In re N.M.D.

1

NOT DESIGNATED FOR PUBLICATION

No. 118,602

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of N.M.D.,
A Minor Child.


MEMORANDUM OPINION

Appeal from Allen District Court; TOD MICHAEL DAVIS, judge. Opinion filed April 27, 2018.
Affirmed.

Sue DeVoe, of DeVoe Law LLC, of Osage City, for appellant natural father.

Jacqie Spradling, assistant county attorney, for appellee.

Charles H. Apt III, guardian ad litem.

Before BRUNS, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: In May 2015, the district court adjudicated N.M.D.—who was born
in 2011—to be a child in need of care. Just prior to the final termination hearing in July
2017, N.M.D.'s natural mother voluntarily relinquished her parental rights, and she is not
a party to this appeal. After the hearing, the district court terminated the parental rights of
J.D., the natural father of N.M.D. Specifically, the district court found J.D. to be an unfit
parent and that the unfitness was unlikely to change in the near or foreseeable future.
Moreover, the district court concluded that the termination of J.D.'s parental rights would
be in the best interests of N.M.D. On appeal, J.D. contends that there is not substantial
and compelling evidence in the record to support the district court's findings and
conclusions regarding unfitness. Finding that clear and convincing evidence in the record
supports the district court's decision, we affirm.
2

FACTS

N.M.D.—who was about 3 years old at the time—was taken into protective
custody in February 2015. The State's child in need of care petition identified three events
that occurred in January and February 2015:

 First, that law enforcement officers had executed a search warrant at the
home of N.M.D.'s natural parents and located drug paraphernalia, residual
illegal narcotics, and bottles of prescription medication that were not
prescribed to any of the residents of the home;
 Second, that N.M.D.'s natural mother had been arrested on DUI charges;
and,
 Third, J.D. had been arrested for violating a protection from abuse (PFA)
order that N.M.D.'s natural mother had obtained against him.

The district court adjudicated N.M.D. as a child in need of care in May 2015.
Shortly thereafter, KVC Behavioral Health Systems developed a case plan for J.D. that
included maintaining employment, living in appropriate housing, completing UAs when
requested, and completing evaluations for mental health and substance abuse. The case
plan also included a requirement that J.D. complete an anger management program and a
batterer's intervention program because of his history of domestic violence.

At the time the district court held the first permanency hearing in November 2015,
it found that J.D.'s progress on his case plan was inadequate. In May 2016, the State filed
a motion to terminate the parental rights of both natural parents, relying on several
subsections of K.S.A. 2015 Supp. 38-2269 and a presumption of unfitness in K.S.A. 2015
Supp. 38-2271 because N.M.D. had been in out-of-home placement for over one year. At
the first termination hearing in June 2016, the district court did not sever J.D.'s rights but
instead granted him 60 days to continue to work on his case plan.
3

Several months passed before the State filed a second motion to terminate J.D.'s
parental rights in March 2017. The district court held a final termination hearing over the
course of two days in July 2017. At that time, N.M.D.'s natural mother voluntarily
terminated her parental rights.

At the final termination hearing, J.D. admitted that there was a history of domestic
violence between him and N.M.D.'s natural mother. He also admitted that he had anger
issues. In addition, there was evidence presented at the hearing that J.D. had a significant
criminal history that includes convictions for domestic battery in December 2014,
violation of a protective order and theft in January 2015, and for domestic battery in
September 2015. Moreover, because of an aggravated sexual battery conviction in 2000,
he is a registered sex offender.

The State also presented evidence that in October 2016, while this case was
pending, a woman in a relationship with J.D. filed a police report stating that he had
come to her house, broken out a window, and attempted to bust in the door. J.D. did not
report the incident to KVC. The charge was pending at the time of the final termination
hearing. The police report stated that the woman was also concerned with the way J.D.
acted toward her children, a teenage daughter and older son.

Additionally, there was evidence presented that J.D. had used drugs—including
methamphetamine—for about seven years prior to the filing of this action. He had
criminal convictions relating to the use and distribution of methamphetamine. In addition,
J.D. admitted to using methamphetamine between the first termination hearing in May
2016 and the final hearing in July 2017—once in November 2016 and again in January
2017. Moreover, lab results admitted as exhibits in this case reveal that in December
2016 and February 2017, J.D. provided urine samples that were diluted, resulting in him
being discharged from a drug treatment program. At the time of the final termination
hearing, J.D. was on probation for distribution of methamphetamine.
4

According to the evidence presented at the final termination hearing, J.D. was
initially making progress in complying with the terms of his case plan. In particular, he
obtained a mental health evaluation; attended one therapy session; completed a drug and
alcohol evaluation; completed the required parenting class and six additional hours of
parenting training; and applied for a job. However, J.D.'s case manager, Angela Black,
testified that after three to four months of compliance in 2015, "it all basically went to
heck in a handbasket."

Specifically, in July 2015, J.D. was arrested for domestic assault and battery
against N.M.D.'s natural mother. As a result, he was incarcerated from July to September
2015. While J.D. was incarcerated, the natural mother obtained a Protection from Abuse
(PFA) order against J.D. Because the PFA order also prevented J.D. from having contact
with N.M.D., J.D.'s visits with him were suspended until December 2015. Black also
testified that in early 2016, J.D. was again making progress working on his case plan.
Unfortunately, he again fell out of compliance and evidently went "AWOL" from March
2016 to June 2016. During that period, no UAs were performed and no case plan tasks
were performed. Furthermore, Black testified that J.D. failed to complete several of the
tasks in his most recent case plan in the seven months between the first termination
hearing and the final termination hearing.

Another case manager, Amy Boaz, worked with J.D. for six weeks in March and
April 2017. At the final termination hearing, she testified that during that time, J.D. made
significant progress working on his case plan. Boaz also opined that there was a
substantial probability that—given more time and continued effort—J.D. could complete
the tasks required by the case plan. However, she acknowledged that J.D.'s history of
drug use might "possibly" prevent him from being able to care for the needs of N.M.D. in
the future.

5

When asked if she concurred with KVC's recommendation that J.D.'s parental
rights be terminated, Boaz testified that, if she only considered the six weeks she was on
the case, she would not concur. Nevertheless, Boaz testified that considering the entire
case, she would concur with the recommendation to terminate. A final case manager,
Fawn Gahman-Anos, was on the case for the 10 weeks prior to the final termination
hearing. She testified that J.D. had not completed the tasks required by his case plan.
Likewise, she testified that J.D. had only started working on several of the tasks within
the two weeks prior to the hearing.

Subsequently, the district court entered an order on August 17, 2017 terminating
J.D.'s parental rights. In its Order Finding Parent Unfit and Granting Termination of
Parental Rights, the district court found "by clear and convincing evidence that the
natural father is presumed, in a manner provided for in K.S.A. § 60-414(a), to be unfit
because the child has been in an out-of-home placement, under court order, for a
cumulative total period of greater than two years. . . ." Citing K.S.A. 2017 Supp. 38-
2271(a)(5), the district court also found that J.D. had "neglected or willfully refused to
carry out a reasonable plan, approved by the court, directed towards reintegration of the
child into the parental home, and that there is a substantial probability that [he] will not
carry out such plan in the near future."

The district court's order went on to find clear and convincing evidence that J.D. is
an unfit parent under several subsections of K.S.A. 2017 Supp. 38-2269. However, the
district court noted that J.D. had presented evidence of "recent positive actions" that he
had taken as well as his rehabilitation efforts. According to the district court, had it only
looked at the events of recent months, it might have ruled differently. Nevertheless, the
district court found that it was required to consider evidence "over the entire span of this
case." Accordingly, the district court found that J.D. had failed to "rebut the presumption
of unfitness" articulated in the order. Finally, the district court concluded termination of
J.D.'s parental rights would be in the best interests of N.M.D.
6

ANALYSIS

Standard of Review

A parent has a fundamental liberty interest in the relationship with his or her child.
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). K.S.A.
2017 Supp. 38-2269(a) imposes the burden upon the State to prove the allegations of
conduct that form the basis for termination of parental rights by clear and convincing
evidence. See Kramer, 455 U.S. at 769-70. On appeal, we review all of the evidence in
the record on appeal—in the light most favorable to the State—to determine, whether a
rational fact-finder could have found that there was clear and convincing evidence to
support the district court's determination. In re B.D.-Y, 286 Kan. 686, 705, 187 P.3d 594
(2008). In reviewing the district court's decision, we may not reweigh the evidence or
make determinations regarding the credibility of witnesses. 286 Kan. at 705.

Presumption of Unfitness Under K.S.A. 2017 Supp. 38-2271

In the present case, the district court found that the State had proved that J.D. was
presumptively unfit pursuant to K.S.A. 2017 Supp. 38-2271(a)(5) and unfit under four of
the bases listed in K.S.A. 2017 Supp. 38-2269. A presumption of unfitness arises if the
State proves, by clear and convincing evidence, any of the circumstances listed in K.S.A.
2017 Supp. 38-2271(a). However, a parent may rebut the presumption by establishing—
by a preponderance of the evidence—either that he or she is a fit parent or that he or she
will become a fit parent within the near future. If the parent fails to rebut the
presumption, K.S.A. 2017 Supp. 38-2271(b) provides that the district court shall
terminate parental rights.

The district court found that a presumption of unfitness arose because N.M.D. had
been in an out-of-home placement by court order for more than two years. Moreover, the
district court found that J.D. had substantially neglected or willfully refused to carry out a
7

reasonable case plan directed toward reintegration of N.M.D. into the parental home, and
that there was a substantial probability that he would not fulfill the terms of the case plan
in the near future. We note that the district court incorrectly cited K.S.A. 2017 Supp. 38-
2271(a)(5), which applies when the child has been in out-of-home placement for more
than one year. Because N.M.D. had been in out-of-home placement for more than two
years by the time of the final termination hearing, K.S.A. 2017 Supp. 38-2271(a)(6)
would be applicable.

There is a significant difference between the two statutory provisions. On the one
hand, K.S.A. 2017 Supp. 38-2271(a)(5) requires the State to prove that the parent "has
substantially neglected or willfully refused to carry out" a reasonable reintegration plan.
(Emphasis added.) On the other hand, K.S.A. 2017 Supp. 38-2271(a)(6) simply requires
the State to prove that the parent "failed to carry out" a reasonable reintegration plan and
that there is a substantial probability that the parent will not carry out such a plan in the
near future. (Emphasis added.) K.S.A. 2017 Supp. 38-2271(a)(6)(B),(C). Because the
statutory provision mistakenly applied by the district court required the State to prove
more than what it was required to prove under the correct statutory provision, we do not
find that J.D. was prejudiced by this mistake.

A review of the record on appeal reveals that J.D.'s case plan included, among
other things, obtaining evaluations for mental health and alcohol and drug abuse,
providing UAs when requested, remaining drug free, providing pay stubs verifying
employment and income, maintaining housing adequate for reintegration, and completing
a batterer's intervention program. Although J.D. argues that he was in compliance with
these tasks by the time of the hearing, he mischaracterizes the evidence. For example,
confirmation of enrollment in a batterer's intervention program is not the same as
confirming completion of the program. In fact, the program in which J.D. enrolled
evidently started around July 1—less than two weeks prior to the July 13 termination
hearing.
8

Based on J.D.'s history, we find his failure to complete a batterer's intervention
program to be significant. The record reflects that J.D. was "kicked out" of a domestic
violence offender program administered through the Kansas Attorney General's office in
November 2016 because he refused to accept responsibility for his actions. Instead, he
blamed the victim in each case—including the victim in the aggravated sexual battery
case that resulted in him being required to register as a sex offender. Kim Bowers, the
executive director of Solid Ground Treatment Center, testified at the final termination
hearing, "Yes, he attended, but no, he did not make progress."

The record also reflects that N.M.D. has exhibited awareness of J.D.'s violence
toward women. The aunt with whom N.M.D. was temporarily placed reported that he had
witnessed J.D. harming his natural mother. Moreover, J.D. admitted that N.M.D. had
been present when some of the domestic violence incidents with the natural mother
occurred and that N.M.D. had witnessed his parents arguing. Moreover, a KVC family
support worker reported that during J.D.'s supervised visits with N.M.D., she observed
play that caused her concern. Although the district court noted the "recent positive
actions" taken by J.D., it found this did not offset his past actions and relapses during the
course of this termination of parental rights action.

Likelihood of Change

The last requirement to establish a presumption of unfitness under K.S.A. 2017
Supp. 38-2271(a)(6) is that there is a substantial probability that J.D. will not carry out
the reintegration plan in the near future. K.S.A. 2017 Supp. 38-2271(a)(6)(C). This
element parallels the element of "likelihood of change in the foreseeable future" in
K.S.A. 2017 Supp. 38-2269. What constitutes the "near" or "foreseeable" future must be
considered from a child's perspective—not the parent's perspective—because the time
perception of a child differs from that of an adult. See In re S.D., 41 Kan. App. 2d 780,
790, 204 P.3d 1182 (2009). In other words, children deserve to have a final resolution
9

within a time frame that is appropriate from their sense of time. In re A.A., 38 Kan. App.
2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008).

The present action was pending for two and a half years before the final
termination hearing—about half of N.M.D.'s life. Moreover, "continued unfitness [in the
future] can be judicially predicted from a parent's past history." In re Price, 7 Kan. App.
2d 477, 483, 644 P.2d 467 (1982). Based on our review of the record, we noted that
during the two and a half years this action has been pending, J.D.'s has had short periods
of compliance followed by periods of non-compliance. The State produced clear and
convincing evidence that while this action was pending, J.D. has continued to use drugs
and commit domestic violence at different points. Accordingly, we conclude that a
reasonable fact-finder could find based on the evidence in the record on appeal that it is
highly probable that J.D. will not carry out the reintegration plan in the near future.

Findings of Unfitness Under K.S.A. 2017 Supp. 38-2269

In addition to finding the presumption of unfitness was proved, the district court
also found that the State had proved by clear and convincing evidence that J.D. is unfit to
parent based on four other statutory grounds. Specifically, the district court found four
sections of K.S.A. 2017 Supp. 38-2269 to be applicable to J.D. Pursuant to K.S.A. 2017
Supp. 38-2269(f), any one of them, standing alone, may be a sufficient to support a
termination of parental rights.

We first discuss K.S.A. 2017 Supp. 38-2269(c)(3), failure to carry out a
reasonable case plan approved by the district court directed toward the reintegration of
the child into the parental home. We find that the evidence set out above regarding the
presumption of unfitness under K.S.A. 2017 Supp. 38-2271(a)(6) also proves this ground.
Although J.D. made efforts to comply with his case plan, there is clear and convincing
evidence in the record to support the district court's conclusion that he failed to do so.
10

The district court also found that J.D. is unfit based on his lack of effort to adjust
his circumstances, conduct, or conditions to meet the needs of the child. K.S.A. 2017
Supp. 38-2269(b)(8). Again, we find the evidence cited above supports this conclusion.
There is clear and convincing evidence in the record that J.D. continued to use drugs and
to commit crimes while this action was pending. Likewise, there is clear and convincing
evidence in the record that J.D. did not successfully complete the first domestic violence
offender program he attended and did not seek to enter another program until shortly
before the final termination hearing.

The district court also found unfitness under K.S.A. 2017 Supp. 38-2269(b)(7).
Specifically, the district court found that reasonable efforts by public or private agencies
to rehabilitate the family were unsuccessful. Based on review of the record, we find that
there is clear and convincing evidence to support this finding. Although several case
managers worked with J.D. and the natural mother, their efforts were not successful.

In light of our conclusions regarding the other findings of unfitness made by the
district court, it is unnecessary for us to address the finding that J.D. failed to pay a
reasonable portion of the cost of substitute physical care and maintenance based on
ability to pay under K.S.A. 2017 Supp. 38-2269(c)(4).

We also recognize that K.S.A. 2017 Supp. 38-2269(a) requires the State to prove
that the unfitness is unlikely to change in the foreseeable future. This analysis is the same
as the "near future" analysis in the discussion of K.S.A. 2017 Supp. 38-2271.
Accordingly, for the reasons stated previously in this opinion, we also conclude that the
State met its burden to prove that J.D.'s unfitness is unlikely to change in the foreseeable
future.



11

Best Interests of the Child

When a district court finds a parent unfit under either K.S.A. 2017 Supp. 38-2271
or K.S.A. 2017 Supp. 38-2269, it must also consider whether termination of parental
rights is in the best interests of the child. In making this determination, the district court is
to give primary consideration to the physical, mental, and emotional health of the child.
K.S.A. 2017 Supp. 38-2269(g)(1). The district court is in the best position to make
findings on the best interests of the child, and its judgment will not be disturbed unless it
abused its judicial discretion. In re K.P., 44 Kan. App. 2d 316, Syl. ¶ 4, 235 P.3d 316,
rev. denied October 20, 2010.

As indicated above, N.M.D. was exposed to domestic violence and other anger
issues involving his natural parents. This is not only harmful to the mental and emotional
health of the child but can also put a child's physical health at risk. Moreover, one of the
case managers who worked with the family testified that it would be in N.M.D.'s best
interests to have permanency instead of further delay. Hence, we conclude that the
district court's determination that the termination of J.D.'s parental rights is in the best
interests of N.M.D. was reasonable based on the clear and convincing evidence in the
record on appeal and did not constitute an abuse of discretion.

We, therefore conclude, based on our review of the evidence presented at the final
termination hearing—viewed in the light most favorable to the State—that a rational fact-
finder could have found J.D. to be an unfit parent by clear and convincing evidence.
Furthermore, we conclude that the district court did not err in finding that J.D.'s parental
rights should be terminated. Accordingly, we affirm the district court's decision.

Affirmed.