In re E.M.

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,569
113,786

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of E.M.
Year of Birth: 2010, A Male,
and
In the Interest of C.C.
Year of Birth: 2012, a Male.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed December 23, 2015.
Affirmed.

Tracy Fredley, of Lawrence, for appellant natural father of E.M.

Juanita M. Carlson, of Carlson Law Office, of Lawrence, for appellant natural mother of E.M.
and C.C.

Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., PIERRON and POWELL, JJ.

Per Curiam: Mother, the natural mother of E.M. and C.C., and Father, the natural father
of E.M., appeal from the decision of the district court to terminate their parental rights.
Specifically, they maintain there was insufficient evidence to support the district court's findings
that they were unfit, that their unfitness was unlikely to change in the foreseeable future, and that
termination of their parental rights was in the children's best interests. We disagree and affirm.

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FACTUAL AND PROCEDURAL HISTORY

On January 9, 2014, the Douglas County District Court entered an ex parte order
placing E.M. and C.C. in protective custody with the Kansas Department for Children
and Families (DCF) after a police welfare check of the family's motel room revealed
drugs and drug paraphernalia within reach of the children. On January 14, 2014, the State
filed a petition that sought to have E.M. and C.C. declared children in need of care
(CINC). The children were placed in the temporary custody of DCF, and an adjudication
hearing was scheduled for April 7, 2014. At the adjudication hearing, the district court
adjudicated both E.M. and C.C. as CINCs.

A dispositional hearing was held on May 19, 2014. The district court determined
that E.M. and C.C. should remain in DCF custody and adopted a permanency goal of
reintegration. But the court warned Mother and Father that the case plan would likely
change to adoption in the near future if their lack of progress on case plan tasks did not
improve.

On December 1, 2014, the parties appeared at a permanency hearing, where the
district court found that reintegration was no longer a viable goal because Mother and
Father were not making adequate progress towards reintegration. Specifically, the court
noted:

"Both parents continue to either test positive for illegal substances or miss
required UAs for testing; both parents struggle with homelessness and have shown
inability to maintain employment. Both parents have been incarcerated during this case.
The mother is currently in the county jail as of November 14, 2014 on a 270 day
commit."

On December 19, 2014, the State filed a motion to terminate Mother's parental
rights to E.M. and C.C. and Father's parental rights to E.M. The State's motion alleged
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that Mother had been incarcerated since November 14, 2014, after entering a no contest
plea to forgery and identity theft and was scheduled to be sentenced on December 29,
2014. The motion stated that Mother showed signs of hypomanic disorder bordering on
bipolar, had previously been hospitalized due to aggressive behaviors, had posttraumatic
stress disorder, admitted to past use of alcohol and drugs but was not always honest about
her use, could not complete an intake to begin therapy while she was incarcerated, and
failed to attend DCCCA services. With respect to Father, the State alleged that he had a
history of depression, posttraumatic disorder, and co-dependent behavior with Mother;
failed to provide proof of his lack of income; and failed to complete an updated RADAC
assessment. The State further claimed that Mother and Father generally had not complied
with the orders and case plan tasks for which they were responsible by failing to
participate consistently in the UA call-in schedule or complete UAs as requested, testing
positive for methamphetamines and/or amphetamines, and missing scheduled meetings
and appointments with a parent trainer. The State also alleged that Mother and Father
were currently homeless, had no income, had been inconsistent with visitation since the
beginning of the case, and were often late and missed numerous visits due to their
incarceration throughout the case.

Mother and Father attended the evidentiary hearing held on March 18, 2015. At
the time of the hearing, E.M. was 4 years old, C.C. was 2 years old, and they had been in
state custody for over 14 months. At the evidentiary hearing, the district court heard
testimony from several witnesses, including the relevant testimony detailed below.

Monica Luedtke

KVC Supervisor Monica Luedtke testified that she began supervising the family's
case in March 2014 and became the family's case manager as of December 2014. Luedtke
identified the tasks Mother and Father were required to complete as part of their
December 2014 case plan. With respect to Mother, Luedtke testified that she had
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completed parenting and psychological evaluations but was not participating in individual
therapy or drug treatment. Although there were parenting classes offered at the jail,
Luedtke did not believe that Mother had engaged in any parent training. Luedtke testified
that Mother's stay in jail had negatively impacted her ability to visit the children.
Mother's incarceration had also impacted her ability to successfully complete drug
treatment or show that she could maintain her sobriety or stable employment and
housing. Luedtke testified that Mother would be incarcerated at least until August 2015
and did not believe that it would be in the children's best interests to wait another 5
months for Mother to start case plan tasks. Luedtke further testified that she would like to
see Mother maintain 6 months of sobriety following her release before she would
consider reintegration.

As for Father, Luedtke testified that he had completed parenting and psychological
evaluations but had failed to successfully complete parent training. Father was
participating in individual therapy but had not completed this case plan task because he
had not received a successful discharge from the providing therapist. Luedtke stated that
Father's parenting was appropriate during visits with E.M., but she had concerns that
Father provided inappropriate snacks, given E.M.'s dental history. Luedtke agreed that
Father and E.M. have a bond.

Luedtke's primary concern with Father was his substance abuse. Father did not call
in or submit UAs consistently; he missed 23 UAs. In February 2015, Father submitted a
UA that was positive for methamphetamine. Luedtke was also concerned with Father's
failure to obtain and maintain stable housing. Although Father had recently gotten a job,
Luedtke recommended a period of 3 to 6 months to show stability in employment.

Luedtke testified that although Father had made progress in carrying out case plan
tasks and goals toward reintegration in the 2 months prior to the termination hearing, she
observed that Father would often increase his case plan involvement prior to court
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hearings and then his participation would fall off. Luedtke further testified that although
Father had done fairly well achieving case plan tasks while Mother was incarcerated,
there was very little follow-through when Father and Mother were together. Luedtke
stated that Father's substance abuse was the primary barrier to reintegration; before
reintegration could occur, Father would need to successfully complete inpatient treatment
and maintain 6 months of sobriety. Other barriers to reintegration included obtaining and
maintaining stable housing, maintaining employment, and engaging in couples therapy.

Autumn Runyan

Autumn Runyan, KVC permanency case manager, testified that she was the
family's case manager from January to May 2014. Runyan participated in preparing the
family's case plan, which required Mother and Father to (1) complete a parenting and
psychological evaluation, (2) participate in parent training, (3) maintain stable housing,
(4) maintain stable employment, (5) participate in visitation, and (6) call in and complete
required UAs. Runyan spoke with Mother and Father at least monthly about the case plan
tasks they needed to complete to achieve reintegration.

Runyan testified that neither Father nor Mother completed a parenting and
psychological evaluation or completed parent training. According to Runyan, Mother and
Father lived in hotels and with friends and were never able to obtain stable housing.
Mother was also incarcerated in April and May 2014. Mother and Father each reported
that they had obtained jobs, but Runyan never received proof that they were actually
employed. Runyan testified that Mother and Father were initially consistent in attending
visits, but in March they started arriving late and missing scheduled visits. During visits,
Runyan had concerns about Mother and Father providing proper nutrition to the children.
Father often failed to call in and only submitted 9 out of 21 UA requests. Two of Father's
UA results were positive for methamphetamine and amphetamine. Runyan testified that
Mother's RADAC evaluation recommended outpatient treatment, but she never
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participated in any treatment. Runyan stated that she told Mother and Father that
substance abuse was the main barrier to reintegration, but they made no progress in this
regard during her time on the case.

Cassie Noori

Cassie Noori was the family's permanency case manager from June to December
2014. Noori testified that she communicated regularly with Mother and Father during this
time, attempting to assist and work with them to complete case plan tasks and achieve
reintegration. Noori stated that Mother completed a parenting and psychological
evaluation in June 2014. The evaluation recommended individual counseling and couples
therapy. Although Noori attempted to set up therapy services for Mother, Mother did not
participate in therapy. Noori testified that Father completed a parenting and psychological
evaluation in May 2014, which recommended individual counseling and couples therapy.
She stated that Father did not complete a therapy intake until November 2014 and did not
ever engage in therapy during Noori's time on the case. Noori testified that Father
attended six parenting classes during June and July 2014 but missed some sessions
thereafter.

According to Noori, the parents' visitation decreased from multiple days per week
to a single weekly visit due to their history of missing visits and their lack of progress in
the case, and the level of supervision during the visits increased. During Noori's time on
the case, both parents missed at least three of their weekly visits with the children, and
Mother missed more visits due to her incarceration. Noori observed Father during
approximately 20 visits with E.M. Noori felt that Father's parenting ability was good and
that he interacted well with E.M., but she had some concerns about Father's lack of
engagement with E.M. and his failure to provide E.M. with proper nutrition.

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Noori testified that the parents' main barrier to reintegration was substance abuse,
with additional barriers being their inability to maintain stable housing and employment.
Although Mother's RADAC evaluation recommended outpatient treatment, Mother did
not engage in any such treatment or update her RADAC evaluation while Noori was on
the case. Neither Mother nor Father regularly called in for required UAs. Mother missed
approximately 20 UAs, and Father missed approximately 25. In addition, Mother and
Father each submitted four UAs that tested positive for methamphetamine and
amphetamines.

Noori further testified that she spoke with Mother and Father about housing
resources, but Mother and Father did not have a permanent residence and mainly stayed
with friends or in a tent in the yard of Father's mother. Noori spoke with Father about
employment resources, but Mother and Father never maintained stable employment.
Noori also claimed that Father would often complete tasks close to court dates.

Eric Fitzmorris

Eric Fitzmorris, Catholic Charities emergency assistance case manager, testified
that Father contacted Catholic Charities in November 2014 to obtain housing assistance.
At that time, Father was unemployed and living in his truck. Fitzmorris developed a
housing stabilization plan with Father, which included health and employment goals.
Although monthly contact was expected after creating a housing plan, Fitzmorris did not
have any significant contact with Father thereafter until March 2015, when Father
advised Fitzmorris that he had found a job. Father failed to appear at an appointment the
following day.

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Father

Father testified that he began using methamphetamine with Mother in January
2014, that he used it on a weekly basis, and that he had most recently used the drug
approximately a week prior to the termination hearing. Father admitted that he did not
call in every day or submit to required UAs as agreed in the case plan. Father stated that
he completed a RADAC evaluation the day before the hearing and made excuses for why
he had not completed one earlier. The evaluation recommended that Father complete
inpatient rehabilitation in either Topeka or Wyandotte County. Father did not know how
long he would be in inpatient treatment and was unsure how long the waiting period was
at either facility. While waiting for a facility opening, Father had no plans for maintaining
sobriety. Father did not attend any 12-step programs for assistance with his drug problem
and did not receive any help from his family, but he stated that he would be willing to
attend Narcotics Anonymous (NA) if he received information about it.

Father testified that he was trying to get his life together by completing the
rehabilitation process, getting a job, and looking for an apartment. To that end, Father
stated that he had been making minimum wage by working at College Hill Pizza Pub for
about 2 weeks prior to the hearing. This was the first paid job Father had since prior to
2013. Father was not sure whether the job provided health insurance. He claimed that he
would be able to return to the job following inpatient treatment. In the 2 weeks prior to
the hearing, Father submitted rental applications to four apartment complexes. Father
anticipated that Catholic Charities would pay for his deposit and first month's rent. Father
admitted that he had signed a Catholic Charities Housing Stability Plan in November
2014 but had failed to complete the plan as of the date of the termination hearing.
Specifically, Father had not consistently called in, set up checking and savings accounts,
created a childcare continuing plan, or enrolled in classes at the adult education center.

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Father admitted to missing parent training appointments. But Father felt that his
visits with E.M. had gone well and stated that he had received good feedback from KVC.
Father testified that he was currently attending mental health therapy for his depression
and PTSD. Father's parenting evaluation also indicated that he had a co-dependency with
Mother. Father was not on any medication for his conditions. Father stated that once
Mother was released from jail, he intended to continue their relationship but would not do
so if she failed to attend treatment or continued to use drugs. Father complained that
KVC should have done more to help him but admitted that KVC had provided him with
bus passes, gas cards, phone cards, call-in calendars, mental health appointments and
appointment reminders, a list of community resources, and monthly meetings to discuss
case plan tasks. Father also admitted that he did not ask his case workers where he could
get additional help.

At the time of the hearing, Father was sleeping in his car purchased about a month
before the hearing. Father stated that he was unsure how much more time he would need
in order to reintegrate with E.M. and did not know whether he might use
methamphetamine again even after treatment. Father also did not know how long it
would take to find somewhere to live once he got out of treatment. However, Father felt
that he could be successful with reintegration because he would never give up on his
family.

Mother

Mother testified that she had been incarcerated at the Douglas County Jail since
November 2014 and that she was still incarcerated at the time of the termination hearing
because she had absconded from work release. Mother stated that she was in custody on a
municipal case until August 15, 2015; was on probation for a Douglas County District
Court case; and had a six-count felony case pending in Shawnee County. Mother testified
that she intended to continue her relationship with Father and understood that any drug
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use by Father would negatively affect her ability to reintegrate with E.M. and C.C.
Mother acknowledged that she needed to complete inpatient treatment before she would
be in a position to parent the children and claimed that she had considered some potential
inpatient facilities. Mother stated that she had participated in a reintegration-type program
during her incarceration and had participated in NA at the Douglas County Jail.

At the end of the hearing, the district court terminated Mother's parental rights to
E.M. and C.C. and Father's parental rights to E.M. Mother and Father timely appeal.

DID SUFFICIENT EVIDENCE EXIST TO SUPPORT THE DISTRICT COURT'S
DECISION TO TERMINATE MOTHER'S AND FATHER'S PARENTAL RIGHTS?

On appeal, Mother and Father argue there was insufficient evidence in the record
to support the district court's ruling terminating their parental rights. Specifically, they
contend that there was insufficient evidence to support the district court's findings that
they were unfit, that their unfitness was unlikely to change in the foreseeable future, and
that termination of their parental rights was in the children's best interests.

In reviewing a district court's decision terminating parental rights, an appellate
court must 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). Clear and
convincing evidence is "an intermediate standard of proof between a preponderance of
the evidence and beyond a reasonable doubt." 286 Kan. at 691. Appellate courts do not
reweigh the evidence, judge the credibility of witnesses, or redetermine questions of fact.
286 Kan. at 705.

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In order for the district court to terminate parental rights, the State must prove by
clear and convincing evidence that (1) the parent is unfit and (2) the conduct or condition
which renders the parent unfit is unlikely to change in the foreseeable future. K.S.A. 2014
Supp. 38-2269(a). The State also must prove, albeit only by a preponderance of the
evidence, that termination is in the best interests of the child. K.S.A. 2014 Supp. 38-
2269(g)(1); see In re R.S., 50 Kan. App. 2d 1105, 1116, 336 P.3d 903 (2014).

K.S.A. 2014 Supp. 38-2269(b) and (c) provide a nonexclusive list of factors that
the court must consider when determining parental unfitness. The existence of any one of
these statutory factors "standing alone may, but does not necessarily, establish grounds
for termination of parental rights." K.S.A. 2014 Supp. 38-2269(f).

In the present case, the district court relied on the following statutory factors in
deciding that Mother and Father were unfit:

 K.S.A. 2014 Supp. 38-2269(b)(3) (use of liquor or drugs that renders the parent
incapable of caring for child);
 K.S.A. 2014 Supp. 38-2269(b)(7) (failure of social service agency efforts to
rehabilitate the family);
 K.S.A. 2014 Supp. 38-2269(b)(8) (lack of effort by the parent to adjust his or her
circumstances to meet the needs of the child);
 K.S.A. 2014 Supp. 38-2269(c)(3) (failure of the parent to carry out a reasonable
court-approved plan to return the child to the parent's home).

Mother's unfitness

Mother challenges the district court's findings that she is unfit, primarily relying
on the case plan tasks that she did complete both prior to and during her incarceration, the
steps she took to address her drug addiction issues, and the positive nature of her
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interactions with E.M. and C.C. during visits. Mother also takes issue with KVC's efforts
to effect reintegration. Father does not challenge the district court's finding that he is
unfit.

Despite Mother's participation in NA while in jail and her inquiries into inpatient
treatment programs, there is overwhelming evidence that she has continually struggled to
maintain her sobriety, as evidenced by her continued drug use, multiple positive UAs,
and failure to show up for required testing. Among the factors the district court cited, it
also found that even prior to her incarceration, Mother did not avail herself of the
numerous services offered to help her participate in case planning and facilitate
reintegration, and the record is replete with uncompleted case plan tasks or requirements
that had been communicated to Mother. Although Mother complains that KVC did not
make reasonable efforts to achieve reintegration, these claims are contrary to the
testimony presented by the family's KVC case workers.

The record reflects that Mother made some efforts to complete case plan tasks
prior to, and during, her incarceration. Despite these efforts, however, there is still clear
and convincing evidence to support the district court's finding that Mother is unfit.

Unfitness unlikely to change in the foreseeable future

Both Father and Mother argue the evidence was insufficient to support the court's
finding that the conduct or condition rendering them unfit is unlikely to change in the
foreseeable future.

In determining whether there is clear and convincing evidence to support the
district court's finding that the conduct or condition rendering Mother and Father unfit is
unlikely to change in the foreseeable future, we consider whether a condition is likely to
change in the foreseeable future from the perspective of the child and not the parent. See,
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e.g., In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re C.C., 29 Kan. App.
2d 950, Syl. ¶ 2, 34 P.3d 462 (2001). Consequently, efforts at rehabilitation or
reintegration must proceed promptly to a successful conclusion. In re D.T., 30 Kan. App.
2d 1172, 1175, 56 P.3d 840 (2002). Parental unfitness can be judicially predicted from a
parent's past history. See In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982).

Considering Mother's and Father's history, there is sufficient evidence to support
the district court's finding that neither parent's unfitness is likely to change in the
foreseeable future. Prior to the current DCF investigation, Mother and Father were the
subjects of at least three previous investigations: (1) In September 2011, E.M. was seen
eating marijuana; (2) in May 2012, it was reported that Mother and Father were using
drugs, that the children were not being supervised, and that their home was dirty; and (3)
in September 2013, unsafe living conditions were reported, along with drug use by
Mother. E.M. and C.C. had been in state custody since January 2014 as a result of the
current DCF investigation. As noted by the district court, neither Mother nor Father had
made any significant effort to address their drug addictions in the 14 months between the
children's removal from their care and the termination hearing. Indeed, Father submitted
positive UAs, failed to show up for required testing, admitted to using methamphetamine
weekly, and stated that he had last used the drug approximately a week prior to the
hearing. Mother also submitted positive UAs and failed to show up for required testing
prior to her incarceration. Luedtke testified that Father and Mother would need to achieve
6 months of sobriety before she would consider reintegration.

Father suggests that the district court should have granted him additional time to
complete his case plan tasks because E.M. had not actually been in an out-of-home
placement for a significant amount of time under the definition of "'[e]xtended out of
home placement'" set forth in K.S.A. 2014 Supp. 38-2202(i). But Father's argument is
misplaced. Extended out-of-home placement findings are only relevant with respect to a
district court's unfitness determination under K.S.A. 2014 Supp. 38-2269(b)(9) that a
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child has been in extended out of home placement as a result of the parent's actions or
inactions. Here, the district court made no findings under K.S.A. 2014 Supp. 38-
2269(b)(9). Although Father rightfully notes the progress he made in completing some
case plan tasks shortly before the termination hearing, the record reflects that in addition
to Father's failure to adequately address his substance abuse issues, he had not achieved
any sort of stability with respect to housing or employment and appeared to become
serious about completing case plan tasks only when a court date was approaching.

Additionally, Mother was to be incarcerated for at least 5 more months after the
termination hearing and had additional felony charges pending. Although Mother claimed
she planned to request a sentence modification so she could participate in treatment and
would therefore be in a position to parent the children in "a few months," this court has
held that incarceration can be used as a factor to support a finding that a parent's
condition would not change in the foreseeable future. See In re M.B., 39 Kan. App. 2d at
47-48 (finding 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). Significantly, Mother would still need to
show 6 months of sobriety following her incarceration before the reintegration process
could begin. In addition, Mother has no history of maintaining stable employment or
housing.

At the time of the hearing, E.M. and C.C. had been in state custody for more than
14 months. The district court was justified in finding that any additional time was more
than the State or the parents should ask of these children. There is clear and convincing
evidence that the conduct or condition rendering Mother and Father unfit is unlikely to
change in the foreseeable future.

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Best interests

Finally, we must consider whether the district court correctly determined that
terminating Mother's and Father's parental rights was in the children's best interests.
Because the district court hears the evidence directly, it is in the best position to
determine the best interests of a child, and an appellate court cannot overturn it without
finding an abuse of discretion. In re K.P., 44 Kan. App. 2d 316, 322, 235 P.3d 1255, rev.
denied October 7, 2010. An abuse of discretion occurs when the district court acts in an
unreasonable, fanciful, or arbitrary manner or when the court bases its decision on an
error of fact or an error of law. Northern Natural Gas Co. v. ONEOK Field Services Co.,
296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). In considering
termination, we are to give primary consideration to the child's physical, mental, and
emotional needs. K.S.A. 2014 Supp. 38-2269(g)(1).

Here, the district court found that the children's best interests would best be served
by terminating Mother's and Father's parental rights. Specifically, the court noted that
E.M. and C.C. had

"spent a significant portion of their young lives in foster care. These children require
permanency and deserve to know who will be raising them and they deserve to be raised
in a [stable] and safe environment. These biological parents have not provided those basic
needs to these children and are not in a position to do so in the foreseeable future."

Mother and Father argue the record is insufficient to support a finding that
termination of their parental rights was in E.M.'s and C.C.'s best interests. Specifically,
Mother claims the district court's ruling was in error because the court used the parental
unfitness findings to support its finding that termination was in the children's best
interests and there was no evidence presented from a therapist or social worker to show
what effect termination would have on the children. Father contends the court erred in
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making a best-interests finding by failing to consider evidence of his consistent visitation
and his close bond with E.M.

Mother's argument that the district court used the parental unfitness findings to
support its finding that termination was in the children's best interests is without merit.
The court's written findings specifically set out the statutory bases for its conclusion that
Mother and Father are unfit. The court then set out specific reasons detailing why
termination of their parental rights is in the children's best interests, considering their
physical, mental, and emotional health. Given the evidence before the district court,
testimony from a therapist or social worker to show what effect termination would have
on E.M. and C.C. is not necessary to make a best-interests finding. The family had been
the subject of multiple DCF investigations. Additionally, the court heard evidence that
the children were taken into state custody in January 2014 after they were discovered in a
motel room with drugs and drug paraphernalia nearby. Since that time, the State
attempted to work with the parents through multiple case plan tasks, but they were unable
to follow through consistently. Both Mother and Father have a history of drug issues that
they have yet to address in any meaningful way, and neither of them were able to show
that they could maintain stable employment or housing. At the time of the termination
hearing, Mother was to be incarcerated for at least 5 more months and was facing
additional felony charges.

As to Father's objections, there is nothing in the record to suggest that the district
court did not consider Father's bond with E.M. in making its decision. The bond between
a child and a parent is but one factor a court may consider in ruling on a motion to
terminate parental rights. Despite the existence of such a bond, however, it cannot be said
that termination of Father's parental rights was not in E.M.'s best interests. Mother and
Father had more than 14 months to sufficiently make the changes that could have resulted
in the children's reintegration into their home. A reasonable person could agree with the
district court's best-interests decision, and there is no indication that the decision was
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based on any error of fact or law. As a result, the district court did not abuse its discretion
when it concluded that terminating Mother's and Father's parental rights was in the best
interests of E.M. and C.C.

Affirmed.