In re H.J.

1

NOT DESIGNATED FOR PUBLICATION

No. 120,491


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of H.J., A.J., and C.J.,
Minor Children.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed August 9, 2019.
Affirmed.

Michael J. Nichols, of Michael J. Nichols, P.A., of Kansas City, for appellant natural mother.

Ashley Hutton, assistant district attorney, and Mark A. Dupree Sr., district attorney, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON and GARDNER, JJ.

PER CURIAM: P.T. appeals the ruling of the Wyandotte County District Court
terminating her right to parent her three young children. Given P.T.'s admitted inability to
house or financially support the children at the time of the termination hearing and the
absence of any realistic prospect for a timely change in those circumstances, we find no
error in the district court's decision and affirm.

FACTUAL AND PROCEDURAL HISTORY

The Department for Children and Families took custody of H.J., the middle child,
shortly after she was born in early 2015 because of her exceptionally low weight that
medical professionals characterized as indicative of a failure to thrive. H.J. remained in
State custody and a foster placement through the conclusion of the termination
2

proceeding in September 2018. The Department obtained an order to remove A.J. Jr. and
C.J. from the home in August 2017 following an incident in which their father broke out
most of the windows in their apartment after becoming angry with P.T. At the time A.J.
Jr. was just over 4 years old, and C.J. was 18 months old. The Department also uncovered
circumstances suggesting C.J., in particular, had been neglected.

A.J. Jr. and C.J. were then adjudicated in need of care, as H.J. had been much
earlier. As the social service agency designated to assist the family, KVC formulated a
reintegration plan for P.T. that included a series of evaluations and programs geared
toward improving her ability to parent. Although P.T. and A.J. Sr. were not married, they
had the children in common and lived together. The appellate record suggests A.J. Sr.
was mercurial and at least emotionally abusive of P.T. and the children. Agency reports
include references to the excessive use of alcohol by both parents and father's physically
abusive conduct. The reintegration plan included tasks and objectives related to curbing
domestic violence and drug and alcohol misuse.

P.T.'s approach to the reintegration plan that began in 2015 for H.J. could be fairly
characterized as lackluster. Even after all three children had been placed in State custody,
P.T. had met some of the reintegration objectives but not others. The State filed a motion
to terminate the parental rights of both P.T. and A.J. Sr. The district court began the
termination hearing in April 2018. A.J. Sr. voluntarily relinquished his parental rights to
the children, so he did not participate in the hearing and is not a party to this appeal.

At the hearing, P.T. testified that she had been living with A.J. Sr. in an apartment
in Kansas City, Missouri, but they had separated, and he moved out. P.T. told the district
court A.J. Sr. had remained on the lease. Nonetheless, P.T. produced what she
represented to be a "draft" lease prepared by an employee of the apartment complex
showing her as the only adult tenant. P.T. also testified that she had regular work through
a temporary employment agency. She said she could not provide paystubs or similar
3

documentation because the agency deposited her pay on an electronic card. P.T. testified
she had recently completed various tasks included in the reintegration plan but had no
confirming documents from the service providers.

Two KVC caseworkers testified at the hearing. They said P.T. last provided an
apartment lease about a year earlier in only A.J. Sr.'s name. They also said P.T. failed to
provide documentation of her claimed employment and had not completed all of the
reintegration tasks or achieved all of the objectives.

The district court expressed skepticism about much of P.T.'s testimony and in
particular about her living arrangements and her employment. As a result, the district
court recessed the hearing and directed KVC to investigate P.T.'s present circumstances.
The district court scheduled the conclusion of the hearing for mid-July. But the
termination hearing didn't reconvene until early September.

At the reconvened hearing, the State called a representative of the apartment
complex who testified that P.T. never received a lease in her name and that P.T. and A.J.
Sr. had been evicted. A KVC caseworker testified he went through the apartment shortly
after the April hearing and saw men's clothing and personal care products in the
apartment. He testified that P.T. told him her brother was living there temporarily. P.T.
again testified. She admitted she had produced a phony lease at the April hearing and had
lied about it in her testimony in an effort to stave off the termination of her parental
rights.

P.T. testified she was living with her sister and had recently quit a good job
because she could not arrange transportation to and from the workplace. P.T. explained
that she had been financially dependent on A.J. Sr. and was struggling to live
independently. As a result, P.T. acknowledged she was not in a position to take custody
4

of her children or to parent them. She offered neither a timetable nor an outline for
becoming sufficiently independent to do so.

The district court found P.T. to be unfit within the meaning of the Revised Kansas
Code for Care of Children, K.S.A. 2018 Supp. 38-2201 et seq. See K.S.A. 2018 Supp.
38-2269(a). The district court specifically cited these statutory grounds for unfitness as to
all three children:

• P.T. was physically, mentally, or emotionally neglectful of the children, as
provided in K.S.A. 2018 Supp. 38-2269 (b)(4);

• Reasonable efforts of appropriate public and private agencies failed to
rehabilitate the family, as provided in K.S.A. 2018 Supp. 38-2269(b)(7);

• P.T. demonstrated a lack of effort to adjust her circumstances or conduct to meet
the needs of the children, as provided in K.S.A. 2018 Supp. 38-2269(b)(8); and

• After the children had been removed from the home, P.T. failed to carry out a
reasonable plan to reintegrate the family, as provided in K.S.A. 2018 Supp. 38-
2269(c)(3).

The district court concluded those conditions of unfitness were unlikely to change in the
foreseeable future. In addition, as to H.J., the district court found P.T. to be
presumptively unfit under K.S.A. 2018 Supp. 38-2271(a)(6) because the child had been
in an out-of-home placement for more than two years, P.T. had failed to carry out a
reasonable reintegration plan, and there was "a substantial probability" she would not do
so in the foreseeable future. Finally, the district court held that the best interests of the
children would be served by terminating P.T.'s parental rights. The district court filed a
journal entry of termination on September 21, 2018.
5


P.T. has appealed.

LEGAL ANALYSIS

On appeal, P.T. essentially challenges the sufficiency of the evidence to support
the district court's determination she was unfit. We begin our review with the legal
principles guiding the courts in termination proceedings.

A parent has a constitutionally recognized right to a continuing relationship with
his or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 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) (citing
Santosky). The right entails a substantive liberty interest shielded in the Due Process
Clause of the Fourteenth Amendment to the United States Constitution. See Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (substantive liberty
interest); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070
(1925) (recognizing "the liberty of parents and guardians to direct the upbringing and
education of children under their control"). Accordingly, the State may terminate a
parent's right to raise a minor child only upon clear and convincing proof of parental
unfitness. K.S.A. 2018 Supp. 38-2269(a); Santosky, 455 U.S. at 769-70; In re R.S., 50
Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).

After children have been adjudicated in need of care, as happened here, a district
court may terminate parental rights "when the court finds by clear and convincing
evidence that the parent is unfit by reason of conduct or condition which renders the
parent unable to care properly for a child and the conduct or condition is unlikely to
change in the foreseeable future." K.S.A. 2018 Supp. 38-2269(a). 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). And the statute lists four other conditions to be
6

considered if a parent no longer has physical custody of a child. K.S.A. 2018 Supp. 38-
2269(c). A district court may also rely on one or more of the statutory presumptions set
out in K.S.A. 2018 Supp. 38-2271(a) to find a parent unfit. A single ground may be
sufficient to establish unfitness. See K.S.A. 2018 Supp. 38-2269(f).

In assessing the unlikelihood of change in the foreseeable future under K.S.A.
2018 Supp. 38-2269(a), we gauge the permissible duration using "child time" as the
measure. As the Code recognizes, children experience the passage of time in a way that
makes a month or a year seem considerably longer than it would for an adult, and that
difference in perception typically tilts toward a prompt, permanent disposition. K.S.A.
2018 Supp. 38-2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); 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").

When the sufficiency of the evidence supporting a district court's decision to
terminate parental rights is challenged, an appellate court will uphold the findings of
unfitness and unlikelihood of change if, after reviewing the evidence in the record in a
light most favorable to the prevailing party, they are supported by clear and convincing
evidence. Stated another way, the appellate court must be persuaded that a rational fact-
finder could have found it highly probable that the circumstances justify unfitness and
unlikelihood of change as components of the termination of parental rights. In re B.D.-Y.,
286 Kan. at 705. In evaluating the record, the appellate court does not weigh conflicting
evidence, pass on the credibility of witnesses, or determine factual questions. In re
Adoption of B.B.M., 290 Kan. 236, 244, 224 P.3d 1168 (2010); In re M.H., 50 Kan. App.
2d 1162, 1170, 337 P.3d 711 (2014). Here, we must view the evidence presented at the
termination hearing in favor of the State, as the party prevailing on the motion.

7

We begin with the observation that the district court provided no detailed
explanation of how specific aspects of the evidence supported the particular statutory
grounds it identified in finding P.T. unfit. The journal entry simply identifies the
particular subsections of K.S.A. 2018 Supp. 38-2269(b) and K.S.A. 2018 Supp. 38-
2271(a) along with a summary of the statutory language. The district court's comments
from the bench both at the end of the April portion of the termination hearing and at the
conclusion of the hearing in September don't shed much more light on the factual bases
for its legal conclusions. We can, however, say with some clarity that the district court
considered P.T.'s testimony in April to be less than credible—a determination that was
redoubled with her admission in September that she had phonied up the lease and lied
about it during her earlier testimony.

We can locate an array of factual anchors in the undisputed evidence, P.T.'s
admissions, and the district court's enunciated credibility determinations. First, and
perhaps foremost, P.T. was unable to parent her children in September 2018 at the
conclusion of the termination hearing. P.T. did not have a residence of her own and was
living with her sister. She had no job and, thus, no income. Not to put too fine a point on
it, P.T. could nether house nor financially provide for her children, as she conceded.
Those are the two most tangible components of adequate parenting within the meaning of
the Code. Unfitness entails "conduct or condition" rendering the parent "unable to care
properly for a child." K.S.A. 2018 Supp. 38-2269(a). The inability to shelter or support a
child cuts to the core of parental duties and obligations. See State ex rel. Secretary of SRS
v. Bohrer, 286 Kan. 898, 906-07, 189 P.3d 1157 (2008) (recognizing common-law duty
of parent to financially support minor child). Good parenting requires something more in
the form of emotional sustenance and moral guidance. But a parent's love and affection
alone cannot overcome an inability to materially or emotionally care for a child. This
court has recognized that parents who love their children may, nonetheless, be unfit. See
In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237 (2008); In re A.L.E.A., No.
8

116,276, 2017 WL 2617142, at *6 (Kan. App.) (unpublished opinion), rev. denied 307
Kan. 986 (2017).

In September 2018, P.T. was unfit within the meaning of the Code. We needn't try
to pigeonhole her unfitness into one of the illustrative conditions set out in K.S.A. 2018
Supp. 38-2269(b) or (c). The facts may support unfitness based on neglect or P.T.'s lack
of effort to adjust her circumstances to meet the children's needs. But unfitness may rest
on the general statutory standard in K.S.A. 2018 Supp. 38-2269(a)—the inability to care
properly for a child. See K.S.A. 2018 Supp. 38-2269(b) (district court "not limited to"
listed factors in considering unfitness); In re M.P., No. 119,444, 2019 WL 2398034, at *4
(Kan. App. 2019) (unpublished opinion). Here, based on the evidence, a fact-finder could
conclude to a high probability that P.T. could not care for her children in September
2018.

The other aspect of unfitness required the State to establish that P.T. would remain
unfit for the foreseeable future. Although the unlikelihood of change may be a closer
question, the evidence also sufficiently supported the district court's conclusion on that
component of the termination decision. Over the course of the unfitness proceedings—
more than three years in H.J.'s case—P.T. demonstrated a marked lack of attentiveness
and diligence in accomplishing the tasks necessary to regain custody of the children. In
April, P.T. resorted to trickery to suggest to the district court she was making progress.
That course of conduct does not bode well for P.T. successfully overcoming her unfitness
in any reasonable time.

In addition, in September 2018, P.T. had none of the primary tools necessary to
parent her children. As we have said, she had neither a suitable residence nor any
employment. The record strongly suggests P.T.'s employment prospects were, at best,
limited. Her work history over the course of the case was, even based on her testimony,
9

spotty; and even that history was largely unverified. Also, as we have said, P.T. offered
no plan for getting on her feet and in a position to regain custody of her children.

Especially taking account of "child time," the district court correctly concluded
P.T. was unlikely to become fit in the foreseeable future. H.J. had been in a foster
placement virtually her entire life, approaching four years at the conclusion of the
termination hearing. By then, C.J. had been in a foster placement for about 40 percent of
her life. With no realistic prospect for reintegration in some defined timeframe, the
district court acted properly to opt for terminating P.T.'s parental rights and, in turn,
opening the path to permanency for the children.

On appeal, P.T. primarily argues that KVC did too little to assist her in
accomplishing the objectives of the reintegration plans. And the agency's efforts bear on
some of the statutory grounds the district court cited in finding P.T. unfit. But other
grounds and the more general statement of unfitness in K.S.A. 2018 Supp. 38-2269(a) are
not tied to what a social service agency may or may not have done to assist an otherwise
failing parent.

Similarly, although P.T. mentions the best interests determination as a necessary
component of a termination decision, she makes no focused argument (and really no
argument at all) that the district court erred in that respect. As a matter of completeness
and rather than legal obligation, we touch briefly on that component of termination. See
Wrinkle v. Norman, 297 Kan. 420, 426, 301 P.3d 312 (2013) (point raised incidentally on
appeal deemed abandoned).

A child's best interests are assessed somewhat differently than unfitness or
unlikelihood of change. As directed by K.S.A. 2018 Supp. 38-2269(g)(1), the district
court should give "primary consideration to the physical, mental[,] and emotional health
of the child" in making a best interests determination. A district court decides best
10

interests based on a preponderance of the evidence. See In re R.S., 50 Kan. App. 2d at
1116. The decision essentially rests in the district court's sound judicial discretion. 50
Kan. App. 2d at 1115-16. An appellate court reviews those sorts of conclusions 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); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

We find no abuse of discretion in the district court's best interests determination in
favor of terminating P.T.'s parental rights. Nothing in that decision suggests the district
court either misunderstood the relevant facts or misapplied the governing legal standards.
We are then left to ask simply whether no reasonable judge would have come to the same
conclusion in similar circumstances. We are confident that other judges would have
reached the same conclusion on what was best for the children.

What we have already discussed readily supports the best interests outcome. P.T.
had no realistic prospects for becoming a fit parent in any reasonable time, especially
given the ages of the children. The duration of the foster placements measured against the
children's young ages also pointed toward termination as furthering their extended
interests in achieving stable, supportive, and nurturing home environments. The district
court did not abuse judicial discretion in so concluding.

Affirmed.