neither the district court nor this court can augment an insufficient record with a
modestly clever saying about how past predicts future. As this court recognized earlier
this year, that sort of reasoning-by-slogan can be improperly wielded in these cases as a
categorical rule that "once a drug abuser, always a drug abuser." In re L.D., No. 119,613,
2019 WL 257979, at *5 (Kan. App. 2019) (unpublished opinion). In In re L.D., we
rejected such incantations as grounds for termination because "an addict entering
treatment and achieving sobriety during a child in need of care proceeding would be
legally unable to overcome a history of substance abuse." As we pointed out, "an entirely
backward looking analysis disserves the whole point of rehabilitative efforts to
reintegrate families." 2019 WL 257979, at *5. The same considerations are at play here.

I recognize, as the majority says, the "foreseeable future" for parental change
should be measured from the perspective of the child. K.S.A. 2018 Supp. 38-2201(b)(4).
Statutory "child time" differs from adult time because for young children a month or a
year reflects a greater portion of their lives than the same period would for older teens or
adults, and that difference in perception typically favors prompt case disposition
achieving permanency. In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re
A.L.E.A., No. 116,276, 2017 WL 2617142, at *4 (Kan. App.) (unpublished opinion), rev.
20

denied 307 Kan. 986 (2017). This time frame becomes particularly significant when a
family unit has been shattered, repair of that unit remains uncertain, and the child lacks a
permanent home as a ward of the State. Children in state custody often wind up moving
from foster placement to foster placement as these cases progress, leaving them adrift
both physically and emotionally. A.T.'s particular situation militates against giving child
time a great deal of weight—she has been living with her maternal grandmother
throughout these proceedings in a stable, supportive environment in which she has, by all
accounts, done well.

In closing, I offer several comments by way of limitation on what I suggest as the
proper disposition here. If the evidence in a given case shows that a parent chronically
abused alcohol or other drugs and had refused to participate in treatment programs or had
failed in them either before or during the child in need of care proceedings, that history
properly could be weighed against the parent notwithstanding his or her declared
intentions to do better. Similarly, a parent who procrastinates in seeking professional help
for a substance abuse problem during the case and finally does so just before a
termination hearing—a year or 18 months into the process—typically shouldn't get much
credit for the belated effort. Finally, a district court need not afford dispensation to the
parent continually denying any active substance abuse problem in the face of clear
contrary evidence. But those situations differ materially from where S.T. stood last
September as he sought more time from the district court to become a fit parent.

I have no way of knowing whether S.T. would have succeeded in beating his drug
addiction. Maybe he would have failed. But both he and A.T. were due more of a chance
than they were given for him to succeed or fail.