In re J.H.

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NOT DESIGNATED FOR PUBLICATION

Nos. 119,651
119,652
119,653

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of
J.H., E.H., and M.H.,
Minor Children.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed January 11, 2019.
Affirmed.

Jennifer K. Wika, of Jennifer K. Wika, Attorney at Law, of Lawrence, for appellant natural
mother.

Kate Duncan Butler, assistant district attorney, and Charles E. Branson, district attorney, for
appellee.

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

PER CURIAM: Mother appeals the termination of her parental rights to her three
children. She argues there was insufficient clear and convincing evidence to support
termination of her parental rights or that it was in the best interest of the children to
terminate her parental rights. After reviewing the entire record, we disagree and affirm the
district court.

The district court may terminate a parent's rights when the State as the party seeking
to terminate those rights has shown (1) the parent is unfit and will likely remain so for the
foreseeable future and (2) it is in the best interests of the child to terminate the parent's
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rights. See K.S.A. 2017 Supp. 38-2269(a), (g)(1). Further, a parent's rights may be
terminated only when the evidence supporting termination is especially strong; under the
statute, the evidence must be "clear and convincing." K.S.A. 2017 Supp. 38-2269(a). To be
clear and convincing, the facts must be highly probable. In re B.D.-Y., 286 Kan. 686, 705,
187 P.3d 594 (2008); In re D.H., 54 Kan. App. 2d 486, 489, 401 P.3d 163, rev. denied 307
Kan. 987 (2017).

We review a district court's decision to terminate a parent's rights by asking
whether a rational fact-finder could have found it highly probable the parent's rights
should be terminated. In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014).
Because the district court—which is charged with finding the facts—terminated Mother's
parental rights, we will review the evidence in the light most favorable to that
determination. 50 Kan. App. 2d at 1170; In re K.W., 45 Kan. App. 2d 353, Syl. ¶ 1, 246
P.3d 1021 (2011). Further, in reviewing the district court's decision, we may not reweigh
the evidence, judge the credibility of witnesses, or redetermine factual questions. In re
B.D.Y., 286 Kan. at 705; In re M.H., 50 Kan. App. 2d at 1170.

The district court may base its finding of unfitness on one of several bases outlined
by the Legislature. See K.S.A. 2017 Supp. 38-2269(a)-(c). If supported by clear and
convincing evidence, a single statutory basis for unfitness can support terminating a
parent's rights, though courts should consider all applicable factors. K.S.A. 2017 Supp.
38-2269(f); In re M.H., 50 Kan. App. 2d at 1170.

Here, the district court relied on four statutory factors: First, Mother had shown a lack
of effort to adjust her circumstances, conduct, and condition to meet the children's
needs, K.S.A. 2017 Supp. 38-2269(b)(8); next, Mother's conduct was mentally and
emotionally abusive for the children to witness, K.S.A. 2017 Supp. 38-2269(b)(2) and (4);
and finally, reasonable efforts by public and private agencies to get the family back together
had failed, K.S.A. 2017 Supp. 38-2269(b)(7).
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The record includes clear and convincing evidence to support the district court's
finding Mother had shown a lack of effort to adjust her circumstances, conduct, and
condition to meet the children's needs. See K.S.A. 2017 Supp. 38-2269(b)(8). Mother
failed to shield the children from Father's abusive behavior, a fact Mother acknowledged.
The record also reflects the children had lost confidence in their Mother to change to
protect them from Father. She also failed to provide stable housing and at the time of the
termination hearing, she was living in a motel room in Lawrence with a friend after moving
back from Oklahoma while the case was pending. Additionally, Mother failed to maintain
stable employment or even provide proof of employment.

The district court also found Mother's conduct was emotionally abusive and
neglectful, K.S.A. 2017 Supp. 38-2269(b)(2) and (4). Here, the emotional abuse and
neglect the children suffered was a direct result of Mother not protecting them from
Father's abusive behavior. As mentioned, Mother acknowledged the emotional trauma the
children suffered as a result of her not leaving Father. The psychologist, Dr. Jean Dirks
told the court, "[T]he girls were traumatized by seeing their mother, whom they really
loved, being beat up by their father and their mother said it's okay." Additionally, Dirks
was concerned about Mother's poor judgment for herself and the children. Indeed, we
have held that a "parent's failure to protect their child from abuse constitutes
'conduct toward a child of [an] emotionally . . . cruel or abusive nature.'" In re S.D., 41
Kan. App. 2d 780, 789, 204 P.3d 1182 (2009) (quoting K.S.A. 2008 Supp. 38-
2269[b][2]). Thus, we find clear and convincing evidence supports the district court's
finding Mother's conduct was emotionally abusive and neglectful under K.S.A. 2017
Supp. 38-2269(b)(2) and (4).

Despite the evidence supporting the district court's findings of unfitness, Mother
argues the court should not have terminated her parental rights because she substantially
complied with the reintegration plan. She supports her position by citing to In re A.M., No.
116,391, 2017 WL 2022704, at *6 (Kan. App. 2017) (unpublished opinion), in which we
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reversed the termination of the father's parental rights. Mother essentially argues that, like
the father in A.M., she couldn't be considered "chronically unfit" because she complied
with the reintegration plan.

It is true Mother complied with many aspects of her case plan and the district court
acknowledged her partial compliance. But in A.M., we set aside the district court's ruling
because the father's behavior "was neither negligent nor malicious [and h]e had no
pernicious conditions or characteristics that rendered him statutorily unfit." 2017 WL
2022704, at *6. That simply is not the case here. There is evidence Mother's behavior was
negligent—she had a history of returning to Father despite his abusive behavior. Her
pattern is also a "pernicious condition" rendering Mother statutorily unfit, since staying
with Father causes the children to suffer harm and more abuse.

Even if Mother's substantial compliance with the case plan was dispositive, we do
not reweigh the evidence on appeal. We must take the evidence in the light most
favorable to the State. In re B.D.-Y., 286 Kan. at 705; In re M.H., 50 Kan. App. 2d at
1170. Under these standards, clear and convincing evidence supports the district court's
unfitness finding based on all of the factors the court cited. Although there is no dispute
Mother did complete some components of the reintegration plan, we are not tasked with
reevaluating the evidence. See In re J.D.D., 21 Kan. App. 2d 871, 875-76, 908 P.2d 633
(1995) (citing McKissick v. Frye, 255 Kan. 566, Syl. ¶ 8, 876 P.2d 1371 [1994]).

The record reflects, among other issues, Mother failed to complete the court
ordered drug treatment program. She failed to complete the victim-based batterer's
intervention treatment program and failed to provide stable housing and employment as
the court ordered. Thus, when viewed in the light most favorable to the State, and giving
primary consideration to the physical, mental, and emotional needs of Mother's three
children, we are convinced there was substantial competent evidence to support the
district court's finding under K.S.A. 2017 Supp. 38-2269(b)(7) that reasonable efforts to
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restore the family had failed. The district court's decision to terminate Mother's parental
rights was based upon clear and convincing evidence.

The district court also made two other findings pertaining to its overall findings of
unfitness. First, it found it was "highly unlikely that [Mother] could meet the emotional
and physical needs of any of the children within the foreseeable future." See K.S.A. 2017
Supp. 38-2269(a). It also found terminating Mother's parental rights would serve the best
interests of her children, explaining: "Returning these children to the custody and care of
[Mother] would be extremely emotionally detrimental." See In re Interest of D.H., 54
Kan. App. 2d at 488. Mother, however, does not brief her challenge to either of these
findings on appeal, so we consider those issues waived. See In re Marriage of Williams,
307 Kan. 960, 977, 417 P.3d 1033 (2018) (issues not briefed are deemed waived and
abandoned).

In summary, considering all the evidence in the record before us, we find clear and
convincing evidence supports a rational fact-finder's conclusion it is highly probable
Mother was unfit by reason of conduct or condition rendering her unable to properly care
for her children. Mother does not brief her challenge to the court's findings that her conduct
or condition was unlikely to change in the foreseeable future and that termination was in
her children's best interests.

Affirmed.