In re J.F.

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NOT DESIGNATED FOR PUBLICATION

No. 119,578


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of J.F.,
A Minor Child.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed March 1, 2019.
Affirmed.

Raymond E. Probst Jr., of The Probst Law Firm P.A., of Kansas City, for appellant.

SueZanne M. Bishop, assistant district attorney, and Mark A. Dupree Sr., district attorney, for
appellee.

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

PER CURIAM: M.L.F. appeals the ruling of the Wyandotte County District Court
terminating his right to parent J.F., his eight-year-old son. He contends that the evidence
fails to support the finding of unfitness and that, in any event, he was given insufficient
time to improve his circumstances to regain custody of J.F. The evidence established
M.L.F. had continuing drug problems, did not obtain suitable housing or employment to
support J.F., and displayed what appeared to be a deliberate indifference to the plan set
up to permit him to reunite with J.F. We find no error in the district court's determination
and affirm.

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PROCEDURAL HISTORY

While J.F. was living with M.L.F. in California, state authorities there took
custody of J.F. because he alleged M.L.F. had sexually abused him. S.M., J.F.'s mother,
lived in Wyandotte County with his three half-siblings. In late November 2016, the
Kansas Department for Children and Families began investigating S.M. as a potentially
unfit parent. The district attorney filed a petition in January 2017 alleging J.F.'s half-
siblings to be children in need of care. About that time, California transferred custody of
J.F. to Kansas, where he remained a ward of the state. J.F. became the subject of this
parallel child in need of care proceeding. For the most part, the proceedings for all four
children were handled together in the district court.

The district court entered interim orders directing appropriate agencies to develop
plans for reintegrating the family. Pertinent here, the agencies put together a reintegration
plan for M.L.F. to regain custody of J.F. S.M.'s legal status with respect to J.F. and his
half-siblings is not before us in this appeal.

The comprehensive plan for M.L.F. required that he obtain suitable housing and
employment and that he participate in evaluations for various rehabilitative and
educational programs, such as substance abuse counseling and parenting classes. The
plan also called for M.L.F. to have regular visitation with J.F., ideally expanding from
relatively short supervised visits at agency facilities set up for that purpose to longer
unsupervised visits in the community. The district court monitored M.L.F.'s progress in
the reintegration plan tailored for him.

On November 1, 2017, the State filed a motion to terminate the parental rights of
M.L.F. and S.M. The district court held an evidentiary hearing on December 21, 2017,
for M.L.F. The hearing for S.M. was postponed. The district court filed a journal entry on
January 5, 2018, terminating M.L.F.'s parental rights to J.F. The district court found
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M.L.F. to be unfit, the condition of unfitness would not change in the foreseeable future,
and J.F.'s best interests would be furthered by the termination. M.L.F. has timely
appealed the termination of his parental rights.

LEGAL ANALYSIS

We begin our review with an outline of legal principles governing termination
actions and then apply those principles to the evidence. A parent has a constitutionally
recognized right to a parental 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). Accordingly, the State may terminate
parental rights with respect to a child only upon clear and convincing proof of parental
unfitness. K.S.A. 2017 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 a child has been adjudicated a child in need of care, 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 the child and the conduct or condition is unlikely to change in the
foreseeable future." K.S.A. 2017 Supp. 38-2269(a). In considering a parent's unfitness,
the district court may apply the factors outlined in K.S.A. 2017 Supp. 38-2269(b) but is
not limited to them. Additional statutory factors apply when a child has been removed
from the home. See K.S.A. 2017 Supp. 38-2269(c). A single factor may be sufficient to
establish unfitness. See K.S.A. 2017 Supp. 38-2269(f).

In this case, the district court relied on five statutory factors in concluding that
M.L.F. was unfit: (1) his long-term use of illegal drugs, K.S.A. 2017 Supp. 38-
2269(b)(3); (2) his physical, mental, or emotional neglect of J.F., K.S.A. 2017 Supp. 38-
2269(b)(4); (3) the inability of reasonable efforts by social service agencies to rehabilitate
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the family, K.S.A. 2017 Supp. 38-2269(b)(7); (4) his lack of effort to adjust his
circumstances, conduct, or conditions to meet the needs of J.F., K.S.A. 2017 Supp. 38-
2269(b)(8); and (5) his failure to carry out a reasonable plan approved by the court
directed toward reintegration of the family after J.F. had been removed from his custody,
K.S.A. 2017 Supp. 38-2269(c)(3).

When the sufficiency of the evidence supporting a decision regarding the
termination of parental rights is challenged, an appellate court will uphold the decision
when, after reviewing the evidence in the record in a light most favorable to the
prevailing party, the district court's findings are supported by clear and convincing
evidence or, stated another way, the appellate court is persuaded that a rational fact-finder
could have found it highly probable that the circumstances warrant 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).

The specific circumstances prompting California to remove J.F. from M.L.F.'s
custody are not clear from the record. The district court declined to rely on the
proceedings in California in considering termination and based its ruling on what
happened after J.F. was transferred to Kansas in January 2017.

The evidence at the termination hearing showed that M.L.F. did virtually nothing
significant to achieve the objectives set out in the reintegration plan the district court
approved in February 2017. He failed to maintain monthly contact with Charissa
Boldridge, his case manager, contacting her only three times. Although M.L.F. contacted
Paula Blevins, his case worker, on a monthly basis, he consistently refused to schedule
in-person meetings with her notwithstanding her requests. He told her he needed to work.

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M.L.F. did sign releases for information as requested by the social service
agencies. But he put off a psychosocial evaluation for four months. At the termination
hearing, M.L.F. attributed the delay to lack of communication from his case worker. The
case worker disputed his contention. The evidence also showed M.L.F. did nothing to
follow up with the recommendations made as a result of the evaluation.

One of the recommendations involved parenting classes. M.L.F. never attended
parenting classes, even though he was offered options for free classes. According to
Blevins and Boldridge, M.L.F.'s parenting skills were markedly inadequate. During the
supervised visits, which M.L.F. did regularly attend, he discussed his case with the case
worker, talked about the sexual abuse allegations with J.F., spoke negatively about J.F.'s
half-sisters, and told J.F. that he was living in his car or in unsanitary living conditions
instead of focusing his attention on J.F. Out of 23 visits with J.F., M.L.F. exhibited
appropriate parenting without redirection from the case worker only once. He frequently
arrived late to the visits and often completed phone calls before turning his attention to
J.F. On several occasions during the hour-long visits, M.L.F. would lay his head back in a
chair and fall asleep. Based on M.L.F.'s behavior, Blevins suspected that he sometimes
came to visitation under the influence of methamphetamine. During the visits, M.L.F.
routinely resisted engaging in activities J.F. wanted him to do, instead complaining that
J.F. always got to choose the activity. According to the case workers, M.L.F. also became
frustrated when he could not understand J.F. and occasionally yelled at him for age-
appropriate behavior. Almost needless to say, M.L.F. was not authorized to have
unsupervised community visits with J.F.

Throughout the case, M.L.F. never had stable housing. For months, he ignored
offers from the social service agencies to help him find suitable housing. He instead
chose to live in an extended-stay hotel or in his car. Though he claimed to be a self-
employed construction subcontractor, M.L.F. never provided requested documentation to
his supervising social workers confirming any gainful employment. M.L.F. didn't obtain
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a mental health assessment, even though Blevins had referred him to a clinic. He never
set up individual or family therapy sessions.

The hearing evidence showed M.L.F. had continuing substance abuse issues. He
refused to submit to random UAs that Boldridge and Blevins requested. When first
requested to take a UA, he provided what appeared to be an adulterated sample and
refused to provide a fresh sample. The sample he provided tested positive for
amphetamines. Thereafter, M.L.F. refused every request for a UA. He admitted at trial
that he refused because of "serious stubbornness." As a result of the initial positive test,
M.L.F. was directed to obtain a drug and alcohol evaluation. He never did. When Blevins
suspected M.L.F. of being under the influence of drugs at a visit with J.F., she requested a
UA. M.L.F. reacted hostilely and refused to comply.

At the termination hearing, M.L.F. acknowledged he had been arrested in August
for possession of methamphetamine and later had pleaded guilty. He testified at the
hearing that he anticipated receiving probation at this sentencing. The evidence at the
hearing indicated M.L.F. had been unable to comply with pretrial bond conditions in the
criminal case. As a result of the criminal charges, M.L.F. had been in jail for several
weeks.

According to his case workers, M.L.F. consistently laid blame for his failure to
meet the objectives in the reintegration plan on the purported missteps of others—
consistent with what they observed to be his general attitude in blaming his misfortunes
on people and circumstances beyond his control. During the hearing, M.L.F. told the
district court that he could have completed the reintegration tasks if people had helped
him instead of working against him. He admitted that he regularly questioned the
authority of the case workers and did not comprehend the importance of complying with
their requests.

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On appeal, M.L.F. does not really press an argument that he had complied with the
reintegration tasks at the time of the termination hearing. Rather, he contends he was
permitted only about 10 months to meet those requirements and should have been given
longer. The argument effectively focuses on the component of termination rooted in the
unlikelihood of change in the foreseeable future.

The evidence supports the district court's determination of unfitness under the
enhanced appellate standard in termination cases. M.L.F.'s continuing and unresolved
drug issues manifested by his positive drug test, his repeated avoidance of later drug tests,
his refusal to obtain counseling, and his arrest and conviction for possession of
methamphetamine satisfy the statutory basis of unfitness for drug use rendering a parent
unable to physically or emotionally care for a child. The statutory grounds are, of course,
interconnected. M.L.F. had also neglected J.F. M.L.F. had no steady employment and no
place to live himself, let alone a home suitable for raising a child. During the scheduled
visits with J.F., M.L.F. was distant—sometimes even in a stupor—and more than
occasionally verbally abusive of J.F. or his half-siblings. All of that was highly
inappropriate. We may infer that M.L.F.'s drug problems contributed to his neglectful
behavior—another statutory ground of unfitness.

There is ample evidence the case workers crafted a reasonable reintegration plan
for M.L.F. And he simply ignored the vast majority of what would have been required to
regain custody of J.F. Not to put too fine a point on it, M.L.F. exerted little or no effort to
work on the tasks or to otherwise improve his circumstances so he could parent J.F. This
is not a case in which a parent dutifully tries to reintegrate and simply lacks the capacity
to do so. The evidence, therefore, supports the finding of unfitness because reasonable
efforts of appropriate social service agencies have not effected reintegration of the
family. And the same evidence supports the complementary ground that M.L.F. has failed
to carry out a reasonable reintegration plan. Finally, M.L.F.'s conduct displayed a striking
lack of effort on his part to change his circumstances to accommodate J.F.'s needs.
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Without rehashing the evidence, M.L.F.'s lack of effort to address his drug problem,
establish gainful employment, and to find suitable housing strikingly undercut any
possibility of his reuniting with J.F.

At the hearing, M.L.F. acknowledged he was not then prepared to parent J.F. and
would need three to six months to be in a position to do so. He offered no details as to
how he would accomplish his stated goal. But the record contains significant evidence
conflicting with that ambitious (and self-serving) prediction of success. M.L.F.'s own
conduct during the case to that point strongly indicated a disquieting lack of both an
appreciation of what actually needed to be done and a modicum of initiative to get it
done.

Other evidence undercut M.L.F.'s timetable for success. Rachel Stompoly, J.F.'s
permanency case manager, testified M.L.F. would likely need a year from the resolution
of his criminal case, assuming he were placed on probation, to find suitable housing,
demonstrate a stable income, and resolve the issues that led to J.F. being removed from
the home. She explained that J.F. is engaged in intensive psychotherapy for possible
ADHD and autism—conditions that call for highly competent, dedicated parenting.
Stompoly testified that M.L.F. should participate in both individual therapy to work
through his long absences from J.F. and family therapy with J.F. Strompoly and Blevins
told the district court M.L.F. needed to improve his parenting skills to reintegrate with
J.F. Blevins suggested developing those skills, given J.F.'s needs, could take months.

In gauging the foreseeable future under K.S.A. 2017 Supp. 38-2269, the courts
should use "child time" as the measure. As the Revised Kansas Code for Care of
Children, K.S.A. 2017 Supp. 38-2201 et seq., 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 different perception typically points toward a prompt, permanent
disposition. K.S.A. 2017 Supp. 38-2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176
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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").
Here, that factor takes on particular significance, given J.F.'s comparatively young age
and the distinctly fractured parental relationship between him and M.L.F.

Based on the evidence presented during the hearing, the district court had
sufficient evidence to conclude that M.L.F.'s unfitness was unlikely to change in the
foreseeable future. As we have already pointed out, M.L.F.'s dismal track record weighs
against any substantial likelihood of the sweeping changes necessary for successful
reintegration.

J.F. had been in state custody for about one year at the time of the termination
hearing. Reintegration would take months and more realistically another year, possibly
longer. Even then, the prospects for success were, at the very best, guarded. Especially
given child time, the district court correctly concluded M.L.F. was likely to continue to
be unfit for the foreseeable future. In making that determination, the district court
necessarily concluded M.L.F. had been given sufficient time—10 months—to make real,
substantial progress toward reintegration and had done virtually nothing useful with that
time. We find no fault with the district court's conclusion that the statutory grounds of
unfitness and unlikelihood of change had been met.

Having found unfitness, the district court then had to decide whether termination
of parental rights was "in the best interests" of J.F. K.S.A. 2017 Supp. 38-2269(g)(1). As
directed by K.S.A. 2017 Supp. 38-2269(g)(1), the district court should give "primary
consideration to the physical, mental[,] and emotional health of the child." A district
court makes the best interests determination based on a preponderance of the evidence.
See In re R.S., 50 Kan. App. 2d at 1116. The determination essentially rests in the district
court's sound judicial discretion. 50 Kan. App. 2d at 1115-16. An appellate court reviews
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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); State v. Ward,
292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

On appeal, M.L.F. has not disputed the district court's finding on best interests.
Given the testimony about J.F.'s need for exceptional parenting and the evidence
demonstrating M.L.F.'s lack of even rudimentary parenting skills, the district court acted
well within its discretion in finding J.F.'s best interests were served by termination. The
district court's conclusion was bolstered by the other evidence highlighting M.L.F.'s
largely indifferent attitude toward J.F. during their visits and his overall lack of desire to
take the steps necessary to regain custody of J.F., including his ongoing use of illegal
drugs and the cascading negative impact that had on other aspects of his life.

Affirmed.