In re I.I.M.

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NOT DESIGNATED FOR PUBLICATION

No. 117,711

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of
I.I.M.,
A Minor Child.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; DANIEL T. BROOKS, judge. Opinion filed December 29,
2017. Affirmed.

Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellant natural mother.

Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.

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

PER CURIAM: Mother appeals the district court's termination of her parental rights
to I.I.M., challenging the district court's findings that she is unfit and that her unfitness is
unlikely to change in the foreseeable future. Finding no error, we affirm.

Factual and procedural background

I.I.M. was born in 2012. In July 2014, law enforcement officers responding to a
report arrived at Mother's home and found I.I.M. wearing only a t-shirt and observed
feces, food, and trash all over the floor. Mother stated that I.I.M. was potty-training and
sometimes went on the floor. There was little food in the home, and Mother reported that
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she did not have time to clean the home because she was working two jobs and attending
school.

When a social worker and a worker from the Department for Children and
Families (DCF) returned to the home the next day, they saw that Mother had removed the
trash but had made no attempt to remove the feces or clean the floor. When they told
Mother it was feces on the floor, she disagreed and stated that it was food. Mother asked
the worker, "it smells like feces?" Because the home remained unsafe and unsanitary for
the child, DCF filed a child in need of care (CINC) petition.

Mother did not contest the petition, and the district court found that I.I.M. was a
CINC. In January 2015, the State filed a motion for a finding of unfitness and termination
of parental rights. At the first termination hearing, held in May 2015, several social
workers and mental health professionals testified to Mother's multiple mental health
diagnoses, including schizophrenia, and her failure to consistently take prescribed
medications to manage her mental health. A witness testified that Mother reported taking
"Mollys"—a mixture of cocaine, methamphetamine, and MDMA ("Ecstasy") and buying
medication on the black market. The case manager reported difficulty convincing Mother
of her need for medication compliance and substance abuse treatment because Mother did
not believe that she had the issues the professionals in the case had observed.

The district court found that the State had presented, by clear and convincing
evidence, a prima facie case of Mother and Father's current unfitness. But the district
court granted a six-month continuance, finding Mother had the possibility of becoming
the parent that her child needed. The district court set a new termination hearing for
November 2, 2015, with 60-day reviews. On November 2, Mother was given, in an
abundance of caution, another six-month extension to allow her to demonstrate consistent
change.
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At the end of that extension, in April 2016, the district court held a hearing and
found that although Mother had made some substantial changes in her life, she continued
to be inconsistent in making and keeping visitation appointments, taking medication, and
participating in therapy and community support. The district court found that Mother
continued to have difficulty determining the relative importance of things in her life as
"necessary for a little kid to be able to grow up in an orderly life." After hearing
testimony from Mother, case workers, counselors, and mental health professionals, the
district court found that Mother was unfit, that her unfitness would not change within a
time that is meaningful to I.I.M., and that it is in the best interests of I.I.M. for Mother's
parental rights to be terminated. Mother timely appeals.

Standard of Review

Because a parent has a fundamental liberty interest in the relationship with his or
her child, the allegations of conduct that form the basis for termination must be proved by
clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982). In applying that standard, we review all of the evidence,
in the light most favorable to the State, to determine whether a rational fact-finder could
have found that the truth of the facts asserted is highly probable. In re B.D.-Y, 286 Kan.
686, 697-98, 187 P.3d 594 (2008). In reviewing the district court's decision, we may not
reweigh the evidence, judge the credibility of witnesses, or redetermine factual questions.
286 Kan. at 705.

To terminate parental rights, the district court must find that a parent is unfit by
reason of conduct or condition which renders the parent unable to properly care for his or
her child, that the conduct or condition is unlikely to change in the foreseeable future, and
that termination of parental rights is in the child's best interests. K.S.A. 2016 Supp. 38-
2269(a), (g)(1). These findings must be supported by clear and convincing evidence.

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Mother contends that she had made significant progress toward reintegration and
that insufficient evidence shows her unfitness and future unfitness, but Mother does not
challenge the district court's finding that termination is in the best interests of I.I.M.

The Statutory Scheme

K.S.A. 2016 Supp. 38-2269(b) sets out a nonexclusive list of nine grounds for
termination of parental rights. If supported by clear and convincing evidence, a single
statutory basis for unfitness can support terminating a parent's rights. K.S.A. 2016 Supp.
38-2269(f); In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014). The district
court relied on two of these statutory bases: Mother's emotional illness, mental illness,
mental deficiency, or physical disability, of such duration or nature as to render her
unable to care for the ongoing physical, mental, and emotional needs of the child, K.S.A.
2016 Supp. 38-2269(b)(1); and Mother's lack of effort to adjust her circumstances,
conduct, or conditions to meet the needs of the child, K.S.A. 2016 Supp. 38-2269(b)(8).

I. Management and effect of mental illness, K.S.A. 2016 Supp. 38-2269(b)(1)

Mother reported that she was first diagnosed with schizophrenia at age 16 or 17.
During this case, Mother was hospitalized for three days for psychosis and confusion in
July 2014, shortly after I.I.M. was removed from the home. She was hospitalized for
severe anxiety in November 2014. The records from COMCARE mental health center
show that her primary diagnosis was schizoaffective disorder, bipolar type, with
additional diagnoses of unspecified anxiety disorder; posttraumatic stress disorder;
unspecified sedative-, hypnotic-, or anxiolytic-related disorder; mild cannabis use
disorder; mild opioid use disorder; and narcolepsy.

Mother's attendance at mental health medication management appointments was
spotty. She missed five appointments between February 2015 and February 2016. Mother
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attended an appointment at COMCARE in November 2015, shortly after the court date at
which the district court granted a second continuance. She was next seen on April 4,
2016—two days before the final termination hearing.

At the appointment, Mother reported that she was feeling "crazy depressed," did
not want to do anything, and was sleeping much more than usual. She stated that she had
been depressed for over a month and had stopped taking two of her medications because
they had stopped working. The provider reported to the court that Mother was taking one
of her medications "sporadically" and not taking the two antidepressants, based on the
pharmacy fill records. Although several indicators on her mental status exam were within
normal limits, the provider observed that she was malodorous, her attention and
concentration were distracted at times, and her insight and judgment were poor. The
provider found her prognosis to be "guarded."

The evidence of Mother's long-standing mental illness and her unwillingness or
inability to manage it through medication convinces us that a rational factfinder could
find it highly probable that she has an emotional or mental illness of such duration or
nature as to render her unable to care for the ongoing physical, mental, and emotional
needs of I.I.M. See K.S.A. 2016 Supp. 38-2269(b)(1).

II. Lack of effort to adjust the parent's circumstances, conduct, or conditions,
K.S.A. 2016 Supp. 38-2269(b)(8)

The district court found that Mother had made "some substantial changes," and
that she had shown she could "do well for a little while." The record supports those
findings. But the district court also found that Mother's efforts were insufficient. In
addition to Mother's failure to manage her illness medically, she also failed to
consistently attend therapy sessions. Mother's therapist reported that Mother did not show
up for a therapy session on April 1, 2016, because she forgot about it, but Mother seemed
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anxious to reschedule because of the court's requirements. The Saint Francis Community
Services (SFCS) case worker observed that Mother had failed to show secondary change
in seeking therapy and was "engaging in therapy due to the upcoming court date and not
because she sees that she has a need to be in therapy."

Employment

Mother contends that she consistently found and maintained full-time
employment. The record confirms that Mother continuously obtained employment, but
shows that she did not maintain jobs for long. Mother testified she had 14 to 16 jobs
during one six-month extension period. During one six-month extension, Mother
provided only two paystubs to verify her employment: one dated December 21, 2015,
and another dated January 15, 2016, from a different employer. Mother lost one job
because she was incarcerated for a probation violation. One month before the hearing,
Mother left a voicemail for her reintegration social worker, in which she reportedly said
that she got a new job and that she "gets a new job every two weeks." Mother's social
worker reported that she had no proof that Mother was employed as of two weeks before
the court date.

Mother's failure to maintain consistent employment evidences a lack of stability
and illustrates that she has not adjusted her conduct or circumstances to provide for the
financial and emotional needs of her child.

Substance Abuse

Mother's use of illegal drugs seems to have diminished significantly after the
November 2015 hearing. She had negative drug screens in November and December
2015 but failed to report for testing in January 2016. She had a negative hair follicle test
in March 2016. However, she had a DUI conviction in February 2016, reportedly for
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Xanax, and she immediately violated her probation by failing to report for a court-
ordered substance abuse evaluation. She served a sanction for that in the county jail. She
was ordered to have a Breathalyzer lockout device installed in her car as a condition to
having her driver's license restored, but it was not working at the time of the hearing.
Mother's continuing substance abuse is incompatible with the physical and mental well-
being of her child.

Finances

Mother completed a budgeting class in October 2014, but the record shows that
Mother lacks financial stability. The only verification of employment and income that
Mother provided was two paystubs from different employers in December 2015 and
January 2016. As of the week before court, Mother still had not made any payments on
her $953 obligation resulting from her DUI. She had no primary care provider because
her previous provider refused to see her again until she paid her bill. SFCS had been
paying for Mother's individual therapy since December 2016 because she could not
afford it. However, she testified that she paid a person to drive her places at a cost of $5
per ride because she could not drive on a suspended license.

Relatives paid Mother's debt of more than $1,000 for her back rent in November
2015. Yet, she testified at the hearing that she had just rented a two or three-bedroom
house with all new furniture and a washer and dryer, without explaining how she could
afford to do so. Mother's financial choices do not demonstrate her ability to care for a
child.

Visitation

Mother's failure to regularly schedule and attend visits with her son weighed
heavily in the district court's decision. This can, of itself, be a sufficient basis for
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termination. K.S.A. 2016 Supp. 38-2269(c)(2), (f). Section 38-2269(c) sets out four
factors the district court must consider when, as here, the child is not in the physical
custody of the parent. The factor particularly applicable here is (c)(2), "failure to maintain
regular visitation, contact or communication with the child or with the custodian of the
child." Mother's SFCS case worker reported that Mother failed to make appointments for
visitation with I.I.M. and had canceled or arrived late for some appointments. From the
first termination hearing in May 2015 until March 18, 2016, Mother attended only 22 of
44 possible visitations. From November 2015 to April 2016, Mother attended only 7 of
21 possible visits.

The visits never progressed beyond one-hour supervised visits because of safety
concerns. Mother had been reminded more than once to move her medications from the
table to a location where I.I.M. could not reach them and to move a hookah pipe from the
floor. This showed an inability to put into practice the skills Mother was being taught.

Although Mother did make significant progress on some tasks, she failed to show
continuous progress toward meeting the goals necessary for her to ably parent a child.
We find clear and convincing evidence of Mother's unfitness.

III. Likelihood of Change in the Foreseeable Future, K.S.A. 2016 Supp. 38-
2269(a)

Mother also challenges the district court's finding that her inability to care for her
child is unlikely to change in the foreseeable future. K.S.A. 2016 Supp. 38-2269(a).
"Foreseeable" is examined from the perspective of a child, not of an adult. In re M.H., 50
Kan. App. 2d at 1170. A court may predict a parent's future unfitness based on his or her
past history. In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982).

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Mother cites portions of testimony from her therapist, her probation officer, the
SFCS family support worker, and the case manager about various changes Mother had
made and about various attitudes she had exhibited. Mother quotes her own testimony
which stated that she could care for the child "physically, emotionally, materially, and
financially." But Mother had to rely on notes to testify to those conclusions and to present
factors in her favor for reintegration.

Mother relies heavily on the following statement from the district court:

"[M]other has made some changes and they are substantial. First of all, she was working
as a dancer [at Jezebel's adult entertainment club]. That's no longer part of her life. She
wasn't on medication; really, may have been self-medicating. That's changed. She now
really believes that these medications are part of what enables her to get on with her life.
So I think she has made some efforts."

This statement, however, precedes the district court's crucial findings that Mother had not
made sufficient, consistent changes that would enable her to safely parent I.I.M., as we
have detailed above.

The record shows that Mother failed to demonstrate stability, consistency, and the
ability to prioritize her son's needs, even after having received two extensions. After two
extensions totaling 11 months, Mother had still not demonstrated consistent attendance at
counseling appointments, medication management appointments, or visitation with
I.I.M., and she failed to consistently take medications prescribed for her mental illness.
Although this is not an egregious case, the record shows it is highly probable that
Mother's unfitness would not change within a time that's meaningful to I.I.M.

The district court also found that Mother loves I.I.M. and that he loves her. A
parent may be found "unfit" even though he or she loves the child. See In re A.A., 38
Kan. App. 2d 1100, 1105, 176 P.3d 237 (2008). Such is the case here. The district court
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properly found that despite Mother's affection for her son, she is unable to safely take
care of him "day in/day out, 24-7."

The record contains clear and convincing evidence supporting the district court's
findings that Mother is unfit and that her unfitness is unlikely to change in the foreseeable
future. The record additionally shows, as Mother concedes, that termination of her
parental rights is in I.I.M.'s best interests.

Affirmed.