Opinion
No. 108,769.
2013-08-16
In the Interest of G.H., a Minor Child under Age 18.
Appeal from Sedgwick District Court; Daniel T. Brooks, Judge. Joe M. Bogle, Jr., of Wichita, for appellant natural father. Beth Lange, staff attorney, of Kansas Department for Children and Families, of Topeka, for appellee.
Appeal from Sedgwick District Court; Daniel T. Brooks, Judge.
Joe M. Bogle, Jr., of Wichita, for appellant natural father. Beth Lange, staff attorney, of Kansas Department for Children and Families, of Topeka, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
P.M. (Father), the natural father of G.H, appeals the district court's decision to terminate his parental rights. After reviewing the record on appeal, we find clear and convincing evidence to support the district court's decision and therefore affirm.
Facts
In January 2011, the State filed a petition in which it sought to have G.M. declared to be a child in need of care (CINC). The petition was filed after the State received notice that G.H.'s mother was using drugs and taking G.H. on “ ‘drug runs' “ with her. On October 25, 2010, a search warrant was issued and drugs were found at the mother's residence. Father was incarcerated during the time period in which these events transpired. The district court entered an order of protective custody, and G.H. was removed from the home.
Father did not attend the CINC hearing and, as a result, was held in default with regard to adjudication of G.H. as a child in need of care. Nevertheless, the district court established a series of tasks geared toward reintegrating Father with G.H. upon his release from prison on June 13, 2011. These tasks included: abstaining from the use of illegal drugs and alcohol; submitting random urinanalysis (UA) tests; submitting hair follicles for testing; completing parenting classes; obtaining and maintaining full-time employment; obtaining and maintaining appropriate housing; and conducting supervised visitation with G.H. The record reflects that Father's parole officer in Father's criminal case ordered Father to complete drug abuse treatment during this time period as well.
In July 2011, the State filed a motion to terminate Father's parental rights. In the motion, the State noted that, due to his incarceration, Father failed to protect G.H. from her mother's substance abuse issues. The State further alleged in the motion that Father had no relationship with G.H. as he had never seen her and he had been incarcerated her entire life.
In June 2012, the district court heard testimony from witnesses and arguments from counsel. After considering the evidence, the district court found clear and convincing evidence that Father was unfit and that his unfitness was unlikely to change in the foreseeable future. The district court specifically found that Father failed to adjust his circumstances, conduct, and conditions to meet the needs of G.H. as required under K.S.A.2012 Supp. 38–2269(b)(8). The district court further found that Father's past criminal history, drug and alcohol use, and domestic violence issues, coupled with his lack of a parental bond with G.H., rendered him unfit and that his unfitness was not likely to change in the foreseeable future.
Analysis
On appeal, Father argues the factual record does not support the district court's finding of clear and convincing evidence that he is unfit and that his unfitness is unlikely to change in the foreseeable future.
When this court reviews a district court's termination of parental rights, we consider “whether, after review of all the evidence, viewed in the light most favorable to the State, [we are] convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that [the parent's rights should be terminated].” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). Clear and convincing evidence requires the factfinder to believe that the truth of the facts presented is highly probable. 286 Kan. at 697.
When a child has been adjudicated a child in need of care, a district court may terminate parental rights when it finds clear and convincing evidence that the parent is unfit, the conduct or conditions rendering the parent unfit are unlikely to change in the foreseeable future, and that the termination of parental rights is in the best interests of the child. K.S.A.2012 Supp. 38–2269(a), (g)(1). A district court may not terminate parental rights solely on the basis of the child's best interests because the child has been living and doing well with others or that others may do a better job of parenting; it must show parental unfitness. Sheppard v. Sheppard, 230 Kan. 146, 152–54, 630 P.2d 1121 (1981), cert. denied455 U.S. 919 (1982). Unfitness is a conduct or condition that has at least moderately serious and negative impact on the child. In re Penn, 2 Kan.App.2d 623, 625–26, 585 P.2d 1072 (1978). K.S.A.2012 Supp. 38–2269 lists several factors that a district court may take into account in terminating parental rights. See K.S.A.2012 Supp. 38–2269(b), (c). The existence of any one of these factors, standing alone, may be sufficient to terminate those rights. K.S.A.2012 Supp. 38–2269(f); In re C.C., 29 Kan.App.2d 950, 953, 34 P.3d 462 (2001).
Although there was an almost 17–month window of time between adjudication and termination in this case, the assessment of Father's fitness as a parent was primarily limited to the 6–month time period from June 2011 to December 2011 because this was the only time during G.H.'s life that he has not been incarcerated. And there was evidence presented at trial that Father struggled during that 6–month reintegration period with domestic violence issues, drug and alcohol use, and the inability to establish a parental bond with G.H. Although we agree with Father that he complied during this 6–month period with nearly all of the court orders given to him for reintegration with G.H. (including going to scheduled visits, taking parenting classes, and obtaining employment), the domestic violence allegations, the drug and alcohol use, the bonding issue, and the fact that the reintegration process was interrupted indefinitely upon his subsequent arrest all support the district court's finding that Father was unfit for failing to adjust his circumstances to meet G.H.'s needs as required under K.S.A.2012 Supp. 38–2269(b)(8).
Specifically, there is evidence in the record that during the 6–month period Father was not incarcerated and visited G.H., Father was involved in two domestic violence incidents. In October 2011, Father admitted to his parole officer prior to taking a UA test that he had used cocaine; the parole officer ordered him to attend drug treatment sessions, which he did not complete due to his arrest in December 2011. Father regularly attended these meetings, although his instructor at the meetings stated that his focus was not in the correct place, instead, on one occasion he discussed womanizing and teaching G.H. to be “a pimp.” Father had also received various treatments for drug and alcohol abuse two previous times, which obviously had not been successful.
While Father did make improvements in his relationship with G.H., the district court stressed his history of incarceration and inability to establish a parental bond with G.H. Father testified that from the age of 19, he had been incarcerated for approximately 3 years, which included the first 19 months of G.H.'s life. These sentences resulted from convictions of robbery and two escapes from custody. After his release from prison in June 2011, Father began supervised visitation with G.H. until the time of his arrest in December 2011. In all, Father completed 23 of the 26 scheduled visitations. Initially, G.H. was extremely anxious at these visitations, but this improved over the 6–month period. However, on December 23, 2011, Father was arrested and charged with several felonies. This immediately ended all visits he personally had with G.H. This incident, and his subsequent incarceration through the termination hearing, greatly increased the amount of time Father would need to establish the appropriate relationship with G.H. Moreover, this additional time would continue to destabilize G.H.'s young life that she was beginning to have with her resource parents, who had cared for her for the last 18 months.
Ginger Hampton, a social worker for United Methodist Youthville, was the social worker for G.H.'s case. Hampton testified that there existed some barriers to reintegration, including Father's incarceration, his drug and alcohol treatment, and the uncertainty about his living arrangements. Hampton testified that the Youthville staff was not really sure where Father had been living during the 6–month time period the staff had worked with him and that the staff did not really trust him to tell the truth about his living arrangements. More specifically, Hampton testified that although she believed Father had been living with his grandmother during that time, she later learned that he had been living with one girlfriend and was preparing to move in with a different girlfriend. Hampton also testified about some incidents when Father became angry and verbally abusive with her when he was told to report for drug testing.
In sum, we find the record supports the district court's finding of clear and convincing evidence that Father is unfit. Although Father does not directly challenge the sufficiency of the evidence supporting the district court's finding that his unfitness is unlikely to change in the foreseeable future, he appears to launch a collateral attack by arguing that such a decision infringed upon his Fifth Amendment right against self-incrimination; he should have received a continuance from the district court in this case in order to resolve his criminal case first. But this argument fails to recognize that the view of time in cases such as these must be that of “child time” and not “adult time.” A Kansas Court of Appeals case exemplifies this problem. In re D.T., 30 Kan.App.2d 1172, 56 P.3d 840 (2002). In that case, the father urged the district court for a continuance in termination proceedings for another 10 months, which would coincide with his release from prison. The father argued that it was in D.T.'s best interest to live with him. The court said that it would not force a 2–year–old child who had spent all but 1 month of her life in State custody to wait another 10 months and that the father's argument “glorifies his momentary contribution to her creation over her need for a permanent and stable home.” 30 Kan.App.2d at 1175.
In this case, Father's argument is similar; Father asks the court to wait until he is released from prison and for the additional time it will take for him to get his affairs in order and bond with G.H. Like In re D.T., this argument is not filtered through “child time” and places an overemphasis on the father-child blood relationship, while ignoring G.H.'s need for stability. The district court was justified in finding that this additional time was more than the State or Father should ask of G.H. and, as a result, in terminating Father's parental rights.
Father's continuing problem with incarceration, supplemented by his troubles with drugs, alcohol, and domestic violence all are sufficient to serve as the basis for the district court's finding that Father failed to adjust his circumstances in order to meet G.H.'s needs under K.S.A.2012 Supp. 38–2269(b)(8), regardless of the outcome of Father's pending criminal charges at the time of the termination hearing. Given the fact that such circumstances may have a serious impact on G.H. and because the existence of any one of the factors listed in K.S.A.2012 Supp. 38–2269(b) may establish grounds for termination of parental rights, we find clear and convincing evidence supports termination. See K.S.A.2012 Supp. 38–2269(f); In re Penn, 2 Kan.App.2d at 624–26.
Affirmed.