In re N.A.K.

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NOT DESIGNATED FOR PUBLICATION

No. 118,376

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of N.A.K. and L.D.K.,
Minor Children.


MEMORANDUM OPINION

Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed June 22, 2018.
Affirmed.

Jonathan B. Phelps, of Phelps-Chartered, of Topeka, for appellant natural mother.

Kyle Edelman, assistant district attorney, and Michael F. Kagay, district attorney, for appellee.

Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.

PER CURIAM: T.J.C. (Mother) appeals the district court's termination of her
parental rights to her sons, N.A.K., born in 2015, and L.D.K., born in 2013. On appeal,
Mother argues that (1) the district court erred by denying an informal request for a
continuance; (2) the district court's finding of unfitness was not supported by clear and
convincing evidence; and (3) the district court erred by finding that it was in the
children's best interests to terminate her parental rights. For reasons more fully set out
below, we disagree with Mother's arguments and affirm the district court's decision.

FACTUAL AND PROCEDURAL HISTORY

On January 11, 2016, Mother called Safe Families—a Christian ministry that
provides social services to families, especially mothers—and reported that she had been
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using methamphetamine, that she would use again, and that she had slapped her oldest
son. Mother had a previous relationship with Safe Families and had used their services
before. The social worker who responded to Mother's call observed a mark on L.D.K.'s
cheek near his right ear lobe and informed Mother that she had already used all of the
allowed hosting time for her sons that year. As a licensed social worker, the Safe
Families representative who met with Mother was a mandated reporter, and she made a
report to the Kansas Department for Children and Families (DCF) regarding Mother's
statement that she hit L.D.K. and was using methamphetamine. At this time L.D.K. was
two years old and N.A.K. was seven months old.

The next day, a DCF social worker conducted a welfare check at Mother's home
and also observed an injury to L.D.K.'s face; she described it as a half-inch scratch on his
right cheek close to his ear. This social worker tried to address the reported concerns with
Mother, but Mother was verbally aggressive, cussing and yelling, and denied striking
L.D.K. This social worker asked Mother to complete a urinary analysis (UA) test; Mother
did not comply with this request. DCF offered Mother family preservation services, but
she elected not to partake in those services.

On January 13, 2016, the State filed petitions in the Shawnee County District
Court alleging that N.A.K. and L.D.K. were children in need of care (CINC). On January
15, 2016, the district court entered an order of temporary custody, placing the children in
the temporary custody of DCF.

On February 17, 2016, the children were adjudicated CINC as alleged in the
petitions after Mother did not contest the allegations in the petitions. On March 14, 2016,
the district court entered an order of disposition that the children remain in the custody of
DCF and adopted the proposed permanency plan with the goal of reintegration.

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The permanency plan included the following 11 tasks to be completed by Mother
for the reintegration of the boys into her home: (1) obtain safe, stable housing free from
drugs; (2) obtain a verifiable, legal source of income sufficient to meet the needs of the
boys; (3) comply with KVC's UA color code system and all requested hair test requests;
(4) maintain at least monthly contact with the agency and provide the agency with her
current contact information; (5) sign all necessary releases of information needed by
KVC to communicate with the professionals in her life; (6) schedule a RADAC
assessment to assign her to an appropriate drug treatment program; (7) participate in a
RADAC assessment; (8) follow the recommendations of the RADAC assessment; (9)
schedule a mental health assessment; (10) participate in a mental health assessment; (11)
follow the recommendations of the mental health assessment.

Nearly one year later, on January 12, 2017, the State filed a second amended
petition and motion for finding of unfitness and termination of parental rights or
appointment of permanent custodian pursuant to K.S.A. 2017 Supp. 38-2266. The district
court held a three-day hearing on this motion beginning on June 20, 2017.

At the hearing, several professionals testified, including the Safe Families social
worker, the DCF social worker who did the initial welfare check, the KVC case
managers, Mother's current pretrial supervisor for her pending felony drug charges,
several of Mother's drug addiction counselors, and a psychologist. These individuals
testified regarding Mother's tasks on her permanency plan for N.A.K. and L.D.K. The
foster mother for the boys' current foster care placement and Mother also testified. The
following is a summary of the testimony as it related to the permanency plan tasks to be
completed by Mother:

(1) Obtain safe, stable housing free from drugs. Mother testified that
during the pendency of the CINC case she lived in three different locations, two of
which were leased in her own name, and that she had utilities connected for all of
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this time. However, Mother did not provide KVC with a copy of her lease or
utility bills. When asked why she did not bring copies to KVC, Mother testified
that she "would just space it off."

(2) Obtain a verifiable, legal source of income sufficient to meet the
needs of the boys. Mother testified that, with the exception of a couple of weeks,
she was employed throughout the pendency of the case. Yet again, Mother did not
provide KVC with any of her pay stubs. Like a copy of her lease and utilities,
Mother testified that she did not bring copies of her pay stubs to KVC because she
"space[d] it off."

(3) Comply with KVC's UA color code system and all requested hair
test requests. Under KVC's UA color code system, Mother was required to comply
with two UA tests per week. Mother either did not show up to comply or tested
positive for methamphetamine in approximately 95% of the required UAs. Her
plan specifically provided that a missed test would count as a positive result.
Mother complied with two hair test requests, both of which were positive for
drugs. Mother testified she would rather not show up for a UA test than provide a
dirty UA result. Mother showed up only 14 times in 73 weeks of required testing.
There were a couple of negative UA results.

(4) Maintain at least monthly contact with the agency and provide the
agency with her current contact information. KVC would go months without
hearing from Mother. Additionally, Mother switched phone numbers often, and
the agency never knew if their attempts to contact her were going through.

(5) Sign all necessary releases of information needed by KVC to
communicate with the professionals in her life. Mother provided a release from
one of her treatment centers to allow KVC to communicate with the professionals
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helping her. However, there were no releases signed with her other treatment
professionals.

(6) Schedule a RADAC assessment to assign her to an appropriate drug
treatment program. Mother scheduled her RADAC assessment.

(7) Participate in a RADAC assessment. Mother participated in her
RADAC assessment.

(8) Follow the recommendations of the RADAC assessment. Mother
began to follow the recommendations of her RADAC assessment. She was
required to attend treatment four times a week for three hours. However, she was
discharged from treatment centers for lack of attendance.

(9) Schedule a mental health assessment; (10) participate in a mental
health assessment; and (11) follow the recommendations of the mental health
assessment. There is no information in the record directly regarding Mother's
progress on these tasks. A KVC professional testified that the agency's immediate
concern was getting Mother into treatment for her addiction, so that was where
efforts were initially focused.

Testimony provided other information about Mother, N.A.K., and L.D.K. Mother
had a prior felony burglary conviction from 1999 and had felony drug charges pending
against her at the time of trial. The district judge addressed her pending charges, stating:
"[M]other is now incarcerated facing criminal charges in a felony drug case. And
although she is innocent of those charges until proven guilty, the specter and accusations
of continued drug use, as recently as her new arrest, persists." Additionally, Mother
previously voluntarily relinquished her parental rights to another child in 2011.

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Niki Unfred, the KVC case supervisor, testified: "When the kids were initially
referred, I felt like, in my professional opinion, that things could go very well." For the
first month, Mother was very engaged, but by mid-February 2016, she started losing
contact with KVC. Unfred testified to Mother's progress on her case plan, as discussed
above. In order for Mother to have visits with her sons, she was required to have two
weeks of clean UA tests. Mother received one visit with N.A.K. and L.D.K. in February
2016 but did not receive another visit with her sons until March 2017 during a
psychological and parenting evaluation. This evaluation consisted of two visits with her
sons. Mother's failure to comply with the UA requirements prevented her visits with her
sons. Ultimately, Unfred testified that she believed the termination of Mother's parental
rights was in the best interests of N.A.K. and L.D.K. because

"if mom had shown some progress, even minimal progress, on her case plan, I would not
have looked at moving forward with adoption. We don't even know where she's been
over half the time in the case. I don't know what she's done. She hasn't had housing. She
hasn't had stable employment. She has not kept in contact with the agency. And she is not
clean. And I cannot recommend reintegration into a home that I don't feel is safe for these
two children. They're too small. They can't fend for themselves."

Finally, Unfred testified that returning N.A.K. and L.D.K. would not be conducive to
their well-being because she did not think they would be safe in the home with Mother,
she did not feel they would be taken care of, and she did not feel Mother met their basic
needs.

Dr. J. Stephen Hazel, a psychologist, testified about the assessment and parenting
evaluation he performed on Mother. The assessment and parenting evaluation consisted
of Dr. Hazel meeting with Mother on three separate occasions: once with just Mother
and then two observations of Mother interacting with her sons. Dr. Hazel testified that
Mother certainly cared about her children but that the primary issue was her substance
abuse history and the resulting difficulty with parenting and stability. Dr. Hazel
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characterized Mother's addiction issues as the major risk factor in Mother's life. He
believed that she was aware of the effects of her substance abuse. He testified that there
were no issues with Mother's parenting skills and ability to relate to the boys and that she
had the ability to be a good parent. However, in order for her to do this, the key was
abstaining from substance abuse and that treatment was critical. Finally, he testified that
if she could address her substance abuse issues in a substantive way, she was capable of
parenting the children.

Tonja McCollam, an infant mental health specialist, also testified at trial. She
worked with N.A.K. and L.D.K. in their foster home for one to two hours a week
providing developmental and social-emotional support to the boys. She performed two
assessments on each of the boys—one for developmental benchmarks and another of
social and emotional benchmarks. Both N.A.K. and L.D.K. fell within the
developmentally normal range of the assessment, which screened for skills in
communication, gross motor skills, fine motor skills, problem solving, and personal and
social skills. However, on the social-emotional support screening, which assessed
attachment relationships, self-regulation, ability to self-sooth, sleeping patterns, and toilet
issues, both N.A.K. and L.D.K. qualified for additional support. McCollam testified that
L.D.K. was "off the charts" in his need for extra support based on his social-emotional
screening. N.A.K. also qualified for additional support, but his score was not nearly as
significant as L.D.K.'s.

McCollam testified that L.D.K. was very hard to soothe and impulsive. He was
also aggressive and had issues with hitting, yelling, screaming, and crying. L.D.K.
showed an inability to regulate his emotions that was beyond what was typical for a child
his age. N.A.K.'s behavioral issues were less severe and, in McCollam's opinion, they
were mimicked behaviors from his older brother. Through McCollam and the foster
placement's work with the boys, the frequency and duration of the tantrums have
decreased, and their ability to regulate their emotions and express their needs has
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increased. However, after N.A.K. and L.D.K.'s visits with their mother at Dr. Hazel's
office, both boys showed dysregulation in their behaviors. McCollam also testified that
she was not provided N.A.K. and L.D.K.'s entire history; however, generally,

"kids who seem to not regulate hardly at all have been exposed to something traumatic,
whether it be drug exposure or domestic violence. . . . [T]hey've been exposed to
something and needs not being met. And I would say that had to have happened prior to
foster care placement for those needs to be as significant as they are."

But, she acknowledged that some of their behaviors could also be affected by being
removed from Mother's care. Finally, she testified that the boys needed a stable,
consistent, and structured environment with limit setting and follow through.

Mother testified that she reached out to Safe Families to get help with L.D.K. and
that she may have "exaggerated" that she hit him because "it seemed like nobody
understood where she was coming from" in trying to get help with her addiction. She
testified: "So I may have over exaggerated, but I did not hit my son." She testified that
she has struggled with methamphetamine addiction since 2011 and that she successfully
completed treatment for her addiction once before. Mother testified that she had two
leases during the pendency of the case and then stayed with a family friend and at the
Mission after those leases ended. Yet, KVC was never supplied with copies of her leases.
She said she put her job and housing before her addiction treatment and that she now
regrets that decision. She discussed in detail the different jobs she had in the nursing field
during the pendency of the case. Again, however, she never provided KVC with proof of
employment because she would "just space off" bringing in her pay stubs. She discussed
that she was given a car by a member of her church congregation; however, she gave that
car away to a friend. She reiterated multiple times that she needed help with her
addiction. When asked what additional services KVC could have provided her to help
with her addiction, she testified: "[Just be] more encouraging. A smile, to be motivating
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and positive, . . . understanding and compassionate. That can do so much for a person."
She also expressed how much she loves her sons and that she is a good mother to them.
At the conclusion of her direct testimony the following exchange occurred:

"[MOTHER'S ATTORNEY]: [I]f you could ask the Judge, and you've already
asked me this, but if you could ask [sic] the Judge one thing, what would it be?

"[MOTHER]: Please give me a little more time to prove myself, and can I say it?
That if I cannot get my stuff together, . . . I would be in agreement with everybody, like if
I―if I've come this far and I've been through so much and I can't get it together, that
maybe somebody else should raise my children. And having met that woman, I am very
grateful they're in a good home. And if that's where they would stay, I would willingly
sign over my rights.

"[MOTHER'S ATTORNEY]: How much time do you think is fair?

"[MOTHER]: I could do it in three months, but I would ask for six, just because
I'm human, and you know, I―I―I feel like even at work, I'm one of those. Like, when I
was a charge nurse, and like, I was one of those people that I'm all in, like I take pride in
what I do, you know, and I'm all for it. And when I have . . . support like that and I'm
feeling good, I know I can do it, but I'm human. So I would ask for six, but I believe . . . I
could show a change in three months, because I would go straight to in-patient."

At the conclusion of the hearing, in open court, on June 22, 2017, the district court
entered its findings and orders with regard to the State's motion. The court stated there
was no doubt that Mother loved her children deeply but that this case was not about
Mother's love for her children, it was about the impact her mental health and, principally,
her drug addiction have on her ability to "effectively and adequately care for and nurture
and rear" her children. The district court emphasized that addiction was the main issue
preventing Mother from parenting her children, yet:

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"[t]here was no commitment to attend treatment and she had an inability to remain
abstinent. That indicated to the Court, after several attempts at treatment . . . through the
years, that mother cannot demonstrate an ability to change herself or her future behavior.
It appears to the Court mom was not willing to change her lifestyle."

The court further discussed:

"Throughout the life of these cases and during this trial, mother has repeatedly
said that she needs and wants help, but when those opportunities for help and structure
are offered to her, like through a Court-approved case plan, containing reintegration tasks
developed in conjunction with her by the agency, to reintegrate children in her home, she
does not follow through with even the simplest of tasks, like [UAs], providing
documentation. She claims repeatedly that she has, in her immediate possession, her
proof of employment or safe and stable housing. And when she does engage, it's often
when the options to redeem her situations have passed.

"When she was asked by the State, again, quote 'What more can the agency do to
help you' end quote, she replied with quote 'smile, compassion, be more supportive' or
words to that effect. In effect, give me moral support, but by implication, she's admitting
that the agency has provided all sorts of support and plans where she has provided less
than the minimal compliance."

The district court went through each witness' testimony in detail and then found
that the evidence presented, when viewed in its totality, supplied clear and convincing
support for a finding that Mother was unfit under several subsections of K.S.A. 2017
Supp. 38-2269(b) and (c).

The district court then found that Mother's conduct or conditions causing her
unfitness were not likely to change in the foreseeable future. The court then stated that
viewing the case in child time—where L.D.K. has spent one-third of his life in foster care
and N.A.K. has spent two-thirds of his life in foster care—combined with Mother's long
history of drug and mental health issues that continue to occur without successful redress,
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the boys' dysregulation after visits with Mother, the boys' need for an ongoing and
consistent home, and their current physical, mental, and emotional state, that the evidence
supported a termination of Mother's parental rights. Finally, the district court stated that it
was "imperative that these children find permanence and nurturing, stable homes in order
to provide them with structure, guidance, love, support, medical and psychological
treatment" and because of this, termination of Mother's rights was in the best interests of
N.A.K. and L.D.K.

Mother timely appeals the finding of unfitness and termination of her parental
rights.

DOES CLEAR AND CONVINCING EVIDENCE SUPPORT
THE DISTRICT COURT'S UNFITNESS FINDING?

Mother argues that the district court erred in terminating her parental rights to
N.A.K. and L.D.K. It appears from her brief that she has several interwoven arguments:
(1) the district court failed to use the proper definition of "unfit"; (2) the district court did
not consider Dr. Hazel's testimony; (3) the district court was without sufficient facts to
support a finding that Mother was unfit by conduct or condition and that the conduct or
condition was unlikely to change in the future; and (4) the district court abused its
discretion by finding it was in the best interests of the children to terminate Mother's
rights instead of granting a permanent custodianship. Rather than address each of
Mother's arguments in order, we will discuss her arguments within the structure of the
proper steps a district court must take in order to terminate a parent's rights.

When we review a district court's termination of parental rights, we consider
"whether, after review of all the evidence, viewed in the light most favorable to the
State, [we are] 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]."
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In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In In re B.D.-Y., our Supreme
Court explained that "clear and convincing evidence" requires the factfinder to believe
"that the truth of the facts asserted is highly probable." 286 Kan. at 697. "[T]he appellate
court does not weigh conflicting evidence, pass on credibility of witnesses, or
redetermine questions of fact." 286 Kan. at 705.

Once a child has been adjudicated a CINC, termination of parental rights is
governed by K.S.A. 2017 Supp. 38-2269. A district court may terminate the rights of a
natural parent when it finds by clear and convincing evidence that (1) the parent is unfit
and unable to properly care for the child; (2) the conduct or condition that renders the
parent unfit is unlikely to change in the foreseeable future; and (3) termination of parental
rights is in the best interests of the child. K.S.A. 2017 Supp. 38-2269(a), (g)(1); In re
D.H., 54 Kan. App. 2d 486, 488, 401 P.3d 163 (2017).

A. Mother is unfit and unable to properly care for the children.

Under K.S.A. 2017 Supp. 38-2269(b), the following factors are among those that
can be considered to determine a parent's unfitness:

"(1) Emotional illness, mental illness, mental deficiency or physical disability of
the parent, of such duration or nature as to render the parent unable to care for the
ongoing physical, mental and emotional needs of the child;
"(2) conduct toward a child of a physically, emotionally or sexually cruel or
abusive nature;
"(3) the use of intoxicating liquors or narcotic or dangerous drugs of such
duration or nature as to render the parent unable to care for the ongoing physical, mental
or emotional needs of the child;
"(4) physical, mental or emotional abuse or neglect or sexual abuse of a child;
"(5) conviction of a felony and imprisonment;
"(6) unexplained injury or death of another child or stepchild of the parent or any
child in the care of the parent at the time of injury or death;
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"(7) failure of reasonable efforts made by appropriate public or private agencies
to rehabilitate the family;
"(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
"(9) whether the child has been in extended out of home placement as a result of
actions or inactions attributable to the parent and one or more of the factors listed in
subsection (c) apply."

Further, K.S.A. 2017 Supp. 38-2269(c) requires that when a child is not in the physical
custody of a parent the district court shall consider, but is not limited to, the following:

"(1) Failure to assure care of the child in the parental home when able to do so;
"(2) failure to maintain regular visitation, contact or communication with the
child or with the custodian of the child;
"(3) failure to carry out a reasonable plan approved by the court directed toward
the integration of the child into a parental home; and
"(4) failure to pay a reasonable portion of the cost of substitute physical care and
maintenance based on ability to pay."

Any one of the above factors alone may establish grounds for the termination of parental
rights. K.S.A. 2017 Supp. 38-2269(f). Finally,

"[a] parent may be labeled 'unfit' under the law even though he or she loves the child and
wants to do the right thing, which may be the case here. But we must judge these cases
based mostly upon actions, not intentions, and we must keep in mind that a child deserves
to have some final resolution within a time frame that is appropriate from that child's
sense of time." In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237, rev. denied 286
Kan. 1177 (2008).

A review of the record on appeal, in the light most favorable to the State, indicates
that there was clear and convincing evidence supporting the district court's finding that
Mother was unfit under the following factors:
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 K.S.A. 2017 Supp. 38-2269(b)(1)—"Emotional illness, mental illness, mental
deficiency or physical disability of the parent, of such duration or nature as to
render the parent unable to care for the ongoing physical, mental and emotional
needs of the child." By her own admission and testimony from Dr. Hazel,
Mother suffered from depression.

 K.S.A. 2017 Supp. 38-2269(b)(3)—"[T]he use of intoxicating liquors or
narcotic or dangerous drugs of such duration or nature as to render the parent
unable to care for the ongoing physical, mental or emotional needs of the
child." Mother has struggled since 2011 with her methamphetamine addiction.
Although she has had periods of remission, she continues to relapse.

 K.S.A. 2017 Supp. 38-2269(b)(4)—The "physical, mental or emotional abuse
or neglect or sexual abuse of a child." Although Mother testified that she "over
exaggerated" hitting L.D.K., the district court apparently did not find this
testimony credible and found that an instance of physical abuse with one of the
boys occurred.

 K.S.A. 2017 Supp. 38-2269(b)(5)—The "conviction of a felony and
imprisonment." Mother had a prior felony burglary conviction.

 K.S.A. 2017 Supp. 38-2269(b)(7)—The "failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family." Several
efforts made by the agency to rehabilitate the family were unsuccessful,
including providing Mother with multiple drug addiction treatment
opportunities at several different treatment centers.

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 K.S.A. 2017 Supp. 38-2269(b)(8)—A "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." Mother did not take the appropriate steps in her drug addiction
treatment to adjust her circumstances. She was discharged from programs for
poor attendance, admitted to using drugs during the pendency of the CINC
case numerous times, and did not comply with approximately 95% of her
required UAs.

 K.S.A. 2017 Supp. 38-2269(c)(2)—The "failure to maintain regular visitation,
contact or communication with the child or with the custodian of the child."
Mother only had three visits with N.A.K. and L.D.K. in approximately 17
months because she could not or would not comply with KVC's color code UA
system.

 K.S.A. 2017 Supp. 38-2269(c)(3)—The "failure to carry out a reasonable plan
approved by the court directed toward the integration of the child into a
parental home." Mother failed to make even minimal progress on her case plan
and completed only two of her eleven case plan tasks—scheduling a RADAC
assessment and completing a RADAC assessment. Even though she claimed
she had housing and a job during the entire case—with the exception of a
couple of weeks—she failed to provide any of the required housing or income
documentation to KVC.

Mother appears to argue the district court used the incorrect definition of "unfit"
when making its finding that there was clear and convincing evidence to support that
Mother was unfit and unable to properly care for the children. However, Mother cites
cases that discussed the definition of unfitness before the current codification of K.S.A.
2017 Supp. 38-2269. Additionally, her brief does not elaborate as to how the district
court erred in its definition of unfitness. As an issue not briefed by the appellant is
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deemed waived or abandoned, we find that Mother has waived her argument that the
district court used the wrong definition of "unfit" in its findings. See Superior Boiler
Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). Further, when making
its determination of unfitness, the district court considered the factors specifically
enumerated by the Legislature. Therefore, the district court did not apply the wrong
unfitness definition.

Mother also argues that the district court did not consider Dr. Hazel's assessment
when determining that Mother was unfit. However, when reviewing the facts and
testimony presented during the trial, the district judge specifically referenced Dr. Hazel's
testimony:

"[Mother] is in the very early stages of trying to stay away from drug use. That
she's in the early stages of―or early remission on her substance dependence. That
substance abuse affects her stability and ability to parent her children. That was from an
expert in this case. That Dr. Hazel testified substance abuse keeps interfering with her
ability to parent her children. It causes instability to provide a home and provide good
judgment related to her children. Dr. Hazel, I believe, in cross-examination, indicated that
[Mother] recognizes she has substance abuse and it affects her ability to parent her
children, but she can't stay away from drugs. . . . [M]other is capable of parenting her
children, but it's conditioned. She has to do certain things that are recommended, which
includes not using drugs."

Unfortunately, Mother did not demonstrate to the district court that she could
prevent her substance abuse from interfering with her parenting, as she failed to follow
through with her treatment and continued to use drugs during the pendency of the CINC
case. In fact, at trial Mother admitting to using methamphetamine as recently as Mother's
Day—May 14, 2017—a month before trial. Mother now asks us to reweigh Dr. Hazel's
testimony; however, that is not our role. See In re B.D.-Y., 286 Kan. at 705. The district
court did consider Dr. Hazel's testimony in its finding of unfitness.
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After a review of the record, we find there was clear and convincing evidence to
support the district court's finding that Mother was unfit by reason of conduct or conduct
which rendered Mother unable to properly care for the children, and the district court did
not err in this finding.

B. The conduct or condition rendering Mother unfit is unlikely to change in the
foreseeable future.

Clear and convincing evidence must support the district court's finding that the
conduct or condition rendering Mother unfit is unlikely to change in the foreseeable
future. K.S.A. 2017 Supp. 38-2269(a). "The 'foreseeable future' should be viewed from
the child's perspective, not the parents', as time perception of a child differs from that of
an adult." In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008). See In re L.B., 42
Kan. App. 2d 837, 842, 217 P.3d 1004 (2009), rev. denied 289 Kan. 1278 (2010)
("[C]ourts must strive to decide these cases in 'child time' rather than 'adult time.'").
Finally, Mother's past conduct may be used as an indicator of her 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, 2015
WL 2343435, at *8 (Kan. App.) (unpublished opinion), rev. denied 302 Kan. 1010 (2015)
("Parental unfitness can be judicially predicted from a parent's past history.").

Based upon "child time," when these facts are viewed in totality, there was
sufficient evidence before the district court to support its finding that there was not a
likelihood that Mother's condition or conduct rendering Mother unfit would change
within the foreseeable future. Although Dr. Hazel testified that Mother would be a
successful parent if she was able to get her addiction to methamphetamine under control,
Mother was using as recently as a month before trial. She was given several opportunities
for treatment, yet she did not avail herself of any of these opportunities and was
discharged for failure to attend. Mother testified that she focused on her housing and job
rather than her treatment, yet she failed to provide any documentation either to KVC or at
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trial that she was in fact employed and had adequate housing. Further, when considering
child time, Mother has struggled with drug addiction for the entirety of N.A.K. and
L.D.K.'s lives; in fact, her addiction struggle began in 2011, even before the boys were
born. At the time of trial, L.D.K. had spent one-third of his life in foster care and N.A.K.
had spent two-thirds of his life in foster care. Finally, Mother's past actions may be used
to predict her future behavior, and Mother's history with drugs, as recently as a month
before trial, indicate that her failure to commit to her treatment would not change. See In
re Price, 7 Kan. App. 2d at 483. In the perspective of the children's time, there was
sufficient evidence to support the district court's finding that the conduct and conditions
rendering Mother unfit were unlikely to change in the foreseeable future.

C. Termination of Mother's parental rights is in the best interests of the children.

Finally, a district court must determine whether termination of parental rights is in
the best interests of the child. K.S.A. 2017 Supp. 38-2269(g)(1). "[T]he district court is in
the best position to make findings on the best interests of the child, and its judgment will
not be disturbed in the absence of an abuse of judicial discretion." In re K.P., 44 Kan.
App. 2d 316, 322, 235 P.3d 1255 (2010), rev. denied October 7, 2010. When considering
whether terminating parental rights is in the best interests of the child, the "court shall
give primary consideration to the physical, mental and emotional health of the child."
K.S.A. 2017 Supp. 38-2269(g)(1). A judicial action constitutes an abuse of discretion if
(1) no reasonable person would take the view adopted by the trial court; (2) is based on
an error of law; or (3) is based on an error of fact. Wiles v. American Family Life
Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015).

"'[A] child should not have to endure the inevitable to its great detriment and harm in
order to give the mother an opportunity to prove her suitability. . . . The law does not
require the court to experiment with the child's welfare to see if he will suffer great
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detriment or harm.'" In re Price, 7 Kan. App. 2d at 480 (quoting In re East, 32 Ohio
Misc. 65, 69, 288 N.E.2d 343 [1972]).

Here, Mother has failed to establish that the district court abused its discretion in
finding it in N.A.K. and L.D.K.'s best interests to terminate Mother's parental rights.
Although this is a difficult case because Mother has the skills to parent, she continues to
let her drug addiction interfere with those skills. The sad truth is Mother continues to use
illegal drugs and is not taking advantage of the treatment opportunities provided to her.
Additionally, the KVC case manager testified that in her professional opinion termination
was in the best interests of the children because Mother had failed to make even minimal
progress on her reintegration plan. In considering N.A.K. and L.D.K.'s best interests, the
district court held:

"The Court deems it is important and imperative that these children find
permanence and nurturing, stable homes in order to provide them with structure,
guidance, love, support, medical and psychological treatment. Those needs can best be
provided by parents or parental figures that place the children's needs above their own.

"This Court finds it is in the children's best interest to terminate mother's parental
rights, because she has not now nor will ever be capable of providing the level of care
sufficient for her emotional, physical―or their emotional, physical, and psychological
health."

Mother argues that the district court should have granted a permanent
custodianship instead of terminating her parental rights, yet she fails to provide any legal
support for this argument; she simply states that such an arrangement would have
allowed her to continue to have contact with her children. However, "'a child should not
have to endure the inevitable to its great detriment and harm in order to give the mother
an opportunity to prove her suitability.'" In re Price, 7 Kan. App. 2d at 480. The district
court took into consideration the emotional, physical, and psychological needs of the
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boys, their need for permanence in a stable home, and the recommendations of the
professionals closest to the case. Based on the entirety of the record on appeal, the district
court did not abuse its discretion in holding that termination of Mother's parental rights
was in the best interests of N.A.K. and L.D.K., and the district court did not err in
terminating Mother's parental rights.

Affirmed.