In re J.W.

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NOT DESIGNATED FOR PUBLICATION

No. 113,161

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of J.W.,
Date of Birth: 03/05/2010,
A Child Under the Age of 18 Years.


MEMORANDUM OPINION

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed November 6,
2015. Affirmed.

Richard P. Klein, of Olathe, for appellant natural mother.

Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.

Before MALONE, C.J., BRUNS, J., and ROBERT W. FAIRCHILD, District Judge, assigned.

Per Curiam: L.W., the natural mother of J.W. (Mother), appeals the district
court's order terminating her parental rights. For the reasons stated herein, we affirm the
district court's judgment.

FACTS

On March 29, 2012, the State filed a child in need of care (CINC) petition in
support of J.W. The petition was filed after police found Mother unresponsive in an
automobile with her minor child, J.W., in the car. Mother did not appear at the temporary
custody hearing, and the district court found an emergency existed that threatened J.W.'s
safety and that returning J.W. to Mother's care was contrary to J.W.'s welfare. The district
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court stated that it had "serious concerns regarding drug abuse by [M]other." The court
assigned KVC (formally Kaw Valley Center) to J.W.'s case.

On June 29, 2012, after the appointment of counsel, Mother entered a no contest
statement in response to the CINC petition. On August 22, 2012, the district court found
that J.W. was a child in need of care pursuant to K.S.A. 2014 Supp. 38-2202(d)(1)-(3).
The court then found that the disposition plan would be to reintegrate J.W. into Mother's
home.

By October 2012, KVC allowed Mother to have unsupervised day visits with J.W.
from 9 a.m. until 5 p.m. KVC also was considering an aftercare referral. By late October
2012, Mother was having unsupervised, overnight visits with J.W.

In November 2012, however, the reintegration process stalled. Mother failed
several urinalysis examinations (UA), testing positive for PCP, THC, and cocaine. As a
result, Mother was no longer allowed unsupervised visitation and was required to submit
to random UAs. Mother's relationship with her mental health case manager also began to
deteriorate at this time. Communication between Mother and her case manager had
decreased. The case manager became "concerned about [Mother's] engagement . . . [and]
about possible relapse," and she believed Mother was not taking her medication.

KVC continued to require Mother to submit to UAs in the winter and spring of
2013. KVC advised Mother if she completed several clean UAs through its random
testing system, it would increase her visitation to monitored visits. In March 2013, after
Mother achieved three clean UAs, KVC allowed Mother to resume monitored visitation
with J.W. By mid-April 2013, Mother had completed two monitored visits, and her UAs
remained clean. As a result, KVC granted Mother unsupervised day visits with J.W.
During these visits, J.W.'s foster parent would drop J.W. off at Mother's apartment, where
they would spend the day.
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On May 17, 2013, J.W.'s foster parent dropped J.W. at Mother's apartment for a
scheduled unsupervised day visit. When the foster parent returned later that day to pick
J.W. up, Mother and J.W. were not present at Mother's apartment. J.W.'s foster parent
tried to call Mother's cell phone, but Mother's phone was turned off. After being unable to
reach Mother for 20 to 30 minutes, J.W.'s foster parent notified law enforcement. Mother
finally returned approximately 1 hour after J.W.'s scheduled return time, claiming "[J.W.]
had gotten to the clock in her car and changed the time and that her cell phone currently
wasn't working."

In August 2013, KVC suspended Mother's visitation privileges. Despite the
suspension of her visitation, Mother resumed providing urine samples at this time; she
also maintained fairly consistent contact with KVC.

In January 2014, KVC assigned a new case manager to J.W.'s case. Mother
continued to submit to random UAs. Typically, in conjunction with the UAs, Mother and
J.W.'s case manager would discuss the progress of J.W.'s case. Although Mother told the
case manager that she was attending counseling, Mother never provided documentation
of her attendance at either counseling sessions or Narcotics Anonymous meetings.
Between January 2014 and the May 2014 termination hearing, Mother did not have
visitation privileges with J.W.

On May 29, 2014, the district court held a termination hearing. Mother testified on
her own behalf and called her drug counselor as a witness. Mother's drug counselor
explained that Mother attended group therapy twice a week from December 2013 through
April 2014. At that time, Mother was successfully discharged from the program. Mother
also testified about her living and employment situation. Mother stated that she had
maintained full-time employment for over 2 years. Mother also stated that during this
period she maintained a permanent home, appropriate transportation, insurance, and a
driver's license.
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Mother did admit that she was a victim of domestic abuse in the past. In 2010 and
2011 Mother's former boyfriend abused her on multiple occasions, leading to the filing of
criminal charges against him. Later, in 2013, Mother began a relationship with a
coworker, which also involved domestic abuse and criminal charges. Mother denied that
J.W. was ever present during any of domestic abuse incidents.

At the conclusion of the evidence, the district court found Mother was unfit
pursuant to the provisions of K.S.A. 2014 Supp. 38-2269(b)(1) through (b)(4). However,
the district court did not terminate Mother's parental rights at that time. The judge
explained:

"[T]here is some foreseeability that [Mother] can get it together.
. . . .
". . . I think it's powerful testimony that you have maintained a job, hard work
working for McDonald's, that you have a home, that you've maintained sobriety for seven
months, that you—The Court believes that you're trying. I see more hope in you than I do
a lot of people that are similarly situated."

The district judge further noted, "I do believe that your mental health issues have
to be addressed. You just can't go to Johnson County Mental Health for medication. . . .
Whatever is required, you have to follow through on it."

Following the termination hearing, KVC resumed efforts to reintegrate J.W. into
Mother's home. Mother's first visit with J.W. occurred on June 9, 2014. KVC assigned a
new case manager, Kelly Hastings, to J.W.'s case at that time. By the first visit, Mother
had not seen J.W. for nearly an entire year because the therapist advised against
visitation.

On July 7, 2014, Mother attended a worker/parent conference to discuss the case
plan tasks. At the conference, Mother did not provide proof of progress on her case plan
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tasks. Hastings encouraged Mother to engage in mental health services as quickly as
possible because, as had been discussed in the case plan meeting, one of the biggest
missing pieces that KVC was looking for was mental health counseling.

When the visitation with Mother resumed, J.W. began to act out. J.W.'s foster
parent noticed J.W. "was having a very difficult time at school with just an increase in his
level of aggression towards both peers and teachers. And he had flipped some tables, hit
some teachers, and was just, you know, being aggressive towards the other children."

After the July worker/parent conference Hastings observed that the visits between
Mother and J.W. were appropriate. However, Hastings also noted that Mother tried to
bring toys to a visit, despite being told it was prohibited. During a telephone
conversation, Hastings asked Mother whether she had enrolled in a mental health
program. Mother responded that "she really didn't have plans to do so because she didn't
feel like she needed mental health services." Also, during this conversation, Mother told
Hastings that she was pregnant. Hastings stated that since Mother already struggled to
complete the case plan tasks, Hastings was concerned that the responsibility of another
child would make it even more difficult for Mother to complete the case plan.

By the fall of 2014, Mother had moved to Missouri. An interstate compact for
placement of children had not been approved before Mother's relocation. Mother
continued supervised visits, although she cancelled them on a few occasions. Mother
completed a Love and Logic parenting class. Mother did not provide proof of enrollment
in a mental health program to KVC until December 2014. The documents Mother
provided did not include information about the nature and extent of the program.

On December 10, 2014, the district court held a hearing to determine whether it
was likely that Mother's unfitness would change in the foreseeable future. Pauline
Johnson, a licensed master's level clinical social worker and registered nurse, testified for
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the State. Johnson testified that she was J.W.'s counselor and she started seeing J.W. on a
weekly basis beginning in July 2013. Johnson diagnosed J.W. with posttraumatic stress
disorder and oppositional defiant disorder. Johnson explained that she worked with J.W.
about his anger issues and physical aggressiveness towards teachers and peers. Johnson
further stated that J.W. had a hard time controlling his impulses.

Because of J.W.'s behavioral issues, Johnson wanted to limit J.W.'s visitation with
everyone, including his mother. One year before the foreseeability hearing, Johnson
recommended that KVC terminate visitation between J.W. and Mother. Johnson
acknowledged that her decision was solely predicated on J.W.'s behavioral issues and not
based on Mother's actions.

Johnson primarily worked with J.W. on implementing effective coping strategies
to manage his anger and anxiety. Johnson testified that she believed stability was very
important for J.W. Johnson further stated that J.W. needed "consistent caregivers, and,
you know, just knowing what to expect, you know, a permanent place to live just so he
knows what's expected everyday and that's—that would be beneficial for him." Johnson
concluded that J.W.'s aggressive outbursts were exacerbated by his lack of stability and
that when there was a change in his life, his misbehaviors increased.

Following Johnson's recommendation that J.W. not visit with Mother, J.W.
remained in his foster family's home with breaks when he was in respite care. Johnson
testified that the spikes in J.W.'s behavioral issues occurred as a result of transitions
between the homes. Johnson stated that the spikes in behavioral issues were not related to
Mother's actions, because Mother did not have visitation with J.W. during this period.
However, Mother had never sought mental health counseling for J.W. and never
attempted to contact Johnson after she began therapy with J.W. Johnson explained that
once J.W.'s behavioral issues stabilized she would have been open to allowing visitation
with Mother.
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At the conclusion of the evidence, the district court found that Mother's unfitness
was not likely to change in the foreseeable future. The district court recognized Mother's
triumph over drug addiction but concluded that her mental health issues were still
unresolved. The court found that because of these issues Mother would never be able to
properly care for J.W. The district court also found that termination of Mother's parental
rights was in J.W.'s best interests. The district court explained that J.W. needed
permanency and, after 4 years in the system, it was not fair to J.W. to delay establishing
permanency any longer. Mother timely appealed.

ANALYSIS

Mother raises two issues on appeal. First, Mother contends the district court's
finding that the conditions rendering her unfit were unlikely to change in the foreseeable
future was not supported by clear and convincing evidence. More specifically, Mother
claims that she remained drug free, did not exhibit signs of mental health issues, removed
herself from an abusive relationship, and demonstrated an ability to parent by raising
another child.

Second, Mother asserts the district court abused its discretion when it found that
termination of her parental rights was in J.W.'s best interests. Mother argues that since
KVC granted her day-long and overnight visits and she had successfully raised another
child, reintegration was in J.W.'s best interests.

Our Supreme Court has established that an appellate court should apply the
following test in a CINC case: "In short, when an appellate court reviews a trial court's
determination that a child is in need of care, it should consider whether, after review of
all the evidence, viewed in the light most favorable to the State, it is convinced that a
rational factfinder could have found it highly probable, i.e., by clear and convincing
evidence, that the child was a CINC." In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594
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(2008). In making this determination, an appellate court does not reweigh conflicting
evidence, judge the credibility of witnesses, or redetermine questions of fact. 286 Kan. at
705. The same is true for cases involving termination of parental rights.

As the trier of fact, the district court is in the best position to determine the best
interests of a child, and an appellate court will not disturb the district court's judgment in
the absence of an abuse of discretion. In re K.P., 44 Kan. App. 2d 316, 322, 235 P.3d
1255, rev. denied 291 Kan. 911 (2010). Judicial discretion is abused when judicial action
is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the
propriety of the action taken by the trial court, then it cannot be said that the trial court
abused its discretion. See Miller v. Johnson, 295 Kan. 636, Syl. ¶ 12, 289 P.3d 1098
(2012).

K.S.A. 2014 Supp. 38-2269(a) provides that when a child is adjudicated a child in
need of care, the district court may terminate a parent's rights if the moving party
establishes, 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." If the district court
finds the parent unfit, the court must then determine whether termination of parental
rights is in the child's best interests. K.S.A. 2014 Supp. 38-2269(g)(1).

Fitness

The Revised Kansas Code for Care of Children provides a nonexclusive list of
factors the district court must consider when determining whether a parent is unfit.
K.S.A. 2014 Supp. 38-2269(b) and (c). That statute also provides that the existence of
any one of these factors "standing alone may, but does not necessarily, establish grounds
for termination of parental rights." K.S.A. 2014 Supp. 38-2269(f). In Mother's case, the
district court based its finding of unfitness on the following statutory factors:
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 K.S.A. 2014 Supp. 38-2269(b)(1). Mother suffered from 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, or emotional
needs of J.W.;

 K.S.A. 2014 Supp. 38-2269(b)(2). Mother's conduct toward J.W. was of a
physically, emotionally, or sexually cruel or abusive nature;

 K.S.A. 2014 Supp. 38-2269(b)(3). Mother used narcotic or dangerous drugs
of such duration or nature as to render her unable to care for the ongoing physical,
mental, or emotional needs of J.W.; and

 K.S.A. 2014 Supp. 38-2269(b)(4). Mother physically, mentally, or
emotionally abused or neglected or sexually abused J.W.

Mother does not contest the district court's finding of unfitness. An appellant
waives or abandons an issue by not briefing it. State v. Holman, 295 Kan. 116, 125, 284
P.3d 251 (2012).

Foreseeable future

The issue before this court is whether clear and convincing evidence supported the
district court's finding that Mother's unfitness was unlikely to change in the foreseeable
future. See K.S.A. 2014 Supp. 28-2269(a). An appellate court measures the "foreseeable
future" from the child's perspective, considering the child's perception of time. In re R.S.,
50 Kan. App. 2d 1105, 1117, 336 P.3d 903 (2014).

In this case, clear and convincing evidence established Mother's mental health
issues were unlikely to change in the foreseeable future. Although Mother demonstrated
improvement by successfully completing drug rehabilitation and removing herself from
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an abusive relationship, Mother still had unresolved mental health issues. The district
court determined Mother's mental health issues were significant enough, standing alone,
to warrant its foreseeability finding. The district court's conclusion is supported by the
record. Mother was advised on numerous instances that her engagement in a mental
health program was crucial to J.W.'s reintegration in Mother's home. However, Mother
denied her mental health issues and refused to seek treatment. Mother refused to seek
treatment in spite of the district court's specific directive that her enrollment in individual
therapy was a prerequisite to the court determining that she was a fit parent. The district
court found that Mother's last-minute effort to engage in a program in December 2014
did not sufficiently demonstrate that Mother was committed to treating her mental health
for the long term.

The district court did not err in finding by clear and convincing evidence that
Mother's unfitness was unlikely to change in the foreseeable future.

Best interests

The court must now review whether the district court abused its discretion in
determining that termination of Mother's parental rights was in J.W.'s best interests. See
K.S.A. 2014 Supp. 38-2269(g)(1); In re R.S., 50 Kan. App. 2d at 1116. In making such a
determination, a district court must give primary consideration to the physical, mental,
and emotional needs of the child. K.S.A. 2014 Supp. 38-2269(g)(1).

Here, the district court reasonably concluded that terminating Mother's parental
rights was in J.W.'s best interests. J.W. struggled with behavioral issues, often displaying
signs of aggression toward other children and his teachers. For 3 years, J.W.'s case was
pending before the district court. The district court finally decided to terminate Mother's
parental rights. During that time, J.W.'s behavioral issues showed improvement during
periods of stability and permanency. In contrast, J.W.'s behavior seemed to be negatively
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impacted when Mother's visitation resumed in July 2014. Given that after 3 years Mother
was only visiting J.W. for 1-hour supervised visits and that Mother still had not
established a meaningful parental relationship with J.W., the district court was justified in
determining that J.W.’s mental and emotional needs would best be served by terminating
Mother's parental rights

The district court did not abuse its discretion by terminating Mother's parental
rights after finding that such termination was in J.W.'s best interests.

Affirmed.