In re Z.L.M.

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NOT DESIGNATED FOR PUBLICATION

No. 116,903

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of Z.L.M. and Z.M.M.,
Minor Children.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DANIEL T. BROOKS, judge. Opinion filed July 28, 2017.
Affirmed.

Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellant natural mother.

Laura E. Poschen, of Wichita, for appellant natural father.

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

Before BUSER, P.J., MALONE, J., and HEBERT, S.J.

Per Curiam: M.M. (Father) and S.L.T. (Mother) jointly appeal the district court's
decision terminating their parental rights of their minor twin children born in 2012,
Z.M.M., a male, and Z.L.M., a female. Father and Mother argue that the State failed to
present sufficient evidence to support the district court's decision. Specifically, they argue
that the State failed to establish that it made reasonable efforts towards reintegration of
the family. They also argue that the State failed to present sufficient evidence to prove
that their unfitness was unlikely to change in the foreseeable future. Finally, Father
contends that the district court erred in finding that termination of his parental rights was
in the best interests of the children. Based upon our thorough review of the record on
appeal, we affirm the district court's judgment.

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FACTUAL AND PROCEDURAL BACKGROUND

This case began in 2013 when the State filed a child in need of care (CINC)
petition for the children due to concerns about Mother's drug use and that she was in and
out of jail. At the time of the initial CINC petition, the children were in Mother's custody
and Father—a convicted felon—was incarcerated. Mother was referred to Family
Preservation Services but efforts toward reintegration were unsuccessful. Ultimately,
Father was released from custody and completed all of his court orders. Accordingly, the
case was closed in February 2015, and the children were reintegrated with Father.

On November 7, 2015, at approximately 5:20 a.m., Officer H.R. Huhman of the
Wichita Police Department responded to the home of Z.M.M. and Z.L.M.'s paternal
grandmother for a reported domestic violence disturbance. Huhman noticed Father
sleeping in a vehicle outside of the house with the two children. Father told Huhman that
he had been locked out of the residence because the owner did not want him there.
Huhman then ran a background check on the vehicle and learned that it had been reported
stolen on October 12, 2015, and Father was the suspect.

Father was arrested and a search of the car revealed drug paraphernalia, knives,
counterfeit money, and a "sawed off" shotgun. Inside the residence, officers observed that
there was no place for Z.M.M. and Z.L.M. to sleep and no one was willing to take the
children. Father informed the officers that the children's mother was incarcerated at the
Sedgwick County jail. Huhman placed Z.M.M. and Z.L.M. in police protective custody
due to their parents being unable to provide proper physical or mental care.

On November 9, 2015, social worker Kena Battle interviewed Father at the jail.
Father told Battle that on the night of his arrest, he and the children were sleeping in his
car because when he tried to enter his mother's residence, his brother called the police.
When asked about the car, Father said that he had been renting the vehicle but someone
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else had stolen it a week earlier. However, Father was unable to provide the name of the
rental company, nor had he filed a police report that the car was stolen. Finally, Father
told Battle that it would be best if the children were placed with his brother and sister.

Battle also interviewed Mother at the jail. Mother told Battle that she had been
incarcerated at the jail for approximately 2 months after being arrested for possession of
illegal substances; she stated that she was facing a 99-month sentence. Mother recounted
that her children previously had been in the State's custody, but when they were released
to Father, Father let her see the children every few weeks.

On November 10, 2015, Battle filed another application for a CINC petition based
on her concerns about both Mother and Father being in jail, the lack of stability for the
children, Mother's drug use, and the gun and drugs found in Father's car. On November
12, 2015, the State filed a CINC petition and motion for finding of unfitness and
termination of parental rights. That same day, a temporary custody hearing was held;
Mother appeared but Father did not, although he had been notified of the hearing. The
district court found that it was in the best interests of Z.M.M. and Z.L.M. to remain in
temporary State custody in an out-of-home placement.

In December 2015, Mother attended a case plan meeting and developed a
reintegration plan with St. Francis Family Services. Mother was no longer incarcerated at
that time. However, on February 9, 2016, Mother tested positive for methamphetamine
and her probation was revoked. According to Mother, she was to remain incarcerated
until a bed was available at an inpatient treatment center.

The termination hearing was held on March 28 and 29, 2016. At the time of the
hearing, Mother was incarcerated at the jail. Father had been out of jail for a week at the
time of the termination hearing. Z.L.M.'s therapist, Hannah Van Horn, testified first. Van
Horn stated that she began seeing Z.L.M. in January 2016 after Z.L.M. made allegations
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of sexual abuse against Father. Van Horn diagnosed Z.L.M. with adjustment disorder
stemming from Z.L.M.'s difficulty in adjusting to the changes in her environment.
Specifically, Van Horn testified that Z.L.M. was having trouble sleeping, exhibiting
boundary issues, and having temper tantrums where she would bite and scratch herself.
Van Horn stated that Z.L.M's prognosis was good as long as she remained in a stable
home with a consistent place to live, income, and caregiving.

Battle testified next. She stated that in 2013, she filed a CINC application for
Z.M.M. and Z.L.M. when they were residing with Mother based on concerns about
Mother's drug use and her being in and out of jail. Father was incarcerated during this
time. After she filed the CINC application, Battle explained that she no longer had
contact with either Mother or Father until she filed the most recent CINC application in
2015. When asked at the time of filing the application whether she believed the children
were in need of care, Battle became emotional and started to cry. She explained that she
was upset because this was a termination hearing; she had had no contact with the family
after filing the CINC application, and she was surprised that Z.M.M. and Z.L.M. were not
reintegrated with their parents or placed with relatives. Battle did, however, make clear
that after the temporary custody hearing, she had no contact with the family and had no
information about the progress of either Father or Mother. Battle confirmed that when she
filed the CINC application, neither Father nor Mother were able to parent the children.

Mother testified next. She stated that she had been residing at the jail since her
probation was revoked because a UA revealed the presence of methamphetamine. Mother
admitted to last using methamphetamine on March 12, 2016. She testified that she was
unsure when she was going to be released and that she was waiting on a bed at an
inpatient treatment center. Mother testified that she has five children, including one child
she gave up for adoption in 2014. Mother recalled the 2013 CINC case and that Z.M.M.
and Z.L.M. were removed from her home because of her drug use and her inability to
keep a stable home. She acknowledged that she did not complete her court orders in that
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case and that the children were placed in the custody of Father. Mother stated that prior to
her most recent probation revocation, she was living off and on with a friend. Father
allowed her to see the children whenever she wanted to see them. Mother stated that she
started going to outpatient treatment at the Miracles treatment center in January 2016.

Mother also testified that she previously had attended four drug treatment
programs, but she only completed two successfully; her last successful treatment was in
2012. Mother acknowledged that she did not initially think she needed inpatient treatment
but changed her mind after experiencing a relapse in January 2016. Mother stated that she
relapsed because of the stress of the CINC case and the possible termination of her
parental rights. She also stated that she lacked a support system and that also contributed
to her relapse. Mother believed that she would not relapse if she attended inpatient
treatment because she would use the tools she learned and find a support system.

Finally, Mother stated that she would successfully maintain her sobriety because
she believed she was facing an 8-year prison sentence if she failed to do so. Specifically,
Mother told the court that she had served 2 months of a 3-year probation sentence with
community corrections that had an underlying sentence of 8 years' imprisonment based
upon her drug conviction. Mother also informed the court that she was serving another
term of probation for traffic offenses, and her current incarceration was because she
failed a UA and violated the terms of that probation. Mother explained that the
consequences of that failure was that she had to attend inpatient treatment. Mother's plan
after completing inpatient treatment was to live with her mother, a recovering addict, in a
one-bedroom home. Mother also planned on getting a job but stated that she was last
employed in 2012 for a period of 2 months. Prior to that, she had a job as a maid for 2
years when she was 16; Mother was currently 29 years old. The longest period of time
Mother had cared for Z.M.M. and Z.L.M. since the last CINC case was for a few days.

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Susan Summers, Mother's addiction counselor at Miracles outpatient treatment
center, testified next. Summers began working with Mother in December 2015 when she
was admitted to outpatient treatment. Summers was aware that Mother's children were in
State custody. In February 2016, Summers recommended inpatient treatment for Mother
because of the level of her use of methamphetamine. Summers testified that Mother was
frequently absent from therapy sessions while in outpatient treatment.

Father testified next. He stated that he currently was living with his brother, but he
planned to start working and find housing. Father testified that when the children were
reintegrated with him after the prior CINC case, they were living in a house next to his
mother's home. He moved in August 2015, however, because a sewer line collapsed and
the landlord refused to fix it. After that, Father explained, he and the children stayed in
various hotels for the next few months.

Father stated that his mother would allow Z.M.M. and Z.L.M. to sleep at her
home, but Father would have to leave and return in the morning. The children slept in the
living room on the couch. Father also testified that on the night the children were placed
in police protective custody, they were sleeping in the car because his brother had refused
to let them inside his mother's house. According to Father, after the police arrived, he was
arrested on a municipal warrant for a failure to appear. He was also charged with new
crimes because the police found a firearm in the trunk as well as drugs. Father pled guilty
to those charges. Father also stated that he had a criminal case for firearm and drug
charges from 2015 and that case was consolidated with his 2016 case. Father testified that
he was awaiting sentencing in both cases at the time of the termination hearing.

Father also testified that he did not contact his children after they were placed in
police protective custody because he knew he had active warrants and was afraid if he
tried to visit them, he would be arrested. He also stated that he missed the temporary
custody hearing because Battle was unable to reach him to inform him of the date
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because his phone had been stolen. Father stated that he had been incarcerated three times
between the filing of the 2013 CINC petition and the time of the termination hearing. He
also indicated that he used marijuana prior to his arrest in January.

Christy Hannon, a St. Francis Community Services family support worker
assigned to the case, testified next. Hannon testified that Mother's first supervised
visitation with the children occurred in December 2015. Hannon did not have any
concerns about the way Mother interacted with the children. However, Mother was not
always on time, she cancelled two visits and rescheduled three visits. Hannon had never
supervised a visitation between Father and the children because at the beginning of the
case they were unaware of Father's location and, when they did locate him in January
2016, he was in jail. The children never spoke about Father during any of the visits
Hannon supervised. Hannon testified that in order for Mother's interactions to no longer
be supervised, she would have to test clean for methamphetamines and start complying
with the court orders. Mother also would have to have her own housing, employment,
and ensure that the children would attend preschool or kindergarten.

As to Father, Hannon stated that in order to move forward with visitation, Father
would have to engage in court orders and services, obtain a clinical assessment, a
substance abuse evaluation, and a UA and hair follicle test. Hannon recalled meeting with
Father at the jail in February 2016. To her knowledge, Father never requested visitation
with his children, and he never contacted St. Francis to inquire about his children.
Hannon stated that St. Francis' policy is not to have parents arrested on warrants during
visitation and she had never denied visitation to a parent because of an active warrant.

Ursula Machutta, Father's sister-in-law, testified that Father had been staying with
her and her husband for about 3 or 4 days since his release from jail. Father's mother,
Patricia Machutta, testified that Father was not allowed to stay the night at her house, but
she would take the children and let them sleep on the couch. She stated that on the night
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the children were placed in police protective custody, she had called the police because
she had been in an argument with Father and would not allow him into the house.

Finally, Heather Wood, the St. Francis case manager assigned to the case,
testified. Wood testified that she met with Mother on December 3, 2015, to go over the
court orders and the case plan. She stated that the case plan was influenced by the 2013
CINC case because they looked at the patterns of behavior and recurring issues that
needed to be addressed in order to return the children to their parents. The Mother's case
plan focused on the court's drug and alcohol-related orders because of Mother's extensive
history of methamphetamine use. Wood opined that she was concerned about Mother's
ability to maintain her sobriety. To recommend reintegration, Wood stated that Mother
would need to get a job, go to inpatient treatment, and maintain sobriety for at least 6
months. Mother also would need to develop a support network, attend AA and NA
meetings, seek individual counseling, and not have any more violations of her probation.

Regarding Father, Wood testified that to recommend reintegration, they would
have to address the open investigation into the allegations of sexual abuse against him.
He would also need to complete a psychological evaluation, obtain stable housing, obtain
stable employment, take a parenting class, undergo a substance abuse evaluation, and
complete UAs and hair follicle testing. Wood acknowledged the short timeframe of this
case but explained that because this was not a first-time case, they were looking at
patterns and secondary changes from the first case to the second case. Wood stated that
they also considered "child time" when recommending termination of parental rights
because of the children's need for stability and permanency and the significant amount of
time the children already had spent in the foster care system.

Wood opined that Mother had not shown her ability to care for her children
because the issues in the 2013 case were still present in this case. Specifically, Mother
was still using methamphetamine and she still demonstrated a lack of judgment as shown
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by her frequent incarcerations. As to Father, Wood also believed him unable to care for
his children because he was still having legal issues, he was being investigated about
allegations of sexual abuse, and he was only now starting to complete the court orders.
Wood expressed concern that although there was a prior CINC where Father completed
all the court orders, only 9 months later the children were back in police protective
custody. Wood recommended termination of both Father and Mother's parental rights,
stressing the children's need for permanency and stability.

After hearing the evidence and arguments of the parties, the district court
terminated Father and Mother's parental rights, explaining:

"The question is—and, really, in the present circumstances, there is absolutely no
problem for the Court in finding them unfit. Neither one of them is in any position to take
care of these children right now. The question in this case is not really the present but the
future and can we foresee it. . . .
". . . I think the state has borne its burden of showing—and the other case I'm not
taking many details from it at all—the children were Children in Need of Care. Mother
had drug problems. Father had criminal problems.
"The case is the same today. There is no real change in the parents except insofar
as they say and they want me to believe and take them at their word that they mean it
enough that they're going to be able to change themselves in the future.
. . . .
". . . I like you fine, but you've left these kids in a hell of a fix, okay? Literally,
you're in prison. You've been in prison. Both of you—and it's not just the fact that you've
been in prison, it's that for the next several years both of you are going to be at extreme
risk of being whisked away, okay, maybe because of something you did, maybe not;
you're under suspicion.
"But also in your testimony you admit mistakes and you've learned in a way, but
neither of you has yet shown any good judgment. . . .
. . . .
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"Based on your present course of action, I do not see that the state is wrong in
saying that you're unlikely to change in the foreseeable future, and these children need to
change now and they need to start banking on that.
"I'm, therefore, going to find that each of the parents is unfit by reason of conduct
or condition that renders the parent unable to properly care for each of these children, and
that that condition—conduct or condition is unlikely to change in the foreseeable future.
"I am considering all the factors in 38-2269, but it says I'm not limited to
them. Under the area of emotional illness I don't know what lack of judgment is called, it
is a matter of—I don't want to call it Personality Disorder. It is an inability to make sound
choices, so I will find it under subsection (1) giving that interpretation to it.
"With regard to mother, subsection (3), the use of intoxicating liquors or
narcotics of such a duration and nature to render the parent unable to care for the ongoing
needs, subsection (3).
"With regard to subsection (5), the Court adds to that that felony imprisonment—
father is not actually now imprisoned, but his criminal behavior and lack of judgment and
being able to avoid it and the associated risk of continued imprisonment render him
unlikely to be a fit parent in the foreseeable future.
"I am going to find that in all the facts and circumstances of this case, the
shortness of time, the state was not obligated to show a long course of reasonable efforts
on its own part given these parents' history and situation and condition.
"I am going to find that particularly in light of the best interests of the children,
it's best that parental rights be terminated and that I'm giving primary consideration to the
mental and emotional health of the children, and that their right—their interests would be
best served by termination and I am ordering that. I'm placing them in the custody of the
Secretary for permanency."

On April 27, 2016, a journal entry was filed terminating the parental rights. In the
journal entry, the district court found Mother and Father to be unfit under K.S.A. 38-
2269(b)(1); (b)(3); (b)(5) and (b)(7). The district court also found that Mother and
Father's unfitness was unlikely to change in the foreseeable future and that termination of
parental rights was in the best interest of Z.M.M. and Z.L.M. Mother and Father timely
appealed the district court's judgment.

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ANALYSIS

Kansas follows a two-step process to terminate parental rights. First, the court
must find parental unfitness:

"When the child has been adjudicated to be a child in need of care, the court may
terminate parental rights or appoint a permanent custodian when 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. 2016 Supp. 38-2269(a)

If the court makes such a finding, the court then shall consider whether
termination of parental rights is in the best interest of the child. K.S.A. 2016 Supp. 38-
2269(g)(1). Accordingly, the district court here made two separate findings: first, that
both Father and Mother were unfit parents and that unfitness was unlikely to change in
the foreseeable future, and second, that terminating Father and Mother's parental rights
was in the best interests of Z.M.M. and Z.L.M.

The standard of review for the district court's finding of unfitness is well known;
because the district court may only make a finding of unfitness based on clear and
convincing evidence, an appellate court must determine whether clear and convincing
evidence supports the district court's finding. In re R.S., 50 Kan. App. 2d 1105, 1113, 336
P.3d 903 (2014). To do so, the appellate court determines whether the evidence, when
reviewed in the light most favorable to the State, could have convinced a rational
factfinder that the truth of the facts asserted was highly probable. In re B.D.-Y., 286 Kan.
686, 705, 187 P.3d 594 (2008); In re R.S., 50 Kan. App. 2d at 1113. Whether termination
is in the best interest of the child is reviewed for an abuse of discretion because the
district court is in the best position to evaluate the "complexities of the situation" and the
needs of the children. 50 Kan. App. 2d at 1115.

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Is there clear and convincing evidence that Father and Mother were unfit and their
unfitness was unlikely to change in the foreseeable future?

Before terminating parental rights, K.S.A. 2016 Supp. 38-2269(a) requires that a
district court "find[] 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." The idea of "the
foreseeable future" is considered from a child's perspective "because children and adults
have different perceptions of time and children have a right to permanency within a time
frame reasonable to them. [Citations omitted.]" In re M.H., 50 Kan. App. 2d 1162, 1170-
71, 337 P.3d 711 (2014).

K.S.A. 2016 Supp. 38-2269 contains a nonexclusive list of factors a district court
shall consider when making a fitness determination, including any emotional, mental, or
physical illness that renders the parent unable to care for the child; the use of narcotic
"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"; "conviction of a felony and
imprisonment"; "failure of reasonable efforts made by appropriate public or private
agencies to rehabilitate the family"; "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." See K.S.A.
2016 Supp. 38-2269(b)(1), (3), (5), (7), and (8).

Here, the district court found Father unfit under subsection (b)(1) and (5). The
district court found that Father's demonstrated "lack of judgment" was equivalent to an
emotional illness rendering him unable to care for Z.M.M., and that although Father was
not presently incarcerated, he was at a continued risk of imprisonment due to his ongoing
criminal cases. As to Mother, the district court found that her lack of judgment and
"inability to make sound choices" constituted an emotional illness under subsection (1).
The district court found that subsection (3) applied to Mother because of her persistent
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drug abuse. The district court also found that both Father and Mother were unfit under
K.S.A. 38-2269(b)(7), as there was a failure of reasonable efforts made by appropriate
public or private agencies to rehabilitate the family. Finally, the district court found that
based on Father and Mother's failure to address their ongoing issues, their unfitness was
unlikely to change in the foreseeable future.

Father and Mother both argue that there was insufficient evidence to support the
district court's findings of unfitness and that their unfitness was unlikely to change in the
foreseeable future. We agree with both Father and Mother that there was not clear and
convincing evidence that the parents' "lack of judgment" was equivalent to an emotional
illness rendering the parents unable to care for the children. Thus, we agree with Father
and Mother that there was insufficient evidence to support the district court's finding of
unfitness under K.S.A. 2016 Supp. 38-2269(b)(1).

However, as to the district court's remaining findings, we conclude that clear and
convincing evidence supports the district court's determination that Father and Mother
were unfit and that their unfitness was unlikely to change in the foreseeable future. As to
Father, only 9 months after being reintegrated with the children, the police found Z.M.M.
and Z.L.M. sleeping in Father's car—which had been reported stolen—and contained
drug paraphernalia, a "sawed off" shotgun, and counterfeit money. Father was arrested
and pleaded guilty in two felony cases for possession of methamphetamine and criminal
possession of a weapon; he was awaiting sentencing at the time of the termination
hearing. Father also was incarcerated during the initial hearing and failed to have any
contact with Z.M.M. and Z.L.M. while they were in State custody during the pendency of
this matter. At a minimum, there was clear and convincing evidence of Father's unfitness
under K.S.A. 2016 Supp. 38-2269(b)(5).

Moreover, the record demonstrates by clear and convincing evidence that Father's
unfitness was unlikely to change in the foreseeable future. This was the second time his
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children had been adjudicated children in need of care and, between the two proceedings,
nothing had changed. Father continued to demonstrate poor judgment and instability by
failing to have permanent housing and continuing to commit crimes. Furthermore, due to
Father's pending criminal sentencing, he was at high risk for future incarceration.

As to Mother, the record shows an extensive history of drug abuse. Mother failed
to reintegrate with the children because of her drug problems in the first CINC case.
When the children were placed in Father's custody after the first CINC case, Mother still
failed to maintain sobriety. At the time Z.M.M. and Z.L.M. were placed in police
protective custody in the second case, Mother was in jail for drug-related charges. In the
4 months before the termination hearing, Mother had two positive UAs for
methamphetamine, stopped participating in drug treatment, and was incarcerated for a
probation violation for testing positive for methamphetamine. Mother continued to use
drugs even after she was explicitly told that she needed to remain sober in order to retain
her parental rights. There was clear and convincing evidence of Mother's unfitness under
K.S.A. 2016 Supp. 38-2269(b)(3) because of her drug usage and that her unfitness was
unlikely to change in the foreseeable future.

Did the State make reasonable efforts towards reintegration?

In the journal entry of judgment, the district court found both Father and Mother to
be unfit under K.S.A. 2016 Supp. 38-2269(b)(7) based on failure of reasonable efforts
made by appropriate public or private agencies to rehabilitate the family. Father and
Mother both argue that there was insufficient evidence to support this finding.
Specifically, both Father and Mother argue that the State failed to make reasonable
efforts towards reintegration. They contend that the 4 months afforded to them to comply
with their case plans was an insufficient amount of time, so there was insufficient
evidence that their unfitness was unlikely to change in the foreseeable future.

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The State points out that this was the second CINC case filed against the parents in
2 years. The State also points out that during the time afforded for reintegration in the
second case, both parents repeatedly failed to comply with the reintegration plan.
Accordingly, the State argues that it made reasonable efforts towards reintegration even
though it only afforded Father and Mother 4 months to do so.

As the State points out, while the revised Kansas Code for Care of Children
requires the appropriate agencies to expend reasonable efforts towards reintegrating
children with their parents, it does not require them to make "a herculean effort to lead
the parent through the responsibilities of the reintegration plan. [Citation omitted.]" See
In re B.T., No. 112,137, 2015 WL 1125289, at *8 (Kan. App. 2015) (unpublished
opinion). Here, there was clear and convincing evidence over the course of the two CINC
cases that the State had made reasonable efforts to rehabilitate the family and those
efforts failed.

Regarding Father, the State made an adequate effort towards reintegration, but it
was Father's incarceration that prevented him from completing the reintegration plan.
Father failed to provide stable housing for the children and they were found living in a
car when the second CINC case was initiated. The testimony at trial revealed that Father
would have to complete at least eight tasks before reintegration could possibly occur. The
children had already spent more than half their lives in the foster care system and had
been returned to state custody a mere 9 months after the last time they were reintegrated
with Father. Father's behavior between the two proceedings showed he had made no
changes; the district court was justified in finding that waiting for Father to attempt to
complete his lengthy list of tasks was too much to ask of Z.M.M. and Z.L.M. See In re
D.T., 30 Kan. App. 2d 1172, 1175, 56 P.3d 840 (2002).

The same reasoning applies to Mother. The State attempted a reintegration plan
with Mother in the first CINC case but she failed to complete the tasks of reintegration.
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The State also attempted a reintegration plan with Mother in the second case. However,
in the mere 4 months between the children's removal from Father's custody and the
termination hearing, Mother had two positive UA's and she had stopped going to
treatment. Though Mother stated she was enrolled in a more intensive treatment program,
the State was not required to take Mother's word that she would complete treatment this
time around when her prior behavior indicated the contrary. Mother failed to provide
stable housing for the children during both cases and she had only been employed for a
period of 2 months over the last several years. Based on all the circumstances, 4 months
was a sufficient amount of time for the State to attempt to reintegrate Mother with
Z.M.M. and Z.L.M. See In re D.W., No. 110,759, 2014 WL 1708207, at *5 (Kan. App.
2014) (unpublished opinion) (Mother's 4-month and 2-month reintegration plans were
sufficient for the State to attempt reintegration when considered in child time).

Did the district court err in finding that termination of parental rights was in the best
interests of Z.M.M. and Z.L.M.?

Finally, Father contests the district court's finding that termination of his parental
rights was in the best interests of Z.M.M. and Z.L.M.; Mother does not take issue with
this finding. Specifically, Father argues that the evidence presented at the final hearing
established that Z.M.M. and Z.L.M. were always safe and well cared for while in Father's
care. The State, in turn, argues that the district court did not abuse its discretion when it
found that based on Father's past conduct and pending criminal cases, termination of his
parental rights was in the best interests of the children.

If the district court finds parental unfitness that is unlikely to change in the
foreseeable future, the court is to then determine whether termination of parental rights is
in the best interests of the children. K.S.A. 2016 Supp. 38-2269(g)(1). In making this
determination, the court gives primary consideration to "the physical, mental and
emotional health of the child." K.S.A. 2016 Supp. 38-2269(g)(1). The court is also to
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consider the benefits of permanency in the children's lives. In re K.R., 43 Kan. App. 2d
891, 904, 233 P.3d 746 (2010).

Here, the district court specifically found that Z.M.M. and Z.L.M.'s need for
permanency and stability outweighed any potential negative effects of terminating
Father's parental rights. This was the second time in the children's 3 years of life that they
were in the custody of the State and they have now spent over half their lives in foster
care. The evidence showed that Z.L.M. had started demonstrating attachment and anger
issues. Wood testified that both children urgently needed a stable and permanent home.
Father was awaiting sentencing in two criminal cases, he did not have a permanent home,
he did not have fulltime employment, and he had not visited his children since they were
placed in police protective custody. Father's repeated patterns of behavior clearly showed
that he was unable to maintain stability for the children or stay out of criminal trouble.
The district court did not abuse its discretion in finding that termination of Father's
parental rights was in the best interests of Z.M.M. and Z.L.M.

Affirmed.