In re L.S.M.A.

1

NOT DESIGNATED FOR PUBLICATION

No. 114,038

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of:
L.S.M.A., DOB: 2012, Sex: F;
J.R.P.A., DOB: 2010, Sex: M; and
N.W., DOB: 2007, Sex: M.

MEMORANDUM OPINION


Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed April 8, 2016.
Affirmed.

Louis A. Podrebarac, of Podrebarac Law Office, of Dodge City, for appellant natural father.

Sarah Doll Heeke, of Doll Law Firm, LLC, of Dodge City, for appellant natural mother.

Kathleen Neff, assistant county attorney, and Natalie Randall, county attorney, for appellee.

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

Per Curiam: D.C., Mother, and J.A., Father, are the natural parents of N.W. born
in 2007, J.R.P.A. born in 2010, and L.S.M.A. born in 2012. The State took custody of the
children on October 16, 2013. The district court held a termination hearing on May 18,
2015. The court terminated Mother's and Father's parental rights. Both parents appeal.

On October 11, 2013, Dodge City police officers responded to a report of a child
pointing a gun at passing cars. The police found N.W., a 6-year-old boy, holding an
unloaded CO2 BB gun that was not easily identifiable as a toy. N.W. was dirty and not
wearing a shirt or shoes. After speaking to N.W. for a period of time, the officers were
able to figure out his address and who his mother was. The officers went to the family
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residence and spoke with Mother. Mother claimed to have seen N.W. 10 minutes prior
even though N.W. had been in police custody for 30 to 45 minutes by that point. One of
the officers testified the other children in the home were not as dirty as N.W., and N.W.
could possibly have gotten dirty from playing outside for an extended period of time.

Mother appeared to be under the influence of a central nervous system stimulant.
The officers asked her if she was on anything, and she told them she had smoked some
marijuana and methamphetamines. An officer contacted Mother's probation officer who
responded to the scene and put an arrest and detain order on her. Mother was arrested and
taken into custody. Father was already incarcerated at the time.

On October 16, 2013, the district court removed N.W., J.R.P.A. and L.S.M.A.
from the home and placed them in the custody of the Kansas Department for Children
and Families (DCF) because both parents were incarcerated and the children had no
supervision. On December 18, 2013, the court adjudicated the children as Children in
Need of Care (CINC). Both Mother and Father entered no contest statements at the CINC
adjudication.

Tammie Patterson, a reintegration supervisor for Saint Francis Community
Services (SFCS), testified the children had a number of health and behavioral issues
when they came into custody. J.R.P.A. had several rotten teeth, which took several
dentist appointments to correct. Patterson noted his case was particularly severe and was
indicative of long-term neglect in the home. J.R.P.A. also had a heart murmur which
required a doctor's visit. L.S.M.A. was over the age of one but still drank from a bottle
and was possibly a little behind on her social skills. N.W. was physically aggressive and
struggled with lying and stealing.

The first case plan conference was on November 5, 2013. Patterson testified that
neither Mother nor Father attended because they were still in jail, and jail policy
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prevented them from participating. SFCS informed Mother of the case plan and her tasks
on November 20, 2013. SFCS informed Father of the case plan and his tasks on
December 10, 2013.

Natural Mother

According to Patterson, Mother was released from jail on November 7, 2013 and
made contact with SFCS soon after. On December 6, 2013, SFCS reported Mother was
actively searching for a job. She had completed a drug and alcohol evaluation on
November 6, 2013, and had clean initial drug tests. She had completed a mental health
evaluation on November 27, 2013 and was attending therapy. She also had two separate
visits with her children on November 16, 2013, and November 27, 2013.

On December 6, 2013, Mother entered Ashby House, a drug and alcohol inpatient
treatment facility in Salina. SFCS also assigned Rodney Taylor as the regular caseworker
for her on the same day. Taylor testified Mother had two 3-hour visits with her children
during her time at Ashby House, one on December 19, 2013, and another on December
30, 2013. She also had an overnight visit on January 11, 2014. This was the last visit,
however, because Mother left Ashby House to live in a motel with her adult son. She did
not notify SFCS she had left the program. According to Taylor, he discovered she had
left when he called to speak with her at Ashby House.

Taylor testified he was in Salina on January 30, 2014, for training and attempted to
set up a worker/parent meeting with Mother. He called her several times, but she did not
answer her phone or return his calls until he offered to buy her dinner. At the meeting,
Taylor went over Mother's case plan tasks with her. According to Taylor, Mother was not
making any significant progress at the time. She said she was looking for a job but had
not applied anywhere yet. Because she had walked away from Ashby House, she was no
longer following the recommendations from her drug and alcohol evaluation. When
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Taylor asked about her adult son, Mother told Taylor he was one of four children she had
lost legal custody of when she had gone to jail in California.

Taylor told the district court that Mother eventually entered the Central Kansas
Foundation (CKF), an intensive inpatient drug and alcohol treatment program, on
February 24, 2014. Completion of the CKF program was a precondition for returning to
Ashby House. CKF did not allow visits with the children, so Mother was only able to
have one phone visit during this time. She completed the CKF program and returned to
Ashby House on March 19, 2014.

During her second stay at Ashby House, Mother had weekly visits with her
children from April 12, 2014, until May 25, 2014. The visits were originally
unsupervised, but SFCS changed the visits to supervised because J.R.P.A. had returned
from a visit with bruises on his chest. SFCS believed the bruises were caused by N.W.
hitting J.R.P.A. On May 25, 2014, Ashby House discharged Mother for rule violations.
She did not complete the Ashby House program.

After Mother's discharge from Ashby House, SFCS had difficulty locating her. On
June 6, 2014, SFCS was able to contact Mother and she said she was living with a friend.
Sometime after June 6, Mother gave SFCS an address, which Taylor understood as 150
"Ace" Street. SFCS attempted an in-home visit at the address on June 17, 2014, but could
not find the home. SFCS may possibly have misheard the address. On June 20, 2014,
Mother gave her address again, which SFCS took down as 150 "8th" Street. SFCS did not
attempt another visit at this address.

The next worker/parent meeting with Mother was on July 16, 2014, at a
permanency hearing. By this point, Mother was living in another motel. She provided a
receipt to the district court as evidence of where she was living, but the receipt did not
have the motel's name or address. Mother reported she had been working at a restaurant
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for about 3 weeks. At the hearing, the court found Mother's progress on the permanency
plan was not adequate and reintegration was no longer viable.

In August, SFCS had an address for Mother at an Embassy Suites motel. In
September, Mother was living with a boyfriend in a home in Salina. She stayed there for
2 months then moved back into a motel.

Taylor testified Mother's visits with her children were contingent on her passing
drug screens. She was originally allowed weekly visits, but after the district court found
reintegration was no longer a viable option in July 2014, she was only allowed visits once
a month. She had negative drug tests on June 24, July 2, and July 8. Between July 8 and
September 5, she failed to show up for all 7 of her drug tests. On September 5, she had a
negative drug test. On September 9, she did not show for her drug test. On September 23,
she tested positive for THC. She had one visit in October and one visit in November.
From December until the time of the termination hearing, Mother had not had any visits
with the children because she had stopped taking the drug tests.

As of the termination hearing, Mother had only completed some of her case plan
tasks—a drug and alcohol evaluation, a mental health evaluation, and a parenting class.
She had not followed all the recommendations from her drug and alcohol and mental
health evaluations. Mother had temporarily lost the job she had in July but got it back in
November 2014 and had been working there since. She had not sent in recent pay stubs
as required, however. Mother was in arrears of $9,560.10 on child support and had not
made any payments. She had not found safe and stable housing. She had not reported
changes in her address, phone number, and employment within 24 hours to SFCS. Taylor
testified that Mother was not in a position to raise her children now or in the near future.

Natural Father

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After being arrested on September 23, 2013, Father eventually pled to aggravated
robbery. The incident leading to his arrest involved a stabbing, and the State originally
had charged him with attempted murder. He served 16 months in prison during the
pendency of this case. This was his fourth felony conviction. He had prior convictions for
second-degree burglary and possession of methamphetamines. He served time in prison
for all three of his prior felonies.

Detective David Gordon, with the Dodge City Police Department, also testified at
the termination hearing. He had filled out a Gang Verification Criteria form for Father in
relation to a disorderly conduct incident in 2010. At the time, Father told Gordon he was
a member of a "white Nazi gang." Gordon testified Father had a "peckerwood" tattoo
which substantiated his claim of gang membership. Father denied membership in a gang.
He testified he did not recall speaking with Detective Gordon because he had been drunk
and had put his head through a windshield.

Father had an extensive history of drug use as shown in his drug and alcohol
evaluation. He began using methamphetamines at the age of 17. He denied ever using
them regularly, but he admitted methamphetamine use had "'most definitely'" affected his
relationships. The last time he used methamphetamines was September 22, 2013, the day
before his arrest. He began using heroin daily at the age of 20 and had a history of
withdrawal symptoms. He reported the last time he used heroin was in 2012. He believed
it had been a problem for him, but it was not any longer. According to Father, heroin use
did not affect his relationships other than taking him away from his family. He first drank
alcohol at the age of 15, but he did not believe it was ever a problem. The last time he
drank alcohol was the day of his arrest. He had drunk about a quart of alcohol to help him
come down off a methamphetamine high. Father reported he had completed a drug
treatment program through the California Department of Corrections in 2000. He also
reported being in another drug treatment program in prison in 2014, but he did not
complete it due to an altercation with another inmate.
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Taylor testified Father could have completed some tasks from his case plan while
incarcerated, but he chose not to do so. These tasks included the drug and alcohol
evaluation and the mental health evaluation. According to Father, he did complete a drug
and alcohol evaluation and a mental health evaluation during his time in custody. The
Kansas Department of Corrections, however, was unwilling to share the results of these
evaluations with SFCS. Father also started a parenting class while incarcerated, but he
was kicked out for disciplinary reasons.

During his time in prison, Father wrote two or three letters to each of his children.
He testified he would have had phone visits with his children if he had known that was an
option. He testified he was in contact with Taylor several times during his incarceration.
He wrote letters to the Assistant Ford County Attorney and two judges in an attempt to
get more information about his case. After being released from prison on February 2,
2015, Father had one visit with his children. He testified he let the children
"roughhouse[]" a little bit, and J.R.P.A. got a bloody nose. According to Father, he felt he
had been a little "lax[]" and should have set some boundaries with the children.

After being released from prison, Father had made notable progress on his case
plan. He completed a mental health evaluation, which did not recommend any further
mental health care. He completed a drug and alcohol evaluation. In compliance with its
recommendations, he was in a treatment program at CrossOver Recovery, and there had
been no reports of a positive drug test. He was taking a required parenting class at the
time of the termination hearing and had taken a domestic violence class, which was not
required by his case plan.

Father had been working full-time for 6 weeks as a welder. He testified he woke
up at 3 a.m. and biked 9 miles to get to work by 6 a.m. He was still homeless and staying
at the Union Rescue Mission and appeared to be having no problems there. Father
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testified he had saved $700 in hopes of getting a home and a car and would be able to
care for his children. Father was in arrears of $4,451.20 on child support, but he had
received a credit of $2,000 for participating in a forgiveness program.

According to Patterson, Father had definitely made progress since he had gotten
out of jail, but because of his incarceration his plan had not been reasonably completed as
of the date of the termination hearing. In her opinion, the children could not be put safely
with the Father at the current time. Given the length of time the children had already been
out of the home, they could also not be placed with him in the foreseeable future
measured in child's time.

Taylor testified Father was not anywhere near ready to take care of the children.
According to Taylor, he was primarily looking for stability, and Father had not had much
time to demonstrate he could be stable. While he hoped Father would continue to
progress, Taylor's experience was people in Father's position often fail to follow through.
In Taylor's opinion, the best case scenario is Father would be ready in 6 to 9 months, but
the children need permanency now. If Father stumbled, it could take even longer for him
to be ready to resume custody.

The district court held a termination hearing in March 2015. Father was present
and Mother appeared by phone. The electronic recording system failed at that hearing,
however, so a second hearing was held in May 2015. Father was present at the
termination hearing, but Mother was not. Mother had e-mailed her attorney to say she
would not be able to attend because of work.

In its ruling at the termination hearing, the district court found that Mother and
Father were unfit under nine factors listed in K.S.A. 2014 Supp. 38-2269, and their
conduct or condition was unlikely to change in the foreseeable future. It also applied a
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presumption of unfitness to Mother. The court determined termination of parental rights
was in the best interests of the children. Both Mother and Father appeal.

When this court reviews a district court's termination of parental rights, it
considers "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]." In re
B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In B.D.-Y., the 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. Appellate courts do not weigh
conflicting evidence, determine the credibility of witnesses, or redetermine factual
questions. 286 Kan. at 705.

After a district court has adjudicated a child to be a CINC, the district court must
make three findings before terminating parental rights. The court must find by clear and
convincing evidence that (1) the parent is unfit; (2) the conduct or condition that renders
the parent unfit is unlikely to change in the foreseeable future; and (3) the termination of
parental rights is in the best interests of the child. K.S.A. 2015 Supp. 38-2269(a), (g)(1);
In re M.H., 50 Kan. App. 2d 1162, 1169, 337 P.3d 711 (2014). When deciding whether
the parent is unfit, the district court must consider a nonexclusive list of factors in K.S.A.
2015 Supp. 38-2269(b). When the child is not in the parent's custody—which is the case
here—the district court must also consider four additional factors listed in K.S.A. 2015
Supp. 38-2269(c). Any one of these factors, standing alone, may provide grounds for
termination. K.S.A. 2015 Supp. 38-2269(f). A court may presume a parent is unfit if clear
and convincing evidence demonstrates "the child has been in an out-of-home placement,
under court order for a cumulative total period of one year or longer and the parent has
substantially neglected or willfully refused to carry out a reasonable plan, approved by
the court, directed toward reintegration of the child into the parental home." K.S.A. 2015
Supp. 38-2271(a)(5).
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In making its determination of unfitness, the district court relied on the following
factors:
1. K.S.A. 2015 Supp. 38-2269(b)(1), "[e]motional 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," as to Mother;
2. K.S.A. 2015 Supp. 38-2269(b)(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," as to
both parents;
3. K.S.A. 2015 Supp. 38-2269(b)(4), "physical, mental or emotional abuse or
neglect or sexual abuse of a child," as to both parents;
4. K.S.A. 2015 Supp. 38-2269(b)(5), "conviction of a felony and imprisonment,"
as to Father;
5. K.S.A. 2015 Supp. 38-2269(b)(7), "failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family," as to both
parents;
6. K.S.A. 2015 Supp. 38-2269(b)(8), "lack of effort on the part of the parent to
adjust the parent's circumstances, conduct or conditions to meet the needs of
the child," as to both parents;
7. K.S.A. 2015 Supp. 38-2269(b)(9) and (c)(1), child is in extended out of home
placement as a result of actions attributable to parent and parent failed to
assure care of child in parental home, as to both parents;
8. K.S.A. 2015 Supp. 38-2269(b)(9) and (c)(2), child is in extended out of home
placement as a result of actions attributable to parent and parent failed "to
maintain regular visitation, contact or communication with the child or with the
custodian of the child," as to both parents;
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9. K.S.A. 2015 Supp. 38-2269(b)(9) and (c)(3), child is in extended out of home
placement as a result of actions attributable to parent and parent failed "to carry
out a reasonable plan approved by the court directed toward the integration of
the child into a parental home," as to both parents;
10. K.S.A. 2015 Supp. 38-2269(b)(9) and (c)(4), child is in extended out of home
placement as a result of actions attributable to parent and parent failed "to pay
a reasonable portion of the cost of substitute physical care and maintenance
based on ability to pay," as to both parents.

NATURAL MOTHER

Mother argues clear and convincing evidence does not support the district court's
findings as to any of the above factors. She argues she properly cared for the children and
was mostly in compliance with the case plan. Mother contends any failures on her part
are due to mutual communication problems with SFCS. She also asserts her recent
changes demonstrate she would be fit to parent her children in the foreseeable future.

The State argues the district court made detailed findings regarding the K.S.A.
2015 Supp. 38-2269 factors in Mother's case. These cumulative factors, coupled with a
presumption of unfitness under K.S.A. 2015 Supp. 38-2271(a)(5), demonstrate Mother
was unfit and would remain unfit for the foreseeable future.

In the present case, sufficient evidence supports the district court's finding that
Mother was unfit. Regarding Mother's drug use, she admitted she was under the influence
of marijuana and methamphetamines when the children were initially taken into custody
on October 11, 2013. She completed a drug and alcohol evaluation as part of her case
plan, but she failed to fulfill its recommendations. She entered Ashby House but left
voluntarily before completing the program. She completed the CKF drug treatment
program as a precondition to being readmitted to Ashby House, but Ashby House later
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involuntarily discharged her for rule violations. In her brief, Mother correctly notes she
only had one positive drug test during the pendency of the case, but she fails to mention
she did not show up for many of her scheduled UAs.

Regarding Mother's neglect of the children and failure to assure care of the
children in the parental home, this was demonstrated by their condition when they
entered State custody. On October 11, 2013, N.W. was found dirty, shirtless, and shoeless
blocks from home pointing a realistic toy gun at cars. At the time, Mother was under the
influence of narcotics and did not know N.W. was not at home. After being taken into
custody, N.W. continued to demonstrate behavioral issues. J.R.P.A. had severe dental
issues that Patterson testified were uncommon and demonstrated long-term neglect.
L.S.M.A. was also still drinking from a bottle at the age of one.

Turning to her inability to adjust her circumstances to meet the children's needs,
Mother was unable to maintain a stable home during the pendency of the case. She
frequently moved and stayed in motels. She was eventually able to secure a job but was
never able to make any child support payments. She was also not compliant with the
recommendations of her drug and alcohol and mental health evaluations.

As for Mother's failure to maintain regular visitation or communication with her
children or the custodian of her children, Mother was only able to maintain regular
visitation with her children for sporadic periods. In her brief, Mother argues many of
these missed visits were due to factors outside her control. She asserts she could not have
visits with her children while at CKF due to CKF policy. The only reason Mother was at
CKF, however, was because she had left Ashby House before completing treatment.
Mother also missed many visits because she did not show up for her required drug tests.
Mother contends she could not take the required drug tests due to transportation issues,
and this prevented her from visiting her children. Mother was not present at the
termination hearing, though, and any evidence of transportation issues was not presented.
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Her attorney's questions at the hearing may have implied this might have been an issue,
but Taylor testified he did not know of any such issue. Mother also argues SFCS refused
to allow visits while she was living in a motel. Taylor testified at trial, however, that
while SFCS did not allow visitations in motels, visitations were still possible.
Admittedly, one missed visit appears to be due to a miscommunication of an address, but
the children were in State custody for over a year, and for much of this time Mother was
entitled to weekly visits.

Clear and convincing evidence also supports the district court's finding that
SFCS's reasonable efforts to rehabilitate the family failed. SFCS developed a case plan
for Mother to follow and went over the case plan tasks with her. SFCS attempted to have
regular meetings with Mother to review her progress. Mother argues in her brief that
SFCS was required to have monthly face-to-face worker/parent meetings with her.
Because these meetings often either did not happen or took place over the phone, SFCS
did not use reasonable efforts to rehabilitate the family. SFCS, however, had difficulty
staying in contact with Mother throughout the case. Taylor testified he was frequently
unable to reach Mother by phone. Mother was also reportedly frustrated with her inability
to get in touch with SFCS workers. Taylor met with Mother in October 2014 to discuss
communication issues, but Taylor felt communication did not improve after this meeting.
In April 2015, SFCS switched to communication primarily through e-mail at the order of
the district court but still had trouble getting in touch with Mother. Mother did not initiate
contact by e-mail or return SFCS's e-mails.

There is also clear and convincing evidence Mother failed to carry out a
reasonable plan directed toward reintegration. As mentioned above, she completed a drug
and alcohol evaluation but did not complete her drug treatment at Ashby House and she
missed a number of required drug tests. She also completed a mental health evaluation
and a parenting class as part of her case plan. She did not follow through with the
recommendations of her mental health evaluation, though. In addition, while she
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completed her parenting class, she frequently canceled her scheduled visits for the class.
She did not fulfill her obligation to notify her caseworker of any change in address within
24 hours, making it difficult for SFCS to stay in contact with her and arrange visits.
While she had found a job, she had not provided recent documentation of her
employment as required by her case plan. She had also not made any child support
payments of any amount despite being in arrears of over $9,000.

The only factor which does not appear to be supported by clear and convincing
evidence is Mother's emotional or mental illness. In its oral ruling, the district court
stated, "There is not much evidence of that, but there is evidence that the mother
struggled with emotional illness. I would call it inability to cope with the situation, and
that just affected her ability to provide ongoing needs of the children." There was no
evidence presented at the hearing of an actual diagnosis regarding her mental or
emotional state. Thus, while Mother may have been suffering from some mental health
issues, it was not highly probable based on the evidence presented at the hearing.

The district court also applied a statutory presumption of unfitness to Mother.
Under K.S.A. 2015 Supp. 38-2271(a)(5), a court may presume a parent is unfit if clear
and convincing evidence establishes that "the child has been in an out-of-home
placement, under court order for a cumulative total period of one year or longer and the
parent has substantially neglected or willfully refused to carry out a reasonable plan,
approved by the court, directed toward reintegration of the child into the parental home."
Mother does not address the statutory presumption in her brief, and the State only
mentions it briefly in support of its argument that the court properly found Mother unfit.
Because clear and convincing evidence supports the court's finding without the
presumption, however, we need not address it.

Not only was Mother currently unfit, her conduct or condition was unlikely to
change in the foreseeable future. Courts view the "foreseeable future" element through
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the child's perspective rather than the parents'. In re S.D., 41 Kan. App. 2d 780, 790, 204
P.3d 1182 (2009). This court must decide these cases in "'child time'" rather than "'adult
time'" so that children do not languish in State custody. In re J.A.H., 285 Kan. 375, 386,
172 P.3d 1 (2007). This court may predict parents' future unfitness based on their past
conduct. In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982); In re J.T.J., No.
112,345, 2015 WL 2414453, at *16 (Kan. App. 2015) (unpublished opinion), rev. denied
302 Kan. ___ (July 21, 2015).

As of the time of the termination hearing, Mother had made limited progress on
her case plan. She had failed to complete her drug and alcohol treatment and had missed
a number of required drug tests. She was not maintaining regular visitation with her
children or staying in contact with SFCS. She had not found a stable home. She had
found a job, but in her 6 months of employment she had not made any child support
payments. At the time of the hearing, her children had been in State custody for over a
year and a half, but her behavior did not show any significant changes which would
suggest she would soon be ready to resume custody of her children. Based on her past
conduct, clear and convincing evidence supports the court's finding that Mother's
condition was unlikely to change in the foreseeable future.

NATURAL FATHER

Father argues that clear and convincing evidence does not support the district
court's finding that he is unfit. He primarily argues that since his release from prison he
has substantially complied with his case plan. Father has expressed a willingness to
permanently change his bad habits and has been working hard to prepare himself to raise
his children. The State asserts evidence of Father's history of drug use and criminal
behavior, along with evidence relevant to other factors, support the court's finding of
unfitness.

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While Father had made progress on his case plan since being released from prison,
sufficient evidence supports the district court's finding that Father is unfit. He has a long
history of drug use. He began using drugs when he was 17 years old and was 51 years old
at the time of the hearing. While he had been drug free for almost 2 years at the time of
the hearing, he had been incarcerated for the majority of that time and was currently
enrolled in a treatment program. This was not his first time in a treatment program for
drug abuse, and he had relapsed before.

Not only was Father incarcerated for a felony during the pendency of this case, he
has a significant criminal history. He has three prior felony convictions and has served
prison time for all three. During the pendency of this case, he served 16 months for a
fourth felony conviction. He was on a 3-year term of postrelease supervision at the time
of the termination hearing.

As for failure of reasonable efforts by the appropriate authorities, Father did
attempt to avail himself of some opportunities during his time in prison. He enrolled in a
parenting class; however, he was kicked out of the class for disciplinary reasons. Taylor
also testified Father had failed to get drug and alcohol and mental health evaluations done
while incarcerated. Father testified he had both evaluations done, but KDOC would not
share the results. The district court appears to have accepted Taylor's testimony, however,
and we do not reweigh conflicting evidence.

As for lack of effort to adjust circumstances, the district court pointed out that
Father had a long criminal history and was fully aware of the kind of conduct that would
take him away from his children, yet he chose to engage in it anyway when he committed
the robbery for which he was convicted. While in prison, Father also had some
disciplinary issues which got him kicked out of a parenting class.

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The district court found Father had failed to maintain regular visitation or
communication with the children or with SFCS. During his time in prison, Father wrote
two or three letters to each of his children. He also wrote at least two letters to his SFCS
caseworker. Father had visited with the children once since being released in February.
He did not have a visit in February at the request of his SFCS caseworker. While Father
was able to maintain much better contact with his children and SFCS once he was out of
prison, the court felt this demonstrated a lack of effort while Father was in prison.

Since being released from prison, Father had been in compliance with his case
plan. He had gotten his mental health and drug and alcohol evaluations and was
following any recommendations. He had found a full-time job. He was taking the
required classes. Father still did not have a home, however, and by his own admission he
did not have the resources to start caring for his children immediately. He had started
saving money instead of applying it to the child support which he owed. Furthermore, he
had only been out of prison for a short period of time at the time of the termination
hearing, so he had been unable to demonstrate that any changes he had made would be
long-lasting. Thus, looking at the evidence in the light most favorable to the State, Father
continued to be unfit at the time of the termination hearing.

Clear and convincing evidence also supported the district court's finding that
Father's condition was unlikely to change in the foreseeable future. While Father had
made progress on his case plan since being released from prison, he himself admitted he
did not have the means to take care of his children immediately. Patterson testified that
Father would not be able to assume responsibility for the children within the foreseeable
future measured in child's time. Taylor testified Father was nowhere near ready to take
care of the children, and the soonest he could be ready was 6 to 9 months. If Father had
any mistakes or slip-ups, it could take even longer. Father clearly was making a
commendable effort to reform himself; however,

18

"[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 (2008).

Considering the children had been in State custody for over a year and a half at the
time of the termination hearing, sufficient evidence demonstrated Father would
not be ready to assume custody of the children within a reasonable time from a
child's perspective.

Mother and Father both argue the district court erred in its best interests of the
child analysis because it did not weigh the benefits of the presence of the parent against
permanency for the children without the parent. They claim the court's failure to do so
resulted in reversible error. The State contends the court properly considered the best
interests of the children in its ruling, and the evidence supported its decision.

The proper standard of review for the best interests determination in a termination
hearing is abuse of discretion. In re R.S., 50 Kan. App. 2d 1105, 1116, 336 P.3d 903,
(2014). A district court abuses its discretion when its decision is (1) arbitrary, fanciful, or
unreasonable, (2) based on an error of law, or (3) founded on an error of fact. Northern
Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106
(2013). When determining whether termination was in the child's best interests, courts
must give primary consideration to the child's physical, mental, and emotional health.
K.S.A. 2015 Supp. 38-2269(g)(1).

Here, in deciding that termination was in the best interests of the children, the
district court cited the correct legal standard under K.S.A. 2015 Supp. 38-2269(g)(1)—
that the court give primary consideration to the physical, mental, and emotional health of
the child. The court then noted the children had been out of the home for a long time and
19

needed placement soon. Both Patterson and Taylor testified at trial that the children
needed permanency soon, and Taylor testified neither parent was in a position to care for
the children now or in the near future. Patterson expressed the same view when asked
about Father's present and future ability to care for the children. Based on the evidence
presented at trial, a reasonable person could agree that termination of both Mother's and
Father's parental rights was in the best interests of the children. Thus, the court did not
abuse its discretion, and its decision to terminate the parental rights of Mother and Father
is affirmed.

Both Mother and Father argue the district court erred because it failed to explicitly
weigh the benefits of the continued presence of the parent against permanency for the
children without the presence of the parent as required by law. K.S.A. 2015 Supp. 38-
2269(g)(1), however, does not require the district court to make specific findings on the
record when deciding if termination is in a child's best interests. It only requires courts to
consider the statutory criteria. In re K.G., No. 112,115, 2015 WL 3514169, *11 (Kan.
App. 2015) (unpublished opinion). In this case, the district court stated the statutory
criteria in its oral ruling. Furthermore, the journal entry of judgment reiterates the
statutory criteria. See In re M.T.S., No. 112,776, 2015 WL 2343435, *9 (Kan. App. 2015)
(unpublished opinion) (finding written journal entry's statement that termination was in
the best interests of the child "[c]onsidering the physical, mental or emotional health of
the child" was sufficient to comply with K.S.A. 2014 Supp. 38-2269[g][1]). Because the
district court identified and applied the correct statutory criteria, there was no error.

Affirmed.