In re M.G.

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NOT DESIGNATED FOR PUBLICATION

No. 118,650


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

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


MEMORANDUM OPINION

Appeal from Johnson District Court; KATHLEEN SLOAN, judge. Opinion filed August 10, 2018.
Affirmed.

Christian Webb, of Olathe, for appellant.

Jacob M. Gontesky, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.

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

PER CURIAM: E.G. (Father), the natural father of M.G., appeals the trial court's
termination of his parental rights after concluding that his unfitness was unlikely to
change in the foreseeable future. On appeal, Father maintains that there was insufficient
evidence for the trial court to terminate his parental rights. Father also argues that he had
made progress sufficient to warrant more time to reintegrate with his child. Based on
clear and convincing evidence, we determine that the trial court properly concluded that
Father's conduct or condition was unlikely to change in the foreseeable future and that it
was in the child's best interests to terminate Father's parental rights. Accordingly, we
affirm.


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Factual and Procedural Background

M.G. was born on April 29, 2014. Father is M.G.'s natural father. M.G.'s natural
mother, K.R., relinquished her rights to parent M.G. in February 2016, and K.R.'s
parental rights are not at issue in this appeal.

When M.G. was only one month old, she was temporarily placed in the custody of
the State of Kansas. On June 3, 2014, M.G. was placed with her foster parents, Patricia
and Kirby W. The State initiated M.G.'s temporary placement because of concerns with
K.R.'s mental health and with her drug use during pregnancy. In addition, the State had
concerns about Father's criminal convictions.

In July 2014, Father conceded to the allegations against him in a child in need of
care (CINC) petition. As a result, the trial court adjudicated M.G. as a CINC. The trial
court then granted Father a three-month reintegration plan. While the plan was in effect,
Father was charged with domestic battery against K.R. and served a jail term.

In August 2015, the trial court held that Father had not satisfied the goals set out in
his reintegration plan. The trial court also found that reintegration was no longer a viable
goal and that either adoption or permanent custodianship might be in M.G.'s best
interests. Then in July 2016, the trial court found that Father was making progress in his
reintegration plan and allowed Father to visit M.G., but it still required that M.G. remain
in State custody.

A trial was held in January 2017. The trial court began by taking judicial notice of
Father's conviction of domestic battery against K.R.

The State called Johanna Falls, who worked for the Kansas Department for
Children and Families (DCF) as an investigator of child abuse and neglect.
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Falls met M.G. and K.R. in the hospital when M.G. was only one day old. Falls
testified that K.R. and Father never married but had been dating for roughly eight or nine
months. Falls also testified that K.R. originally wanted to parent M.G. but had no place to
live. As a result, she planned on living with her father and stepmother. K.R. also told
Falls that Father refused to sign M.G.'s birth certificate and had encouraged K.R. to abort
M.G. K.R. also revealed that Father had physically abused her, including choking her
until she lost consciousness.

Falls learned on June 2, 2014, that K.R.'s parents had kicked her out of their home
and that K.R. had no other place to live. As a result, Falls filed a CINC petition on June 3,
2014, and the State took M.G. into custody on that same day. Although Falls testified that
she made no attempt to contact Father, she explained that no such obligation existed
because there was no known paternal relationship between M.G. and Father. Falls also
testified that Father never contacted DCF and never filed a petition to establish his
parental rights.

Margaret Swayze, M.G.'s court-appointed special advocate, also testified that out
of the six or seven visits between Father and M.G. that she supervised, M.G. never
became comfortable and remained fearful of Father; M.G. would cry throughout the hour
long visits. Swayze testified that M.G. did not exhibit the same behaviors in her foster
home or daycare. Swayze also testified that she thought Father's failure to regularly
attend visits was the leading cause of M.G.'s discomfort with Father. Swayze also did not
believe unsupervised visits with Father would be healthy for M.G.

K.R. testified that she and Father had an on-and-off-again relationship that
ultimately ended when Father became upset about her pregnancy. Father requested that
K.R. get an abortion. According to K.R., the day she gave birth to M.G., Father was in
the hospital but refused to sign the birth certificate.
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K.R. testified that Father had previously physically abused her. On one such
occasion, Father choked K.R. until she lost consciousness. While pregnant, Father
physically abused K.R. until she required hospitalization on four different occasions.
K.R. described two of these occasions:

"[O]ne time he kicked me in my back and I landed on the sofa edge and my stomach hit
it. Another time he dislocated my shoulder blade in the shower because he wanted to go
out and drink with his friends. I told him . . . to stay at home and save money for the
baby. He didn't care. So he would go out."

K.R. also testified that while she was pregnant, Father held her at gunpoint while also
choking her and tried to run her over with his car. Eventually, K.R. filed a restraining
order against Father.

Father was charged with domestic violence after an altercation with K.R. in
September 2014. On that day, Father arrived at K.R.'s apartment and accused her of
having sexual intercourse with her female friend. Father then punched K.R. in the face
and tried to strangle her. He then spit in K.R.'s face, called her names, and told her to
engage in a sexual act with her friend in front of him. Ultimately, Father was charged for
the offense. While out of jail on bond, Father violated the no contact order against him
and was charged with that offense as well.

K.R. testified that Father told her that he had stabbed a man to death when he was
17 years old, that he had enjoyed committing that crime, and that he would eventually kill
again. K.R. also testified that Father tried to stab one of his brothers, whom Father was
living with at the time of trial.



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Christine Lenz, who was assigned as a KVC case manager to M.G.'s case in May
2015, testified that Father seemed to understand his reintegration plan and the tasks that
he was required to accomplish. Furthermore, Father never suggested that he did not
understand the reintegration process.

Lenz testified that Father participated in three visits with M.G. before he was
incarcerated for the domestic violence offense against K.R. According to Lenz, Father
was consistently late to his visits and M.G. did not receive him well; M.G. would cry
throughout the visits. After his release from jail, Father attended eight visits before he
was in a car accident which left him without a vehicle. Father attended zero visits from
August 14, 2015, to December 15, 2015. During this time, Father also stopped taking his
required urine analyses (UAs) and he failed to cooperate with the Interstate Compact for
Placement of Children (ICPC) process.

Lenz further testified that as of April 2015, she received no proof of Father's
progress in his reintegration plan, which had technically expired in October 2014. Father
provided no proof of income or employment, suitable housing, transportation, mental
health evaluations, parenting classes, or completed UAs. Lenz still worked with Father to
give him a chance to complete his reintegration plan. By November 2015, Father had
completed some of his reintegration tasks and was again granted weekly visits with M.G.
His first visit since December 15, 2015, occurred on April 14, 2016. During the few visits
Father attended after April 2016, M.G. cried out for "Mama or Dada or Joe Joe," M.G.'s
foster mother, father, and brother.

Lenz did not believe that M.G. and Father ever bonded. Nevertheless, Lenz
testified that M.G. had bonded to and was happy with her foster family. Lenz also
emphasized that two alternative permanent placement options existed: adoption of M.G.
by her foster parents or by her paternal cousin. Thus, Lenz recommended that the trial
court find Father unfit and unlikely to change in the foreseeable future.
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Last, Patricia W. testified that M.G. was placed with Patricia and her husband
when she was just five weeks old. When the trial occurred, M.G. had been in Patricia's
care for more than 2 1/2 years. Patricia testified that despite offering to send Father
pictures and updates of M.G., Father never responded.

Father's cousin, Michael E., testified that Father and K.R. first came to him and his
wife to request that they take M.G. into foster care after the court adjudicated M.G. a
CINC in 2014. Michael testified that he and his wife agreed that they would foster M.G.
In preparing for their role as foster parents, Michael and his wife obtained mental health
evaluations and rented a residence in Kansas. As explained, Michael and his wife acted as
M.G.'s foster parents for less than one week. Michael also testified that he witnessed
Father and M.G. interacting at the KVC office. Michael testified that Father would play
with and talk to M.G. and that M.G. did not cry during those interactions.

Michael testified that he and his wife would do whatever was necessary to give
Father additional time to become an appropriate parent for M.G.:

"I think he should be given more time and I'm willing to do whatever it takes to help him
. . . . I have a three-bedroom, two-and-a-half bathroom house, I have two dependable
vehicles. Whatever he needs, my wife and I are willing to be there for him. He can move
in, we'll take over the baby, whatever needs to be done."

Nevertheless, Michael testified that Father never requested living or transportation
assistance. Michael had never driven Father to visit M.G., nor had Father lived with
Michael at any point.

Michael described M.G.'s foster parents as "wonderful people." Michael testified
he felt that M.G. had a bond with her foster parents and that he told KVC to let M.G. go
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back to her foster parents, in part, because of that bond and because Michael wanted what
was best for M.G.

Andrea, who is Father's cousin, testified that Father should be given additional
time to complete his reintegration plan. She, too, offered to help Father in any way
needed. Still, Andrea admitted that Father had never contacted her for help.

Father testified about coming to terms with his past criminal convictions. First,
when Father was 17 years old, he assaulted his brother. That assault conviction required
Father to move out of his family home and into a friend's home. While living with that
friend, Father stabbed another person to death. Father claimed that the death was an
accident. After pleading guilty to that crime, Father spent more than eight years in prison.
While incarcerated, Father participated in mentoring classes and obtained his GED.
Father was charged with committing domestic violence against K.R. in 2014. After that,
Father was charged with violating his no contact order with K.R. Father, however, still
believes that K.R. has falsely accused him of committing domestic violence against her.

Father testified that while K.R. was pregnant with M.G., he lived with K.R. and
purchased several things for the baby. Father testified that he was in the hospital when
M.G. was born but did not sign the birth certificate because he wanted a DNA test
performed to ensure M.G. was his child. Father suspected that he was not M.G.'s father
because K.R. had allegedly engaged in prostitution when she was a minor. Father
admitted that he asked K.R. to abort M.G. when he first learned she was pregnant.

Father testified that he knowingly did not participate in his reintegration plan
because he believed that K.R. would quickly and successfully complete her own plan.
Father admitted that for 1 1/2 years that M.G. was in State custody, the only thing he did
towards completing his reintegration plan was take a parenting class. That parenting class
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was an eight-hour, online parenting course, for which he presented KVC with a
certificate of completion.

KVC allowed Father one-hour monthly visits with M.G. Father admitted that he
visited M.G. outside of KVC visitations and that he did not attend or schedule all of his
allowed monthly visits. It was not until 2016 that Father began having consistent visits
with M.G. through KVC. Father conceded that he was sometimes late to visits with M.G.,
but he blamed his work schedule for his tardiness. Father testified that during KVC visits,
M.G. would cry but he would then comfort her and she would eventually stop crying.

Father testified that he had stable housing because he lived in his brother's home
for the preceding three years. Father did not, however, pay rent and was not named on the
lease. The residence did have an extra room for M.G. Father also testified that he had
food in the home and that his brother had completed a background check.

Before trial, Father also completed a level-one mental health evaluation.
Nevertheless, Father waited to get the evaluation until his reintegration plan had long
expired. Father admitted that he had attended only one therapy session and had waited
until after the second time he had been referred to therapy to actually use the resource.
Still, Father maintained that he was willing to continue attending therapy.

By the time of trial, Father was employed. Father first provided KVC with proof
of employment in November 2015. Father claimed that he maintained employment
throughout the entire time that he was not incarcerated. Father also testified that he had
insurance and a valid driver's license and gave KVC records of those as well.

Father admitted that KVC was thorough in assisting him throughout the
reintegration process. Father admitted that around August 2015, he stopped contacting his
case worker, stopped attending visits, and stopped taking UAs. Father admitted that KVC
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twice completed the necessary paperwork to complete an ICPC for his home but he failed
to turn the paperwork in on time. KVC paid for Father to attend a psychological
evaluation. KVC also paid for Father's therapy sessions.

Father testified about his ability to raise M.G. if given the opportunity. He testified
that he lived close to a daycare, that he would provide her with insurance, and that he
planned to continue to live with his brother. Father testified that he was paying $25 per
month in child support but recognized that $25 per month would be insufficient if he had
residential custody of M.G. Father admitted that he had not budgeted for the likely cost of
raising M.G. on his own. Father also admitted to testing positive for opiates in October
2016 and for alcohol in December 2016.

The trial court held that Father was unfit to serve as M.G.'s parent and that Father's
unfitness was unlikely to change in the foreseeable future. The trial court also held that it
was in the best interests of M.G. that Father's parental rights be terminated.

Standard of Review

Before terminating parental rights, the trial court must find that the State proved
by clear and convincing evidence that the parent is unfit and the conduct or condition
which renders the parent unfit is unlikely to change in the foreseeable future and by
preponderance of the evidence that termination of parental rights is in the best interests of
the child. K.S.A. 2017 Supp. 38-2269(a), (g)(1).

In reviewing a trial court's decision terminating parental rights, an appellate court
must 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 parent's rights should be
terminated]." In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). Clear and
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convincing evidence is "an intermediate standard of proof between a preponderance of
the evidence and beyond a reasonable doubt." 286 Kan. at 691. This court does not
reweigh the evidence, judge the credibility of witnesses, or redetermine questions of fact.
286 Kan. at 705.

Clear and Convincing Evidence Supported the Termination of Father's Parental Rights.

Father argues that insufficient evidence existed to support a finding of unfitness
and that the evidence did not support a finding that unfitness could not change in the
foreseeable future. The State responds by asserting that Father's lack of effort over
several years to complete a reasonable reintegration plan constitutes clear and convincing
evidence that he is unfit as a father and that unfitness in unlikely to change. The State,
therefore, maintains that it is in M.G.'s best interests that Father's parental rights be
terminated.

Once a child has been adjudicated a CINC, termination of parental rights is
governed by K.S.A. 2017 Supp. 38-2269. Ordinarily, the trial court evaluates whether a
parent is unfit by considering a nonexclusive list of factors in K.S.A. 2017 Supp. 38-
2269(b) and (c). Any one of the factors standing alone may, but does not necessarily,
provide sufficient grounds for termination. K.S.A. 2017 Supp. 38-2269(f).

The Trial Court's Findings

The trial court relied on four statutory factors to find Father unfit:

1. The agency made reasonable efforts to rehabilitate the family but such efforts
were unsuccessful, K.S.A. 2017 Supp. 38-2269(b)(7);

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2. Father failed to make reasonable efforts to adjust his circumstances, conduct, or
conditions to meet the needs of the child, K.S.A. 2017 Supp. 38-2269(b)(8);

3. Father failed to maintain regular visitation and contact with the child, K.S.A.
2017 Supp. 38-2269(c)(2); and

4. Father failed to carry out a reasonable plan, approved by the trial court, which
was directed toward the reintegration of the child into Father's home, K.S.A. 2017 Supp.
38-2269(c)(3).

The State Presented Clear and Convincing Evidence of Father's Unfitness.

As noted by the trial court, Lenz acted as the case manager since May 2015. For
years, Lenz made herself available to Father by text and by phone call. Lenz coordinated
visits and referred Father to parenting classes. KVC provided Father with cost-free drug
and alcohol testing. KVC also provided Father with free therapy services. Lenz and
KVC's efforts to help Father complete his court-approved reintegration plan were
thorough and lasted for more than two years. Father even admitted that these efforts were
thorough. Despite those efforts, Father waited until his reintegration plan expired before
making any effort to complete the necessary tasks. Once these attempts finally began,
Father still failed to complete the reasonable, court-approved plan for reintegration.

Father's reintegration plan required, in part, that he: (1) obtain suitable living
conditions, (2) receive a mental health evaluation, (3) maintain employment and provide
documentation of employment, (4) practice appropriate, violence-free parenting skills, (5)
abstain from breaking the law, and (6) participate in approved visitations with M.G.

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Lenz testified that Father seemed to understand his reintegration plan and the tasks
that had to be accomplished to complete his plan. Lenz testified that Father never
suggested that he didn't understand the reintegration process, nor any paperwork been
submitted showing Father had any form of a cognitive disability.

Father testified that because he believed that M.G.'s mother would successfully
complete her reintegration plan, he did not try to complete his own plan. Thus, Father
waited until his reintegration plan had expired before even starting the reintegration
process. Lenz testified that as of April 2015, she had received no proof of Father's
progress in his reintegration program. Father provided no proof of income or
employment, suitable housing, transportation, mental health evaluations, parenting
classes, or completed UAs. Lenz acknowledged that by the time of trial, Father had
completed at least some tasks in his reintegration plan but waited till the expiration of his
reintegration plan to work toward completing it.

For example, Father submitted proof of employment, housing, and a mental health
evaluation. Father, however, still committed violent offenses, failed to participate in
consistent visits with M.G., and did not meaningfully participate in therapy. The record
also shows that Father twice failed to complete the ICPC process for his residence and
failed two UAs. Also, Father's residence could not be considered "stable" because he
admitted that he was not on the lease and did not pay rent. Alarmingly, the owner of the
residence is Father's brother, who Father had previously assaulted and allegedly
attempted to stab.

K.R. testified that Father sometimes drank and often failed to assist in paying rent
and other bills. K.R. also testified that Father choked and hit K.R. while pregnant,
sometimes requiring hospitalization.

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According to Lenz, Father's sporadic visitations caused M.G. to forget who he was
and would cause her to fear Father. During the visits Father did attend, M.G. cried out for
"Mama or Dada or Joe Joe," M.G.'s foster mother, father, and brother. Lenz testified that
as of the trial date,

"[M.G.] ha[s] been in out-of-home care for 33 of the 34 months of her life. During that
time [Father] has had the opportunity to work on his case plan tasks and to build a
relationship with [M.G.]. He has shown a lack of commitment to the reintegration of
[M.G.], which is evident in his lack of cooperation in the two failed ICPC's, his delayed
participation in services to address his past history of violence and mental health
concerns.
"He has been inconsistent with visits and lack of engagement with [M.G.] during
these visits. And he has stated in the past that he was going to relinquish his rights and
then he changed his mind."

Ultimately, Lenz did not think that M.G. and Father ever established a bond.

Thus, clear and convincing evidence supports the trial court's finding that Father
was unfit and unable to care for M.G.

The Conduct or Condition Rendering Father Unfit is Unlikely to Change in the
Foreseeable Future.

Clear and convincing evidence must support the trial court's finding that the
conduct or condition rendering Father unfit is unlikely to change in the foreseeable
future. K.S.A. 2017 Supp. 38-2269(a). In defining foreseeability, we calculate the time
frame through the lens of how children experience the passage of time. K.S.A. 2017
Supp. 38-2201(b)(4); see In re L.B., 42 Kan. App. 2d 837, 842, 217 P.3d 1004 (2009)
(requiring cases be decided in "child time" rather than "adult time"), rev. denied 289 Kan.
1278 (2010). Father's past conduct may be used as an indicator of his future behavior. See
In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982); In re M.T.S., No. 112,776,
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2015 WL 2343435, at *8 (Kan. App.) (unpublished opinion), rev. denied 302 Kan. 1010
(2015); In re N.A.K., No. 118,376, 2018 WL 3077085, at *9 (Kan. App.) (unpublished
opinion), petition for review filed July 23, 2018.

Father argues that if given the opportunity, he could establish fitness within the
foreseeable future. Father emphasizes that his family is willing to provide any additional
support necessary to establish fitness. We find Father's argument unconvincing; his
violent past also contradicts his assertions.

First, Father places too much emphasis on his family's ability to parent M.G. and
assist in the changes necessary to establish fitness. While familial assistance is permitted,
it is not Father's family that must establish fitness; Father, himself, must establish
parental fitness. Additionally, Father's family testified that they offered Father the support
he needed before the trial court found Father unfit. Father did not use this help when it
was first offered and does not support his argument that he intends to use it now or in the
near future. Moreover, this contradicts the argument that his unfitness is likely to change
in the foreseeable future.

Finding that Termination of Parental Rights is in the Best Interests of the Child

Following a finding of unfitness, the trial court next must determine if termination
of parental rights is in the best interests of the child. K.S.A. 2017 Supp. 38-2269(g)(1).
Our Supreme Court has noted that the trial court is in the best position to make that
determination, and this court may not overturn that decision without finding an abuse of
discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). A trial
court abuses its discretion if its decision is one that no reasonable person could accept or
if its decision is based on a factual or legal error. Critchfield Physical Therapy v. The
Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011).

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Here, Father had nearly three years to show a likeliness to change his conduct or
condition to better meet the physical, mental, and emotional needs of M.G. As pointed
out earlier, Father has shown that he is unlikely to do so. Given the time and effort spent
in trying to reintegrate him with his daughter, a reasonable person could agree with the
trial court in concluding that M.G. was best served by the termination of her relationship
with Father.

For the reasons explained, we find clear and convincing evidence of the factors
necessary to terminate parental rights under K.S.A. 2017 Supp. 38-2269(a): that the
agencies made reasonable efforts to rehabilitate the family but such efforts were
unsuccessful, K.S.A. 2017 Supp. 38-2269(b)(7); that Father failed to make reasonable
efforts to adjust his circumstances, conduct, or conditions to meet the needs of the child,
K.S.A. 2017 Supp. 38-2269(b)(8); that Father failed to maintain regular visitation and
contact with the child, K.S.A. 2017 Supp. 38-2269(c)(2); and that Father failed to carry
out a reasonable plan, approved by the trial court, which was directed toward the
reintegration of the child into Father's home, K.S.A. 2017 Supp. 38-2269(c)(3).
Moreover, under K.S.A. 2017 Supp. 38-2269(g)(1), the termination of Father's parental
rights is in the best interests of the child.

Affirmed.