In re J.M.B.G.

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NOT DESIGNATED FOR PUBLICATION

Nos. 114,910
114,911
114,912
114,914

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of J.M.B.G., Year of Birth 2001, a Male;
A.M.G., Year of Birth 2007, a Female;
C.E.G., Year of Birth 2009, a Male; and
A.S.B.G., Year of Birth 2001, a Male.


MEMORANDUM OPINION


Appeal from Sedgwick District Court; ROBB W. RUMSEY, judge. Opinion filed August 5, 2016.
Affirmed.

Laura E. Poschen, of Ward Law Offices, LLC, of Wichita, for appellant natural father.

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

Before HILL, P.J., PIERRON AND GARDNER, JJ.

Per Curiam: D.G., the natural father of J.M.B.G., A.M.G., C.E.G., and A.S.B.G.,
appeals from the district court's order terminating his parental rights to all four minor
children. He argues that (1) insufficient evidence supports the district court's finding that
his unfitness as a parent was unlikely to change in the foreseeable future and (2) the
district court erred by holding that termination of his parental rights was in the children's
best interests. Finding no error, we affirm.

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Because Father's appeal focuses on the sufficiency of the evidence presented to the
court and the progress he made throughout the proceedings, a detailed recitation of the
facts helps with comprehension of the case. In addition, since this appeal challenges only
the termination of Father's parental rights, we focus on the facts relevant to Father,
including facts regarding Mother only as they are pertinent to the termination of Father's
parental rights.

On May 22, 2013, at approximately 9 a.m., police conducted a welfare check at
the home of D.G. (Father), R.G. (Mother), and their four children: J.M.B.G., born in
2001; A.M.G., born in 2007; C.E.G., born in 2009; and A.S.B.G., born in 2010. When
Mother did not answer repeated knocking at the door and officers saw a toddler standing
inside, the officers entered the home, where they saw soiled diapers and human feces on
the floor, saw rotting food in the refrigerator and on the kitchen counter, saw dirty dishes
and dirty clothing, and smelled rotting food and urine. Mother later described the
conditions as "extremely substandard and filthy." A.S.B.G. and C.E.G. were in the house;
A.S.B.G. was nude except for a wet diaper and C.E.G. was nude. Mother had been in a
back bedroom when police knocked and Father was out of the house returning J.M.B.G.
to school after the school had sent J.M.B.G. home to bathe and change his clothes
because he smelled like urine. A.M.G. was also at school at the time.

Police took A.S.B.G. and C.E.G. into protective custody and took A.S.B.G. to a
hospital, where he was treated for eczema. Social workers who completed a safety
assessment on C.E.G. and A.S.B.G. found both children nonverbal, dirty, and smelling of
urine. The other two children were later taken into protective custody as well. Both
parents were charged with four counts of endangering a child, but they entered into plea
agreements under which they pled guilty to two counts each and received probation.

As a result of these events, the State filed a petition on May 24, 2013, to have the
children adjudicated children in need of care (CINC). The parents waived their rights to
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an evidentiary hearing, did not dispute the allegations in the CINC petition, and pled no
contest to the adjudication. Accordingly, the district court adjudicated the children as
CINC. The district court judge informed the parents: "Get the house cleaned up, that's—I
mean, I'm not going to tell you that's the only order. There's other orders you've got to
comply with. But if you can get that house in good enough shape, I want to send these
kids home while we work some of these orders." The children remained in the custody of
the Kansas Department for Children and Families (DCF).

In the early fall of 2013, the children had monitored visits with the parents, but
there was concern about the home still being cluttered and unkempt, so the visits were
restricted for a few weeks until the parents could meet the minimal standards of
cleanliness. At a permanency hearing in October 2013, the district court approved a
proposed permanency plan with the goal of reintegration, but it ordered the children to
remain in DCF custody after the State expressed its concern that the condition of the
house had not improved since the children had left. The court also ordered Father to
participate in individual therapy, complete a medication assessment, and comply with all
recommendations.

At the next permanency hearing in December 2013, the State acknowledged that
the parents had made significant progress and had cleaned the house, completed a
parenting class, begun individual therapy, and were about to begin family therapy. The
State also noted that C.E.G. had been diagnosed as autistic and J.M.B.G. had a
provisional diagnosis of Asperger's Syndrome, which would pose additional challenges
for Mother and Father if the children returned to live with them. The district court again
found reasonable efforts were being made toward reintegration and ordered the State to
submit a reintegration plan with the intent of "get[ting] these kids back home as soon as
possible."

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In January 2014, Elizabeth Schimmel, a family support worker with Saint Francis
Community Services, began working with the family. Schimmel was concerned about
moving forward with the court-ordered reintegration plan because when she visited the
house in January, it was very cluttered and chaotic, the children seemed out of control,
and Mother and Father were unable to redirect the children. Also, Schimmel felt that
Mother and Father were minimizing a prior report of inappropriate contact between
J.M.B.G. and A.M.G.

For example, at one point, Schimmel went to the home and found J.M.B.G. and
A.M.G. playing together, unsupervised, in a bedroom, despite the fact that they were not
supposed to be left unsupervised and alone. She stated that "the kitchen was cluttered,
there were bags of trash everywhere, there was food all over, not just the table surface but
also the floor. There was concern with the dog just kind of being all over the place. It was
rather chaotic at that point." Within a week or so of her visit to the home, Schimmel and
the case worker decided to resume monitored visits—as opposed to unsupervised
visitation—in order to better assess the situation.

At a permanency hearing on February 14, 2014, the district court accepted
documents from the State that showed that the house was sometimes clean and
sometimes not and there were times the children were not properly monitored. Although
the State informed the court that it still believed that "overall things are better than they
were when this case started," it noted that the family's therapist and case workers still
expressed concern over whether there was adequate structure in the family and whether
the house was consistently clean. The State reported Schimmel's concern about J.M.B.G.
and A.M.G. being alone together and informed the court that they had resumed monitored
visitation.

Case workers had also reported that Mother often slept during the visits and Father
played computer games with J.M.B.G. while the other children played by themselves.
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The State asked the court to again order Father to participate in individual therapy, as it
had discovered that even though the parents had told their case worker that they were on
a waiting list for individual therapy, the therapist's office said the parents had been
discharged because they no longer wanted services. At the State's request, the court
approved a modified reintegration plan that was still moving toward reintegration, but
more slowly than before.

The next month, the court noted at the permanency hearing that evidence showed
the family was complying with the court orders and their therapist had recommended
gradual reintegration. The report also noted that the "home meets minimal standards and
children all seem to have problems." The State agreed with the reports, characterizing the
situation as one in which "for every step forward it seems like there's problems, too." Yet,
the State believed reintegration was still viable. The court agreed, noting the tasks the
parents had completed and telling Father specifically: "[I]t appears that there are—really,
it looks like, sir, you've got about two more things that you need to do"—an assessment
of Father's interaction with the children and a budgeting and nutrition class.

By the end of April 2014, visits were still monitored; Schimmel testified that the
parents struggled with providing appropriate structure during visits and with developing
safety plans. When Mother lost her job in April 2014, Schimmel requested budget sheets
and information about their financial plan to pay bills and utilities going forward. She did
not receive the material.

In June 2014, during a monitored visit, Schimmel saw C.E.G. biting a chunk of
foam out of an exposed portion of the sofa; when neither parent tried to stop him,
Schimmel had to step in, redirect him, and get the foam out of his mouth. That same
month, at the family therapist's request, Schimmel attended in-home family therapy to
help address concerns about a lack of parenting, lack of follow through, and concerns
about C.E.G. and A.S.B.G. acting out toward their parents and siblings. During the visit,
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Schimmel saw the parents take a toy that C.E.G. was playing with and give it to A.S.B.G.
when A.S.B.G. kept trying to take it from C.E.G.

When Schimmel returned during another visit, A.S.B.G. "had bites all over him"
and Mother said she had been watching him play in an ant pile outside. The parents also
told her that they had watched C.E.G. trying to catch and pinch bees in the backyard. On
June 20, C.E.G.'s foster parent reported to Schimmel that when he returned from a visit,
he had slept for several hours and they could not wake him; the foster parent was
concerned C.E.G. had ingested something he shouldn't have. Accordingly, before the
next scheduled visit, Schimmel and the case worker did a surprise walk-through of the
home and found medicine bottles, knives, cleaning supplies, and eye drops accessible to
children.

Schimmel created a safety plan with the parents to ensure that these items would
be locked up out of the children's reach. Schimmel later reported that at a meeting that
same day, A.S.B.G. hit Mother, slapped her in the face, and tried to bite her, and the
children were jumping around, spinning in chairs, and "were just all over the place."
Schimmel believed the parents had no control over the children. Another time, Schimmel
was picking the children up at the end of a visit and saw A.S.B.G. crawling on the floor;
when he began to put dog food into his mouth, Schimmel had to stop him because the
parents were occupied with C.E.G.

Nevertheless, the parents followed the safety plan, so in late July or August
Schimmel and the family therapist decided to allow unsupervised visits and weekend
overnight visits by two of the children at a time. A permanency hearing in September
2014 revealed that the home met "minimum standards," the family was involved in
family therapy, and home visits were about to be expanded to include overnights. The
prosecutor stated: "[I]t's kind of a mixed bag. I think everybody's really trying hard to
make this thing work. I think they're receiving the maximum amount of services they
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possibly could." The guardian ad litem was very concerned about hazardous items being
accessible to the children, and he saw no excuse for the fact that these conditions still
existed at the home. The court found Mother and Father's progress toward reintegration
was adequate and ordered the children to remain in DCF custody and Mother and Father
to comply with their therapists' recommendations.

When weekend visits started, however, the foster parents began reporting that the
children returned dirty, smelling of urine, and unbathed. In October 2014, A.M.G.
returned from a visit and told her foster parents that there were lice at her parents' home.
The following week, C.E.G. was sent home from school because he had lice. In mid-
October, all four children spent the night with Mother and Father. After that weekend, the
foster families reported that J.M.B.G. had returned on Sunday in the same clothes he was
wearing when he was dropped off on Friday, C.E.G. came back in clothing that was
several sizes too small, A.S.B.G. was in clothing several sizes too large, and C.E.G. and
A.S.B.G. smelled like urine. Schimmel and the case worker met with Mother and Father
again to discuss those concerns and continued to encourage them to keep the home clean.

Around that time, an extended family member emailed Schimmel expressing
concerns that the utilities at the home would be shut off in the near future. After obtaining
releases from the parents, Schimmel learned that the water and gas were in danger of
being shut off and, by the time Schimmel met with the parents, the electricity had been
shut off; the parents had not asked for any assistance with the utility bills. This time, the
parents completed the requested budget sheet and followed up getting assistance to have
their utilities turned back on.

To address the concerns from the weekend visit, Schimmel and the parents
developed a plan for better communication between the parents and to determine who
was going to bathe the children at least twice during weekend visits. They also created a
plan to encourage J.M.B.G. to shower and use hygiene products, as well as to keep the
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boys' clothing separate so there would be no confusion when dressing them. For several
weeks following the creation of these plans, the children returned from visits bathed.

The next permanency hearing was on December 5, 2014, and the district court
noted that Father had been inconsistent in attending therapy and noncompliant with his
medication management. In addition, Father was trying to reintegrate two additional
children from a previous relationship, which could mean six children total in the home.
The State noted that the therapists continued to recommend reintegration, but the State
believed that there was "a very high probability of failure . . . if we were to send these
kids home at this point." The guardian ad litem expressed his continuing concern that the
parents could not seem to manage basic concepts like keeping their children clean. The
district court judge noted that it had been 18 months since the case began as a concern
about the home environment and, at this point, the situation was "a little better but not a
lot better, we've got some things improved and some things that are falling away." Thus,
the court held that the reintegration plan was still appropriate, reintegration remained a
viable goal, that extraordinary efforts at integration had been made, and that out-of-home
placement remained most appropriate.

In January 2015, overnight visits continued. A.S.B.G. and C.E.G. lived in the
home during the school week, and J.M.B.G. and A.M.G. stayed in the home from Friday
evenings until Sundays. After 3 weeks of this arrangement, C.E.G.'s school did an intake
with DCF for C.E.G. because of concerns about behaviors that had started since he began
being at home during the week. C.E.G. was urinating on the classroom floor, taking his
pants off in the classroom, and using an iPad inappropriately.

J.M.B.G. and A.M.G. separately told Schimmel that there was not enough food in
the home and that they were not bathing during visits. J.M.B.G. also reported that he was
not getting his medication during visits. After these allegations, Schimmel and the case
worker went to talk with the parents. Around that time, Schimmel learned that the parents
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were being evicted for nonpayment of rent. Schimmel, the case worker, and other staff
involved decided to go back to just overnight weekend visits to see if that helped with the
children's behaviors.

According to Mother's later testimony, in February 2015, she had an interaction
with Father in which he screamed in her face, pushed furniture around, tried to convince
her to admit herself to a "mental asylum," told her that everything that had happened was
her fault, and threatened to get an order of protection against her for himself and the
children. Although he screamed at her, Father did not hit Mother. Mother reported the
incident to the police, and she moved into a shelter on February 9. Shortly thereafter, the
parents were evicted from their home for failure to pay rent.

The next permanency hearing occurred on March 26, 2015. By this time, Mother
and Father were no longer in a relationship, so the court appointed them separate
attorneys. The State informed the court that case workers had changed the case plan goal
to adoption and the State intended to file a motion to terminate. On April 17, 2015, the
State filed a motion for a finding of parental unfitness and termination of parental rights.
The State served Mother and Father with the motion in open court on April 23, 2015.

The termination trial began on August 10, 2015. At the time of trial, Mother and
Father's divorce was final. The State stipulated that in the fall of 2013, Mother and Father
successfully completed a protective parenting class and in November 2013, they both
completed a 4-6 week series of parenting classes through the Kansas Children's Service
League. The parties waived opening arguments and the State called Mother as its first
witness.

Relevant to Father, Mother admitted that for at least 7 years there had been "issues
involving the cleanliness of [their] home." For example, in 2007, while they were living
in Montgomery, Alabama, Mother was in the Air Force and she and Father had an
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agreement that he would take care of the household and the children—only J.M.B.G. and
A.M.G. were born at the time—and she would focus on the military. Yet Mother's
commanding officers had initiated an investigation regarding the condition of their home
and suggested to her that the condition of their home could lead to the removal of the
children. Ultimately, the children were not removed from the home, but the concerns that
caused that investigation were similar to the ones in 2013 that caused the children's
removal—their home was dirty and not suitable for young children. In 2010, Mother was
honorably discharged from the military. She testified that her superior officer told her that
they were afraid she would be deployed and the children would have to be removed from
the home if she was not there to oversee things because Father did not properly clean the
home.

Similarly, in April 2012, someone had called DCF and reported there were
dangerous items accessible to the children, so a DCF worker came to the home. Mother
testified that after the visit, the DCF worker said she did not see anything to be concerned
about at the time. Mother also stated that prior to the day of the police welfare check in
May 2013, the school had on occasions contacted Father to pick J.M.B.G. up and bring
him home due to his hygiene. Mother testified that her understanding was that the
children were not always reasonably clean when they went to school, but she was often at
work when the children got ready and went to school, so she did not personally know
their condition. On other occasions, J.M.B.G. and A.M.G. came home from school in
different clothes than they went to school wearing because the clothes they had arrived in
were too dirty.

Mother conceded that the condition of their home in May 2013 when the children
were removed warranted their removal. She acknowledged that there was food sitting out
in the kitchen that could have been rotting and that C.E.G. was nude when officers
arrived. According to Mother, C.E.G. "was going through a stripping phase." Mother also
testified that Father had been diagnosed with bipolar disorder and "possibly
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schizophrenia." She did not think Father could adapt his parenting style and behaviors to
best suit J.M.B.G.'s needs.

After Mother's testimony, the State called Father. The court admitted into evidence
and took judicial notice of a petition for a protection from stalking order filed by Mother
against Father. The State also admitted into evidence a certified copy of the criminal case
file involving Father. Father testified that, at the time of trial, he lived at two places,
working on the plumbing at his mother's home and staying there sometimes, but also
staying with friends at another location as well. He stated that he was looking for
permanent housing, but he was having difficulty obtaining housing assistance because of
the prior eviction. Father suggested that he could reintegrate with the children at his
mother's home, but the "plumbing situation would make that difficult." In May 2015,
Father had relinquished his parental rights to two teenage girls from a previous
relationship.

At the time of the trial, Father was taking medication for migraines and another
medication—an antidepressant—"[t]o even out the effects of the" migraine medication.
He had not worked since 2002, and he received Social Security Disability Income
because of a disability caused by a traumatic brain injury. Father was able to work part
time, but he became agitated and panicky if he was overly stressed. He explained that he
would panic if he had to do "twenty different things and [was] doing it for an exceedingly
[prolonged] amount of time." Father felt that his disability might partially explain the
condition of the home and the children's lack of hygiene.

In addition, Father stated that he had received several different mental health
diagnoses from several different psychiatric practitioners. He admitted to sometimes
feeling a lack of motivation and leaving things undone and at other times feeling euphoric
and going days without sleep. He said his most recent episode was in March 2015, that he
had been diagnosed by several therapists and psychiatrists with bipolar disorder, and that
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his earliest diagnosis was schizophrenia but that diagnosis had later changed. He did not
believe, however, that his mental health conditions were a contributing factor to the
condition of the home or the children's hygiene issues.

As Father understood it, in May 2013, he and Mother were both responsible for
household chores. Mother worked full-time and Father was not working outside the
home. When asked if he did not have enough time to keep the house and children clean,
Father explained that the situation was one that "happened in a short span of time right
before they had shown up" and that before May 2013, the house had been clean. Yet
Father then testified that the problems with the conditions of the home went back to
before 2007. He stated that in 2005 their landlord had complained about the smell in their
house. They later learned a person who lived in the apartment below them had died,
apparently causing the smell. Father claimed that he and Mother had consistently
provided an appropriate environment for their children that was not dirty; he considered it
"cluttered."

Father testified that he had completed two evaluations in July 2013 that had
resulted in a recommendation that he attend individual therapy. He began individual
therapy at the Mental Health Association (MHA) and "tried to attend consistently," but
hekept getting juggled from therapist to therapist as therapists left MHA. Father testified
that he attended regularly but missed three appointments because the therapist he had
been seeing "had left to go pursue school and did not let them know." MHA then dropped
him from services but when it figured out what had happened, he resumed therapy.

Father disagreed with the State's assertion that he had cancelled or simply not
shown up to 25 of 33 scheduled appointments. He insisted that he had switched to Family
Consultation Services (FCS) in July or August 2014 because his MHA therapists kept
changing the dates of his appointments. He believed that any missed appointments at
MHA probably occurred while he was receiving services from FCS, and he asserted that
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he had been consistently receiving services since August 2014. Father testified that at the
time of trial, he was still attending therapy at FCS and was continuing medicine
management through a medical clinic. He had noticed his agitation level was lower and
his health had significantly improved from the time when his children were removed.
Father stated that he was better able to determine which things he needed to worry about
and which he did not. He also stated that his mental health providers approved of his
decision to divorce Mother.

Father also explained his understanding of the apparent history, prior to this case,
of a lack of hygiene with his children. Regarding the school's contentions prior to May
2013 that the children had come to school dirty, Father claimed that on the morning the
police removed the children, J.M.B.G. did not smell like urine when he left for school.
He also explained that the reason the children had occasionally been sent home from
school in different clothes was because they would have accidents at school and wet their
pants. Father recalled an incident on May 13 when the school called to ask permission to
wash A.M.G.'s coat; Father said the coat "probably reeked" because A.M.G. left her coat
on the loveseat, which was a place C.E.G. hid dirty diapers when he took them off.

Father also explained that the school gave A.M.G. a new shirt to wear on one
occasion because the school mistakenly insisted her shirt was dirty and once because a
boy at school had "messed up her shirt." He admitted that the school had brushed
A.M.G.'s hair because it was matted, but he stated that "[t]hey did not like how the way
her hair was," and insisted that it had "nothing to do with hygiene." Regarding the April
2012 interaction with DCF about which Mother had testified, Father testified that he was
not at the house at that time. Then he testified that he probably was the person who met
with DCF, but he did not recall. He also claimed to be unaware that DCF had investigated
his home at that time. Father testified that he might not remember because of his memory
problems, but that he usually only had trouble remembering "insignificant things," like
birthdays, sending an email, schedules, daily activities, etc.
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Regarding the proceedings of the instant case, Father stated that his understanding
was that the four children at issue here were removed from his home because of evidence
that the house was dirty and unsafe, but Father disagreed with the characterization of his
house as unsafe; he stated it was somewhat dirty and that it was "in disarray." Father also
disputed police officers' statements that they had found dirty diapers on the floor and
rotting food, stating that it was not as bad as the police reports described. He attributed
the foul smell reported to a problem he fixed immediately after the children were
removed by removing the carpet in two areas of the house, which had become moldy
underneath due to moisture from rain. Father testified that at the time the children were
removed, he had not noticed any behavioral or developmental concerns with J.M.B.G. or
A.M.G. Father acknowledged that C.E.G. took off his clothes and diaper and would eat
small pieces of paper or other small things and A.S.B.G. "had a speech problem," but
Father thought he would grow out of it, as Father had when he was a child. None of the
children were receiving services for behavioral or developmental issues.

Father believed that the reason the overnight unsupervised visits with the children
stopped was because "they had an issue with the bills" and because someone alleged that
J.M.B.G. was "inappropriate" with A.M.G. Father was unsure, though, because there
were at least two separate occasions on which the visitations became more restricted. In
October 2014, Father believed that the visits had become more restricted because their
electricity had been shut off. Visits were also restricted when Father and Mother were
being evicted from their home and because of concerns that the children were not
properly receiving their medication and were not properly fed during visits. Father said
that there was always sufficient food, but sometimes the children did not want to eat it
because, for example, he cooked vegetables that A.M.G. did not want to eat. On cross-
examination, he testified that he did not believe the second restriction on visitation was
because of cleanliness, but that it was because of concerns that the children were not
getting their medication. However, he did not recall the exact reason.
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Regarding the incident that prompted Mother to move out of the home in February
2015, Father stated that he remembered her leaving and remembered moving some
furniture to clean under it, but did not recall getting in Mother's face or shaking furniture.
Father asserted that he did not threaten to put Mother into a mental asylum; he asked her
to go voluntarily because "she was acting pretty strange about things." According to
Father, there was no domestic violence in their relationship. Father then admitted,
however, that in February 2015, he had taken out a protection from abuse order against
Mother in support of which he had alleged that while she was drunk and on medication,
Mother had threatened to kick him, had hit and scratched him, had beaten him with a
paddle, and had slapped one of their sons.

Looking to the future, Father testified that he could better provide for the children
as a single parent than he did when he was with Mother because he had "lots of friends
who are willing to help." Father explained that he could also do better because no one
would be there to undo the cleaning he had done—the example he gave was that Mother
would not be there to throw the laundry he had washed onto the bed instead of putting it
away. He would depend on himself to do 100 percent of the work rather than relying on
Mother to take care of part of it. Father believed it was best for the children to be taken
care of by family.

When the termination trial resumed on August 11, 2015, the State called
Schimmel, who testified generally about her work history and job duties. Schimmel
explained her interaction with the family as related above and also shared her concern at
seeing the parents using electronics to "babysit" the children instead of interacting with
the children themselves. She testified that during several visits she saw Mother sleeping,
Father on a laptop computer, A.M.G. "off playing, doing her own thing," J.M.B.G.
playing video games, and the youngest two children either watching television or a hand-
held electronic device. In addition, when Schimmel arrived at the home, Father was often
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trying to clean up or was on his laptop; she never saw him reading or playing with the
children.

Schimmel further testified that Father appeared "extremely overwhelmed with the
children." She explained that although structure is important for all children, it is
especially important for these children because of the autism and Asperger's diagnoses,
which require structure even more to succeed. As stated above, C.E.G. had been
diagnosed with autism and J.M.B.G. had a provisional diagnosis of Asperger's; Schimmel
also testified that A.S.B.G. was on a waiting list at KU Medical Center to rule out an
autism diagnosis.

Schimmel disputed Father's testimony about his individual therapy attendance. Her
records showed that he was not consistent in attending therapy after his intake with
MHA: between July 2013 and February 2014, Father attended only nine appointments.
Schimmel further informed the court that at the time of the trial, Father was having
weekly monitored visits at Schimmel's office. She felt Father was doing "a decent job"
during visits, but she was disappointed when Father provided electronics for the children
to play with rather than interacting with them; there were also several visits during which
he was dozing off.

In conclusion, Schimmel testified that she did not believe either parent was
presently fit to parent the children. She felt that neither had the patience and dedication
that parenting would require. Schimmel identified mental health as "a huge, huge factor
in why neither of them would be presently able to manage all four children in the home."
When asked if there was a likelihood that that would change in the foreseeable future,
Schimmel replied that she believed they could make the change for the short term, but
that they did not have the ability to sustain it in the long term. In addition, Schimmel
could not identify any additional services her agency could try to help reintegrate the
family in this case.
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Schimmel also emphasized that the children needed permanency. J.M.B.G. had
become increasingly insecure and unstable over the 6 months prior to trial, wanting to
know where his home would be. C.E.G. and A.S.B.G. had improved in "leaps and
bounds" in foster care, going from nonverbal, non-potty trained, physically aggressive
children to children who ate dinner at a table and greeted Schimmel by name when they
saw her. Schimmel felt termination was appropriate at the time of the trial and that it
would be in the best interests of the children. Schimmel felt it would be fair to say that
the parents had not learned from the prior incidents and tended to repeat their patterns.
She believed that, over the long term, it would be "more of the same."

Regarding their ability to be effective single parents, Schimmel testified that due
to the extenuating needs of these particular children as well as the issues the parents
themselves had, she did not think that single parenting could be successful. On cross-
examination, Schimmel expressly disagreed with the question whether, with the parents
being divorced and having two separate households, she "believe[d] that there is hope
that this dysfunctional partnership wouldn't result in . . . a messy house."

The State also presented testimony from the children's foster parents about their
progress in the foster homes and from Amy Otey, the supervisor social worker at Saint
Francis. Like Schimmel, Otey testified about her involvement in the case and her
conclusion that reintegration was no longer viable because the parents showed the same
pattern of moving forward and then falling back. Otey also did not see individual changes
that would make a difference in the parents' behavior as single parents. Otey felt it would
harm the children to let the parents try one more time as single parents because the
children had already waited a long time for permanency. She believed that termination of
parental rights was in the best interests of the children. After Otey's testimony, the State
rested.

18

Father testified on his own behalf and admitted into evidence a letter from the City
of Wichita Public Housing regarding his progress on obtaining housing. He believed he
had a 60 percent chance of receiving independent housing. On the last day of the
termination trial—August 12, 2015—Mother relinquished her parental rights to the
children.

After accepting Mother's relinquishment, the court heard closing arguments. Then,
on the record, the court held that the State had established by clear and convincing
evidence that Father was unfit and that his unfitness was unlikely to change in the
foreseeable future. Moreover, the court held that Father's mental illness or deficiency was
of such a duration and nature as to render him unable to meet children's the ongoing
physical, mental, and emotional needs.

The court recounted the long history of social service involvement with the family
based on unclean living conditions, even prior to the incident that initiated the current
proceedings. The court found the State's efforts to reintegrate the family had been beyond
reasonable. In addition, the court held that there had been physical and emotionally
abusive conduct toward the children and that their medical needs had not been met. The
reasonable efforts the State made had failed to succeed, and Father had failed to adjust his
circumstances, conduct, and conditions. Father also failed to carry out the court-approved
plan toward reintegrating the children into the home. The court specifically held: "[I]n
particular this father has failed in caring for his children."

Because (1) the children had been in out-of-home placement for over 2 years, (2)
Father had failed to carry out the court-approved plan, and (3) there was a substantial
probability that he would not do so in the near future, the court found that the
presumption of unfitness applied which Father had not rebutted. Even more specifically,
the district court judge stated:

19

"[J]ust so it's clear, father currently is not fit. He has no place to live. He is financially
incapable of caring for the children. But quite frankly, even not considering the financial
ability of the father, he has no way to care for these children. He is currently living in a
house, trying to fix up another house. He's living with friends, trying to fix up another
house. We're two plus years, two years and three months almost into this case and we're
no closer. In fact, we're farther away from reintegrating these kids into the parents' home
than we were the first day that they were removed from the parents' home.

Accordingly, the court held that the children's physical, mental, and emotional
needs would be best served by terminating Father's parental rights. On October 28, 2015,
the district court filed its journal entry showing Mother's relinquishment of her parental
rights and finding Father unfit and ordering his parental rights terminated. Father timely
appealed.

As stated above, Father first argues that there was insufficient evidence to prove
that the conduct or condition that rendered him unfit was unlikely to change in the
foreseeable future. In essence, he claims that because there was no evidence of his ability
to parent as a single parent, the State could not show that his status as a single parent
would not cure his unfitness in the foreseeable future. Second, Father argues that
termination was not in the children's best interests. In response, the State asserts that the
finding of unfitness was supported by clear and convincing evidence and the termination
was in the best interests of the children.

Likelihood that Father's Parental Fitness Would Change in the Foreseeable Future

"Once [a] child has been adjudicated a child in need of care, 'the 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. [2015] Supp. 38-2269(a)." In re N.A.C., 299 Kan. 1100, 1115,
329 P.3d 458 (2014).
20

On appeal, we uphold a termination of parental rights if, after reviewing all of the
evidence in the light most favorable to the prevailing party, the district court's factual
findings are highly probable, i.e., clear and convincing evidence supports the findings. In
re Adoption of Baby Girl P., 291 Kan. 424, 430, 242 P.3d 1168 (2010). We "do not
weigh conflicting evidence, pass on the credibility of witnesses, or redetermine factual
questions. [Citation omitted.]" 291 Kan. at 430-31.

Father asserts that insufficient evidence shows that his unfitness would not change
in the foreseeable future, considering the fact that he and Mother were divorced at the
time of the termination trial and Father had not yet had the chance to show his ability to
be an effective single parent. As Father points out, the reintegration efforts in this case
occurred prior to his separation and divorce from Mother.

Father also notes in his testimony at the termination trial that he was seeking
suitable housing for himself and the children and that he believed he would parent better
as a single parent than he had when he and Mother were married. He testified about the
benefits he felt from his ongoing participation in individual therapy and that he felt that
his mental health had significantly improved. In addition, Father highlights Schimmel's
testimony that "for the most part, most of the time in my interactions with him, he has—
he does a decent job." We note, however, that this statement was in response to a
question asking Schimmel for her opinion on Father's "ability for sustained attention," not
his parenting ability.

Finally, Father points out that one of the district court's bases for finding unfitness
was K.S.A. 2015 Supp. 38-2271(a)(6), which allows for a presumption of unfitness if (1)
the child has been in a court-ordered, out-of-home placement for 2 years or more; (2) the
parent has failed to carry out a court-approved, reasonable reintegration plan; and (3)
there is a substantial probability that the parent will not do so in the near future. Father
contends that when the State argued this presumption in its closing argument, it referred
21

to "the parents," as did the district court in its ruling from the bench, which in part
depended on this presumption. The section of the transcript to which Father cites in
support shows the State arguing a presumption of unfitness under K.S.A. 2015 Supp. 38-
2271(a)(6), but it does not reflect the State referring to both parents. To the contrary, the
State argued:

"These children have been out of the home for more than two years. There have
been court orders in place since the temporary custody hearing back on May 28th, 2013,
for them to try to work. I think the plan contained in those court orders and the plan that
Saint Francis has worked have been very reasonable. There's no question that [Father]
has failed to carry out those plans, and I do not believe there's anything to believe the
future is going to be any different." (Emphasis added.)

Similarly, although the district court judge referred to both parents throughout his
oral ruling, he clarified at the end of the trial: "As I've addressed this, I've said parents. In
this case I directed it only towards father, and it should be—it should be in the journal
entry only as to father." Therefore, to the extent that Father is arguing that the district
court improperly based its finding of unfitness on Mother's failure to carry out the
reintegration plan, his argument fails.

Moreover, considering all the evidence in the light most favorable to the State,
even taking into account the testimony Father underscores in his appellate brief, Father's
argument is unpersuasive. Although Father testified that he believed he would be a better
parent since he was no longer trying to co parent with Mother, the State presented
evidence to the contrary. Specifically, Mother testified that she did not think Father could
adapt his parenting style to best suit J.M.B.G.'s needs. Schimmel testified that she did not
think either parent could make the long term changes necessary to be fit to parent these
children. She also testified that during visits that occurred at her office just prior to the
termination trial, Father would at times provide electronics for the children to play with
rather than interacting with them himself and he would sometimes doze off.
22

Even more specifically, Schimmel testified explicitly that she did not believe that
single parenting would be successful because of the needs of these particular children and
the issues of these particular parents. When asked whether she believed there was hope
that the parents' divorce and resulting separate households would mean in a cleaner home
for the children, Schimmel said no. Similarly, Otey testified that she had not seen
changes in the parents as individuals which would make a difference in their behavior as
single parents. In fact, Otey felt it would harm the children to let the parents try single
parenting.

Considering all of the evidence in the light most favorable to the State, the district
court's finding that Father's unfitness was unlikely to change in the foreseeable future was
highly probable—that is, it was supported by clear and convincing evidence. Thus,
Father's argument on this point fails.

Best Interests of the Children

Father's second contention is that the district court erred in holding that
termination of his parental rights was in the best interests of the children. We review a
district court's determination that termination is in a child's best interest for abuse of
discretion. See In re R.S., 50 Kan. App. 2d 1105, 1113-16, 336 P.3d 903 (2014). A
district court abuses its discretion when it bases a decision on a legal or factual error or
when it takes an action with which no reasonable person would agree. 50 Kan. App. 2d at
1116.

K.S.A. 2015 Supp. 38-2269(g)(1) provides that, in making the best-interests
determination, "the court shall give primary consideration to the physical, mental and
emotional health of the child. If the physical, mental or emotional needs of the child
would best be served by termination of parental rights, the court shall so order."
23

"In so doing, the court must weigh the benefits of permanency for the children without
the presence of their parent against the continued presence of the parent and the attendant
issues created for the children's lives. In making such a determination, we believe the
court must consider the nature and strength of the relationships between children and
parent and the trauma that may be caused to the children by termination, weighing these
considerations against a further delay in permanency for the children." In re K.R., 43
Kan. App. 2d 891, 904, 233 P.3d 746 (2010).

Father focuses on the strength of the bond between him and his children, noting
especially that he was still participating in visitation with his children during the
termination trial and that the district court judge, after terminating his rights, ordered that
he be allowed a final visit with the children. No one disputes that there was a bond
between Father and his children or that Father loved his children. In fact, the State
acknowledged that bond during closing argument. Father, however, argues that the
strength of this bond, in light of his efforts to obtain housing and reintegrate with his
family, means that terminating his parental rights was not in his children's best interests.

Perhaps to highlight the seriousness of an order terminating parental rights, Father
cites to In re M.M., 19 Kan. App. 2d 600, 605-09, 873 P.2d 1371 (1994), in which this
court reversed the termination of parental rights after holding: (1) The mother in that
case had not substantially failed to comply with court orders and (2) the only evidence of
the mother's failure to adjust her circumstances and conduct to meet her child's needs
were allegations of two potential violations of court orders. Father emphasizes the In re
M.M. court's conclusion that "when weighing the consequences of [the mother's] loss of
parental rights and the traumatic effect [a termination] order would have on M.M., . . .
this evidence is not sufficient." 19 Kan. App. 2d at 606. The court held that to support a
termination of parental rights, competent evidence must show a substantial failure to
comply with a reintegration plan or court order. 19 Kan. App. 2d at 608.

24

In re M.M.'s relevance here is questionable. First, the controlling statutes in In re
M.M. were a prior version of the statutes that control here and the portions in issue did
not address the best-interests considerations. Second, it appears that the challenge in In re
M.M. was to the finding of parental unfitness, not to a best-interests determination. See
19 Kan. App. 2d at 603. Third, unlike the mother in In re M.M., Father had 2 years' worth
of continuing difficulty complying with the court's orders and the reintegration plan.
Moreover, Father does not explicitly explain the importance of In re M.M. But to the
extent that In re M.M. acknowledges the serious impact of terminating parental rights,
that is still of utmost importance in current termination caselaw.

Kansas appellate courts have long recognized the value of a bond between a parent
and his or her child. See, e.g., State ex rel., Secretary of SRS v. Bohrer, 286 Kan. 898,
915, 189 P.3d 1157 (2008) ("'[T]he termination of parental rights is an extremely serious
matter.'"); In re R.S., 50 Kan. App. 2d at 1106 (stating same sentiment); In re Adoption of
I.H.H.-L., 45 Kan. App. 2d 684, 689, 251 P.3d 651 ("The termination of parental rights in
Kansas is a serious and permanent legal step that severs natural parental bonds forever.")
rev. denied 292 Kan. 964 (2011). Nevertheless, even keeping in mind the gravity of the
situation, the district court here did not abuse its discretion in finding that termination of
Father's parental rights was in the children's best interests. Father fails to take into
consideration the factors we must consider in addition to the relationship between parent
and child: any detriment to the physical, mental, or emotional health of a child if parental
rights are not terminated as well as the benefits of permanency. See K.S.A. 2015 Supp.
38-2269(g)(1); In re K.R., 43 Kan. App. 2d at 904.

Schimmel explicitly testified that the children needed permanency and that
termination of parental rights and the resulting permanency would be in the children's
best interests. J.M.B.G. had become increasingly insecure over the 6 months prior to the
trial, wanting to know where his home would be. With regards to the other children,
Schimmel explained that they needed stability and structure and not to remain unsure of
25

where their home would be. Otey also testified that the children had waited long enough
for permanency and "they need to have solid ground under their feet that they can trust."

The children's foster parents testified about the children's vast behavioral
improvements since they had left Mother and Father's home and even since the overnight
and extended visits with Mother and Father ceased. For example, by the time of the
termination trial, after being with the foster family for a little over 1 year, J.M.B.G. no
longer bit other people and he put away his own clothing, His foster mother testified that
since the overnight visits with his parents ended, J.M.B.G. was not so angry and had
"gotten a lot better."

Similarly, A.M.G.'s foster mother, who had A.M.G. in her home for over 2 years,
stated that while A.M.G. was still having visits at the family home, there were incidents
at school in which A.M.G. was physically aggressive with other children. C.E.G. and
A.S.B.G.'s foster mother testified that, since being with her, C.E.G. had "really
flourished," but during the time when the children were going on overnight visits to the
parents' home, C.E.G. regressed back to behaviors of taking off all of his clothes, biting
other people, being aggressive, and being overly clingy. A.S.B.G. would often come back
from visits more aggressive and scratch other people. At the time of the termination trial,
however, A.S.B.G. and C.E.G.'s foster mother stated they were "doing fabulous[ly]."

In light of all of this testimony and the fact that the proceedings had been ongoing
for more than 2 years, the district court did not abuse its discretion in finding that
termination of Father's parental rights and the resulting permanency that termination
would afford the children was in the children's best interests.

Affirmed.