In re M.M.M.

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NOT DESIGNATED FOR PUBLICATION

No. 113,875

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of M.M.M., M.L.M., M.M., and A.D.M.,

Persons Under Eighteen (18) Years of Age.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed March 4, 2016.
Affirmed.

Nancy Ogle, of Ogle Law Office, of Wichita, for appellant.

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

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

Per Curiam: M.M.M. (Mother), the natural mother of M.M.M., M.L.M., M.M.,
and A.D.M., appeals from the district court's termination of her parental rights. She
claims that because the State failed to prove her unfitness by clear and convincing
evidence, the district court erred by terminating her parental rights. Finding no reversible
error, we affirm.

Factual History

In June 2013, M.M.M., M.L.M., M.M., and A.D.M., the children, who had been in
Mother's care, were placed in protective custody. The State's petition alleged that the
children were without adequate care, control, or subsistence not solely due to the lack of
financial means, without the care or control necessary for their health, had been abused or
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neglected, had not been attending school, and had been living with a sibling that had been
abused or neglected. Each child was adjudicated as a child in need of care.

In January 2014, the children were reintegrated with Mother. Saint Francis
Community Services (SFCS), the organization managing this case, later learned that
Mother had law enforcement contact after the children had been integrated due to
incidents involving her then-boyfriend, Cleodis Walker. In one incident, Mother reported
to police that Walker had choked her and threatened to kill her. Mother did not, however,
report these incidents to SFCS. When questioned about these incidents and her failure to
report them, Mother stated that they were not a "big deal" and that she had not mentioned
Walker because they were not "'technically together.'" Because Mother violated her
reintegration and safety plans, the children were again removed from Mother's care.

In June 2014, the State filed a motion for termination of parental rights. An
amended motion was filed in August 2014. The State moved to terminate Mother's
parental rights, and those of the children's two fathers, based on allegations of alcohol
and narcotics use by one of the fathers, physical, mental, or emotional abuse or neglect or
sexual abuse, failure of reasonable efforts made by agencies to rehabilitate the family,
lack of effort on Mother's part to adjust her circumstances, conduct, or conditions, and
failure to carry out a reasonable reintegration plan.

In August 2014, the first termination hearing was held. After the State had
presented some of its evidence, and before Mother had presented any evidence, the
district court told Mother that it was uncontroverted that she was presently unfit. The
only remaining issue was whether Mother was unfit for the foreseeable future. The
district court also discussed its concerns about the men Mother allowed into the children's
lives. Mother was instructed that she needed to provide a safe environment for the
children by monitoring who comes in her house. The district court then set a date to
reevaluate Mother's status.
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Also at the first hearing, the district court found one of the fathers in default for
failing to appear. The other father voluntarily relinquished his parental rights. The district
court issued an order finding Mother presently unfit and terminating both fathers' parental
rights.

In March 2015, the district court reconvened for a second termination hearing. The
State again called witnesses, some of whom had testified at the previous hearing. Mother
also testified. After hearing the testimony, the district court again found that Mother was
unfit and this time concluded that she would be unfit for the foreseeable future.
According to the district court, Mother had failed to take responsibility for exposing the
children to harmful men and had failed to make the proper changes. The district court
issued an order terminating Mother's rights, based on the presence of the statutory factors
listed in K.S.A. 2015 Supp. 38-2269(b)(4), (b)(7), (b)(8), and (c)(3). Mother timely
appeals.

Record on Appeal

The State first claims that Mother failed to provide a complete record on appeal.
The appellant has a duty to designate a sufficient record. State ex rel. Stovall v. Alivio,
275 Kan. 169, 172, 61 P.3d 687 (2003). But here, the 83 trial exhibits introduced by the
State are missing from the record on appeal. Some of those exhibits would likely not be
pertinent to this appeal, but others seem relevant, based on their captions. Nonetheless,
the transcripts of the termination hearings provide enough testimony regarding those
exhibits for us to consider Mother's claims.

Mother's Unfitness

On appeal, Mother claims that the district court erred in terminating her parental
rights. She specifically claims that the district court's finding of unfitness was not
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supported by clear and convincing evidence. According to Mother, the State did not meet
its burden of showing that termination was warranted under K.S.A. 2015 Supp. 38-
2269(b)(4), (b)(7), (b)(8), and (c)(3).

When reviewing a district court's finding of unfitness, we employ a clear and
convincing evidence standard of review. See K.S.A. 2015 Supp. 38-2269(a). In other
words, we consider whether we are convinced that a rational factfinder, viewing the
evidence in the light most favorable to the State, "could have found it highly probable,
i.e., by clear and convincing evidence" that the parent was unfit. In re B.D.-Y., 286 Kan.
686, 705, 187 P.3d 594 (2008). We "[do] not weigh conflicting evidence, pass on
credibility of witnesses, or redetermine questions of fact." 286 Kan. at 705.

Once a child has been adjudicated as a child in need of care, parental rights may
be terminated if "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). A nonexclusive list of factors that a district court may consider
when making this determination is provided in K.S.A. 2015 Supp. 38-2269(b) and (c).
Any one factor may, but does not necessarily, "establish grounds for termination of
parental rights." K.S.A. 2015 Supp. 38-2269(f). A district court may also consider
nonstatutory factors. See K.S.A. 2015 Supp. 38-2269(b). As the petitioner, the State bears
the burden of proof. K.S.A. 2015 Supp. 38-2250.

The district court in this case found that termination was warranted based on the
following statutory factors:

 K.S.A. 2015 Supp. 38-2269(b)(4)—physical, mental, or emotional abuse or
neglect or sexual abuse of a child;
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 K.S.A. 2015 Supp. 38-2269(b)(7)—failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family;
 K.S.A. 2015 Supp. 38-2269(b)(8)—lack of effort on the part of the parent to adjust
the parent's circumstances, conduct, or conditions to meet the needs of the child;
and
 K.S.A. 2015 Supp. 38-2269(c)(3)—failure to carry out a reasonable plan approved
by the court directed toward the integration of the child into a parental home.

Our review of the record indicates that the district court's findings were correct.

First, the State presented evidence of abuse. Mother admitted that M.M.M. had
been abused as an infant. She also testified that M.M.M. and M.M. had reported being
sexually abused. Mother argues that the State did not present any evidence that she
abused the children. But K.S.A. 2015 Supp. 38-2269(b)(4) does not specify that the
parent must be the abuser. Further, the district court in this case was concerned about the
men Mother allowed to be near the children. And in the past, Mother had allowed abusers
to be in the children's lives.

Reasonable efforts were also made to rehabilitate the family. Between a DCCCA
family preservation, a Butler County CINC case, a Butler County truancy program, and
almost 2 years in this case, there has been a total of almost 9 years of social services
intervention in Mother's family. In this case, SFCS provided the family with therapeutic
family visits. Mother also received individual therapy. And after the first termination
hearing, where it found that Mother was presently unfit, the district court gave Mother
additional time to improve her conduct and conditions.

Mother also failed to adjust her circumstances, conduct, or conditions to meet her
children's needs. Termination proceedings in this case were prompted by incidents
involving Mother and Walker, which led to law enforcement contact. After the first
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termination hearing, the district court warned Mother about her involvement in "volatile
relationships" and told her that she needed to maintain a safe environment for the
children. But SFCS learned in the time between the termination hearings that Mother had
been spending time with a convicted sex offender. According to Mother, she only
recently discovered that he was a sex offender and he had only been giving her rides to
and from work. But Mother's therapist also testified that Mother had not shown that she
had taken responsibility for the men she was involved with and continued to not
recognize the seriousness of the issue. Likewise, the SFCS case manager also testified
that she believed Mother still did not understand why the children had been taken from
her, and Mother had not taken responsibility for putting the children in danger by
exposing them to harmful men.

Finally, Mother failed to carry out her achievement plan. After the first
termination hearing, the SFCS case manager gave Mother an achievement plan to address
the district court's concerns. As part of that plan, Mother was required to attend a
domestic violence class and continued to receive individual therapy to address her
relationship issues. But Mother did not complete the domestic violence class. Although
Mother did attend some therapy sessions, she missed others. Mother's therapist also
testified that when Mother did attend, she was disengaged and often texted during the
sessions. More importantly, the SFCS manager and Mother's therapist both testified that
not attending the domestic violence class, missing appointments, and not being engaged
in therapy was concerning because it showed that Mother continued to not recognize her
need to address her involvement with harmful men.

We therefore are convinced that a rational factfinder, when viewing the evidence
in the light most favorable to the State, could have found, based on the presence of the
statutory factors provided in K.S.A. 2015 Supp. 38-2269(b)(4), (b)(7), (b)(8), and (c)(3),
that Mother was unfit. Thus, the district court did not err by finding Mother unfit.

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Foreseeable Future and Children's Best Interests

As noted, a district court may terminate parental rights if "the court finds by clear
and convincing evidence that the parent is unfit by reason of conduct or condition which
render the parent unable to care properly for a child and the conduct or condition is
unlikely to change in the foreseeable future." (Emphasis added.) K.S.A. 2015 Supp. 38-
2269(a). Also, if the district court makes an unfitness finding, it "shall consider whether
termination of parental rights as requested in the petition or motion is in the best interests
of the child." K.S.A. 2015 Supp. 38-2269(g)(1). The district court in this case determined
that the conduct or condition leading to Mother's unfitness was unlikely to change in the
foreseeable future and that termination was in the children's best interests.

Mother does not argue on appeal that these findings were erroneous. She claims
only that the State did not prove by clear and convincing evidence that she was unfit.
Mother cites K.S.A. 2015 Supp. 38-2269(a), but does not address the foreseeable future
prong. She also does not mention whether termination was in the children's best interests.
Because these issues were not briefed, we find them to be waived and abandoned. See
Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). As a result, because we have
already determined that the district court's finding of unfitness was supported by clear
and convincing evidence, we conclude that the district court did not err by terminating
Mother's parental rights.

Affirmed.