In re B.M.T.C.

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NOT DESIGNATED FOR PUBLICATION

No. 116,362

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of B.M.T.C.,
A Minor Child.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; DANIEL T. BROOKS, judge. Opinion filed April 7, 2017.
Affirmed.

Richard L. Dickson, of Wichita, for appellant natural father.

Lesley A. Isherwood, assistant district attorney, and Marc Bennett, district attorney, for appellee.

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

Per Curiam: Father appeals from the termination of his parental rights as to his
son, B.M.T.C. Although Mother's parental rights were also terminated, she has not
appealed. Because we find clear and convincing evidence supporting the district court's
factual findings and we find no abuse of the district court's discretion, we affirm.

CINC and pretermination proceedings

In October 2014, the State filed a child in need of care (CINC) petition and an
application for an ex parte order of protective custody in the Sedgwick County District
Court on behalf of 5-year-old B.M.T.C. and his 10-year-old half-brother S'D.R.A.C.,
which alleged that it was contrary to the boys' welfare to remain in the home of their
natural mother, A.L.C. (Mother), and it was in their best interests to find a suitable out-
of-home placement. Although paternity had not been established, Mother identified
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D.H.C., III (Father) as B.M.T.C.'s putative father. The State contended Father was not
currently a resource for placement because he had "failed to and [was] unable to provide
for [B.M.T.C.]'s safety, care, and control." This was based on three unsuccessful attempts
to contact Father at his residence in Jonesboro, Arkansas, by Janet Barnes, a Social
Worker Specialist with the Department for Children and Families (DCF).

That same month, after immediately issuing an ex parte order of protective
custody, the district court held a temporary custody hearing. At this hearing, the district
court found Father in default because he appeared only through his appointed counsel.
The district court ordered that the children remain in the temporary custody of the
Secretary of DCF in an out-of-home placement and ordered paternity testing.

Paternity testing established "by the percentage of 99.99" that Father was
B.M.T.C.'s biological parent. At the adjudication hearing, Father, who again appeared
only through his appointed counsel, submitted a statement of no contest to the CINC
petition pursuant to K.S.A. 2016 Supp. 38-2248 and waived his right to an evidentiary
hearing. Upon inquiry, the district court found a factual basis for Father's no contest
statement, which he had knowingly and voluntarily offered.

Consequently, the district court accepted the no contest statement and adjudicated
B.M.T.C. a CINC under K.S.A. 2016 Supp. 38-2202(d)(1), (2), and (3). The district court
also entered a disposition order, which reinforced its previous orders, and authorized the
State to initiate the Interstate Compact on the Placement of Children (ICPC) process for
Father to determine whether B.M.T.C. could be placed in his Arkansas home.

Father expressed a willingness to also take placement of S'D.R.A.C. if necessary;
therefore, Jessica Duntz, a social worker with the Saint Francis Community Services
Reintegration Program (SFCS), requested an ICPC Relative home study for the
placement of B.M.T.C. and S'D.R.A.C. from the Division of Children and Family
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Services in Sharp County, Arkansas, in August 2015. Accordingly, the following day,
Arkansas mailed Father the Safe Home study packet, which included a household
information sheet, criminal and central registry check forms, adult maltreatment forms,
driving record check forms, questionnaires, and three personal reference forms for Father
to complete.

In the meantime, the district court had held two permanency hearings to access the
progress being made towards achieving the permanency plan goal of reintegration. At the
hearings in July and October 2015, the district court determined that it was still in the
best interests of the children to remain in the custody of DCF in an out-of-home
placement, although reintegration remained a viable option.

The termination of parental rights

Almost 3 months later, the State moved for a termination of Father's parental
rights. It alleged that despite the fact that the court, DCF, and SFCS were available to
provide services to assist Father in "stabilizing his situation to place him in a position to
provide appropriate care to [B.M.T.C.]," Father had exhibited a lack of effort towards
adjusting his circumstances, conduct, or conditions to meet B.M.T.C.'s needs.

The State further claimed that due to Father's unfitness, termination of Father's
parental rights was in B.M.T.C.'s best interests. According to the State, Father only had
telephone contact with B.M.T.C. since the case was initiated and had not requested
visitation or sent "cards, gifts, or provided for [B.M.T.C.]'s needs while in [the] State's
custody." Moreover, while "[t]here had been telephone visits between [B.M.T.C.] and
[Father], . . . [Father] did not answer his telephone for several visits due to working third
shift." Finally, although Mary Adkinson, an SFCS social worker, spoke with Father on
September 24, 2015, regarding the status of the ICPC and Father reported that he had
returned all the necessary paperwork, Duntz had recently informed the Office of the
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District Attorney that as of December 17, 2015, Father had not completed the paperwork
required for the completion of an ICPC home walkthrough.

In May 2016, the district court held a termination hearing. Although the State
presented Father with regular and certified mail service, and Father signed for that service
on March 28, 2016, Father did not personally appear at the hearing. When the district
court asked his appointed counsel for any reason why Father should not be held in
default, Father's counsel stated his belief that the State had validly served Father.
Accordingly, the district court found Father in default.

The State subsequently proffered the following: the allegations contained in its
motion for finding of unfitness and termination of parental rights; an April 15, 2016,
SFCS report prepared by Duntz, who was present in the courtroom; and the ICPC denial
packet issued by the State of Arkansas on February 19, 2016, due to noncooperation on
Father's part. In response, Father's counsel informed the district court that it was not
necessary to require Duntz to be "sworn for cross-examination on her report or any of the
Exhibits." When asked if he had any opposition to the Exhibits, Father's counsel stated:
"Your Honor, I wouldn't agree to the truth of the matters asserted, but I would agree that
would be the evidence if presented, Your Honor."

After admitting the Exhibits, the district court found clear and convincing
evidence that B.M.T.C.'s reintegration into Father's home was no longer a viable option.
The district court determined that Father was unfit to properly care for B.M.T.C. under
K.S.A. 2016 Supp. 38-2269(b)(4) ("physical, mental or emotional abuse or neglect or
sexual abuse of a child"); K.S.A. 2016 Supp. 38-2269(b)(7) ("failure of reasonable efforts
made by appropriate public or private agencies to rehabilitate the family"); K.S.A. 2016
Supp. 38-2269(b)(8) ("lack of effort on the part of the parent to adjust the parent's
circumstances, conduct or conditions to meet the needs of the child"); K.S.A. 2016 Supp.
38-2269(c)(2) ("failure to maintain regular visitation, contact or communication with the
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child or with the custodian of the child"); and K.S.A. 2016 Supp. 38-2269(c)(3) ("failure
to carry out a reasonable plan approved by the court directed toward the integration of the
child into a parental home"). The district court also concluded that the conditions of
Father's unfitness were unlikely to change in the foreseeable future measured in "child
time," and that termination of Father's parental rights was in B.M.T.C.'s best interests.
Father timely appeals.

Our scope of review

A parent has a constitutionally protected and 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); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594
(2008). Thus the State may terminate one's parental rights only 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). "Clear
and convincing evidence is evidence which shows that the truth of the facts asserted is
highly probable." In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3. To ensure that children do not
languish in State custody, courts consider "the foreseeable future" from the child's
perspective, rather than that of the parent, because a child's perception of time differs
from that of an adult. See In re R.S., 50 Kan. App. 2d 1105, 1117, 336 P.3d 903 (2014);
In re L.S.M.A., No. 114,038, 2016 WL 1391809, at *9 (Kan. App. 2016) (unpublished
opinion), rev. denied 304 Kan. 1017 (2016).

The Revised Kansas Code for Care of Children, K.S.A. 2016 Supp. 38-2201 et
seq., lists a number of nonexclusive factors the district court must consider in
determining a parent's unfitness. See K.S.A. 2016 Supp. 38-2269(b). The court shall also
consider a separate list of nonexclusive factors when, as in this case, the child is not in
the physical custody of the parent. See K.S.A. 2016 Supp. 38-2269(c). Any one of the
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factors in K.S.A. 2016 Supp. 38-2269(b) or (c) may, but does not necessarily, establish
grounds for terminating a parent's rights. See K.S.A. 2016 Supp. 38-2269(f). When
reviewing a district court's decision to terminate a parent's rights, an appellate court must
"consider whether, after review of all the evidence, viewed in the light most favorable to
the State, [it is] convinced that a rational factfinder could have found it highly probable,
i.e., by clear and convincing evidence, that the parent's rights should be terminated.
[Citation omitted.]" In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011).

Upon making a finding of unfitness of the parent, "the court shall consider
whether termination of parental rights as requested in the petition or motion is in the best
interests of the child." K.S.A. 2016 Supp. 38-2269(g)(1). In making such a determination,
the court shall give primary consideration to the physical, mental, and emotional needs of
the child. K.S.A. 2016 Supp. 38-2269(g)(1). The district court is in the best position to
determine the best interests of the children, and an appellate court cannot overturn such a
determination without finding an abuse of discretion. In re K.P., 44 Kan. App. 2d 316,
322, 235 P.3d 1255 (2010). A judicial action constitutes an abuse of discretion if it is (1)
arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view
adopted by the court, (2) guided by an erroneous legal conclusion, or (3) based upon an
error of fact. See In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 2.

Does clear and convincing evidence support the district court's decision to terminate the
father's parental rights?

Father contends that clear and convincing evidence does not support the district
court's decision to terminate his parental rights because "he has 'substantially complied'
with the [c]ourt's orders." Father asserts that the failure to achieve reintegration in this
case was caused by the fact that Kansas and Arkansas did not make reasonable efforts to
assist and support him in achieving this goal.

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As explained above, the district court's findings of unfitness were based on the
State's motion for finding of unfitness and termination of parental rights, Duntz' SFCS
report, and Arkansas' ICPC denial packet. Having reviewed the information contained in
those documents, we find clear and convincing evidence supporting the district court's
conclusions.

First, the evidence shows that Father did not make a reasonable effort to achieve
reintegration because, for some unknown reason, he neglected to complete the simple
task of providing Arkansas with the paperwork necessary to complete the ICPC process.
Arkansas' ICPC denial packet indicates that the Division of Children and Family Services
in Sharp County, Arkansas denied Kansas' ICPC Safe Relative home study and
placement request for B.M.T.C. and S'D.R.A.C. due to noncooperation on Father's part.
Arkansas explained:

"Safe Home study packet was mailed to [Father] . . . at [his address in]
Jonesboro, [Arkansas] . . . on 8/26/2015. Enclosed was household information sheet,
criminal and central registry check forms, adult maltreatment forms, driving record check
forms, questionnaires and three personal reference forms. Several calls were made to
[Father] on 8/31, 11/5/15, 11/18/15 about [Father's] Drivers ID and the form."

Moreover, on September 24, 2015, Father informed Adkinson that he had sent off
all of the necessary ICPC paperwork. While this statement may or may not have been
truthful at the time, Duntz reported that the "Reintegration Social Worker called the ICPC
worker" on November 30, 2015, regarding the status of the ICPC, and the ICPC worker
indicated that "a home study ha[d] not been ordered yet, because [Father] ha[d] not
completed all the forms." Apparently, Father did not have a valid driver's license, and
although the ICPC worker mailed Father a form he needed to complete for an
investigation into his past driver's license over 6 weeks prior to November 30, Father
failed to return it. Duntz explained, "[Father] does not have a valid [driver's license]; [the
ICPC worker] still has to run his past [driver's license]; there is a form that he needs to
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complete. [The ICPC worker] stated to this worker that she mailed that form with a return
envelope over 6 weeks ago."

Duntz further indicated that she had not had "consistent contact with [Father]," a
failing which Father attributed to "a phone number change for him." Duntz maintained
that Father, despite having knowledge of the reason for the ICPC denial, made no attempt
to obtain a reversal of that decision. Duntz explained that she had received a voicemail
from Father on April 12, 2016, after the ICPC was denied, "inquiring [as to] what he
needed to do to get placement of [B.M.T.C.]." Although she left Father a return voicemail
which informed him that "the ICPC was denied due to lack of contact and [he] needed to
contact the ICPC in Arkansas to see what need[ed] to happen to restart the process,"
Father neglected to take such an action. Father's inaction was not due to an inaccurate
phone number or lack of communication.

Second, Father failed to maintain regular visitation, contact, or communication
with B.M.T.C. and made no effort to adjust his circumstances, conduct, or conditions to
meet B.M.T.C.'s needs during the pendency of the proceedings. Duntz reported that
Father made a lackluster attempt to regularly talk to B.M.T.C.:

"There have been phone visitations between [B.M.T.C.] and his father in the past.
[B.M.T.C.] enjoys talking to his father and looks forward to doing so. [Father] did not
answer his phone for several visits, due to working third shift. [Father] expressed wanting
[to] hav[e] a relationship with [B.M.T.C.]. [Father] recently changed his phone number.
Reintegration social worker provided foster parent and [Father] with a conference phone
number to reestablish the phone contact. Foster parent stated that he would report each
phone call to this worker. The phone calls were to start on Sunday December 20th, 2015;
foster father stated that he has been unable to get in touch with [F]ather. This worker sent
[F]ather and foster father each other's email so they could coordinate skype and phone
visits. To date this has not occurred."

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Finally, Father, who maintained stable employment in Arkansas, neglected
B.M.T.C. by choosing not to financially support him. Specifically, Duntz reported that
although Father sent B.M.T.C. "cards and gifts for his birthday," Father "has not provided
any financial support to [B.M.T.C.] while he has been in [State] custody." Father
challenges this by stating that he also sent a pillow and toys to B.M.T.C. Father did not,
however, provide an appropriate citation to the record, as the volume and page number he
cited does not support this factual assertion. But even had Father sent B.M.T.C. a pillow
and some toys, those items do not constitute financial support.

Father attempts to negate the evidence of unfitness outlined above by claiming that
his failure to achieve reintegration with B.M.T.C. was because SFCS and Arkansas did
not treat him in a "fair and reasonable" manner. More specifically, Father claims that
Kansas and Arkansas did not make a good faith effort towards reintegration, because
Arkansas did not "go out to his home or place of work to give him the Driver's License
form so they could do the requested home study," and it was unreasonable to deem him
uncooperative simply "[b]ecause one (1) Driver's License form was not completed."

As the State contends, however, while the Revised Kansas Code for Care of
Children requires the appropriate agencies to expend reasonable efforts towards
reintegrating the child with his or her 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.)
(unpublished opinion), rev. denied 301 Kan. 1046 (2015). Thus the agencies involved in
furthering B.M.T.C.'s reintegration with Father were not required to meet Father in
person, to deliver the form to him, to await Father's completion of it, and to return the
form to its proper place. Instead, those agencies clearly expended reasonable efforts
towards achieving the goal of reintegration by mailing the necessary paperwork to Father,
with a return envelope, at his address of record, and by making several follow-up
attempts to reach Father by phone regarding the status of the ICPC. If Father were serious
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about obtaining placement of B.M.T.C., he should have been able to fill out the
paperwork that was a prerequisite for his home study without further prompting from
Arkansas or Kansas.

Father does not separately challenge the district court's findings that his unfitness
was unlikely to change in the foreseeable future or that termination was in the best
interests of B.M.T.C. Nonetheless, we have reviewed these findings and uphold them.
Father's lackluster attempt to obtain reintegration with B.M.T.C. demonstrates that he
was either unwilling or unable to change his conduct or the conditions of his unfitness in
the foreseeable future. The foreseeable future in CINC proceedings is viewed from a
child's perspective because a child's perception of time differs from that of an adult.
K.S.A. 2016 Supp. 38-2201(b)(4); In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711
(2014); In re S.D., 41 Kan. App. 2d 780,790, 204 P.3d 1182 (2009). In addition, the court
may predict a parent's future unfitness based on his or her past history. In re Price, 7 Kan.
App. 2d 477, 483, 644 P.2d 467 (1982). Courts do not have to gamble with a child's
future nor experiment with child's welfare before taking action. A child should not have
to endure the inevitable to his or her detriment in order to give the parent an opportunity
to prove his or her fitness as a parent. 7 Kan. App. 2d at 480 (quoting In re East, 32 Ohio
Misc. 65, 69, 288 N.E.2d 343 [1972]).

At the time of the termination hearing, B.M.T.C. had been in State custody for
approximately a year and half, which is a significant amount of time when viewed
through the eyes of a child. During that time, he had been placed in several foster homes
and was eventually separated from S'D.R.A.C. Moreover, in her report, Duntz noted:
"[B.M.T.C.] need[s] stability and permanency. . . . [B.M.T.C.] ha[s] mental health needs
and ha[s] anxiety centered on visitation and the unknown. When SFCS did not have visits
for three (3) weeks due to weather and illness, [B.M.T.C.'s] behaviors decreased."
Consequently, a reasonable person could certainly conclude, as the district judge did, that
it was in B.M.T.C.'s best interests to terminate Father's parental rights because additional
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time would only serve to further delay B.M.T.C.'s ability to obtain permanency. The
district court is in the best position to determine the best interests of the children, and an
appellate court cannot overturn that finding without finding an abuse of discretion. In re
K.P., 44 Kan. App. 2d at 322. The party asserting an abuse of discretion bears the burden
to prove the abuse of discretion. Northern Natural Gas Co. v. ONEOK Field Services
Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). Father has not met that burden.

This is certainly not the most egregious case of unfitness we have seen. But
viewing all of the evidence in a light most favorable to the State, we find clear and
convincing evidence that Father was unfit to care for B.M.T.C., and that his unfitness
would continue into the foreseeable future. We find no abuse of discretion in the district
court's finding that termination of Father's parental rights was in B.M.T.C.'s best
interests.

Affirmed.