In re C.C.

Court of Appeals of Kansas.Aug 10, 2012
281 P.3d 1147 (Kan. Ct. App. 2012)

No. 107,570.

2012-08-10

In the Interest of C.C., a Minor Child.

Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. Peter C. Hagan, of Wichita, for appellant natural father. David Lowden, chief attorney appellate division, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Sedgwick District Court; Timothy H. Henderson, Judge.
Peter C. Hagan, of Wichita, for appellant natural father. David Lowden, chief attorney appellate division, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.


MEMORANDUM OPINION


PER CURIAM.


Prior to terminating a parent's parental rights, the district court must find by clear and convincing evidence that the parent is unfit, the conduct or a condition which renders the parent unfit is unlikely to change in the foreseeable future, and that termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1). F.L. (Father), the natural father of C.C., appeals the district court's termination of his parental rights. We are asked to determine whether the district court's decision is supported by the evidence. Finding that it is, we affirm.

Factual and procedural History

In December 2010, the State filed a petition in which it sought to have C.C. and her siblings declared to be children in need of care (CINC). The petitions were filed after concerns were raised during the birth of C.C.'s newest sibling. Mother has Parkinson's disease and was unable to care for her five other children. Mother was also known to be a methamphetamine user, and she admitted to using both that drug and benzodiazepines during her pregnancy. Mother subsequently relinquished her parental rights.

At the time the CINC petition was filed, Father's paternity had not been conclusively established. He was incarcerated when the petition was filed, and there were suggestions that Father had both anger management and substance abuse issues. He was serving a 34–month sentence as the result of battery and assault convictions in 2006 and 2008. Mother was the victim in both cases.

Father failed to appear at the CINC hearing, resulting in a finding that C.C. was in need of care as to him by default. The State filed a motion to terminate Father's parental rights in April 2011. A hearing was scheduled on the matter in September 2011. However, Father failed to appear. At that hearing, the State introduced numerous exhibits to prove that Father's parental rights should be terminated. Based on Father's lack of participation and the evidence presented by the State, the district court granted the State's motion and terminated Father's parental rights.

Shortly after the hearing concluded, Father appeared. The district court granted his motion to set aside the judgment. At the subsequent December hearing, the district court heard testimony from Father's witnesses and two Youthville employees.

After considering both the evidence that was introduced in September and the testimony that was given in December, the district court found by clear and convincing evidence that Father was unfit and that his unfitness was unlikely to change in the foreseeable future. In so finding, the district court cited several statutory factors of unfitness. After determining that it would be in C.C.'s best interests, the district court terminated Father's parental rights. Father appeals that decision to this court.

Analysis

The district court is required to make three findings before terminating parental rights. The court must find by clear and convincing evidence that the parent is unfit, the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future, and that termination of parental rights is in the best interests of the child. K.S.A.2011 Supp. 38–2269(a), (g)(1).

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, 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.

In making a determination of unfitness, K.S.A.2011 Supp. 38–2269(b) and (c) provide factors for the court to consider. Although the court is not limited to the factors listed in the statute, the existence of any of one of the listed factors may establish grounds for termination. K.S.A.2011 Supp. 38–2269(f).

As to Father's unfitness, the district court relied on several statutory factors including physical, mental, or emotional abuse or neglect (K.S.A.2011 Supp. 38–2269[b][4] ); failure of reasonable efforts by appropriate public or private agencies to rehabilitate the family (K.S.A.2011 Supp. 38–2269[b][7] ); lack of effort on the part of the parent to adjust his circumstances to meet C.C.'s needs (K.S.A.2011 Supp. 38–2269 [b][8] ); failure to assure care of the child in the parental home when able to do so (K.S.A.2011 Supp. 38–2269[c][1] ); failure to maintain regular visitation, contact, or communication with the child or the custodian of C.C. (K.S.A.2011 Supp. 38–2269[c][2] ); failure to carry out a reasonable reintegration plan (K.S.A.2011 Supp. 38–2269[c][3] ); and failure to pay a reasonable portion of the cost of substitute physical care and maintenance (K.S.A.2011 Supp. 38–2269[c][4] ).

In support of these factors, evidence was presented that Father was incarcerated for two separate incidents of battery against Mother, one which occurred in 2006 and one which occurred in 2008. He went to jail shortly after C.C. was conceived. Although he did not have any contact with Mother while he was in prison, Father admitted that he had sexual relations with Mother prior to going to prison; he knew she was pregnant; and it crossed his mind that he may be the baby's father. Although Father testified that he asked for a DNA test 5 months after C.C.'s birth, he did nothing else to determine if he was C.C.'s father. Nineteen months after C.C.'s birth, Father was advised that a paternity test revealed that C.C. was his child. He was advised that as soon as he acknowledged paternity he could start visitation. Instead, he denied paternity and did not acknowledge paternity for 4 months. Within 4 months of his release from prison, Father was back in jail, this time for having police contact over violation of a protection order involving C.C. and her maternal grandmother.

Father failed to provide proof of the completion of all court orders. He lacked a stable residence, announcing only on the day of the hearing that he was living with his uncle. As a result, his uncle's home was not reviewed for placement, nor was Father aware that there would be requirements with which his uncle would have to comply. Father also testified that if C.C. were allowed to live with him, he would move in with his sister, who likewise had never been considered or reviewed as a resource placement. He failed to sign releases for YouthviUe to talk to his probation officer. He failed to complete urinalysis testing requested by YouthviUe. Due to his distrust of YouthviUe, Father failed to provide staff with proof of completion of parenting classes, anger management, and a clinical assessment, although he apparently completed them. He did not reveal his entire criminal history to the person conducting his alcohol and drug evaluation.

Father was unable to show proof of stable employment. He testified that since being released from prison he was trying to get his landscaping business started again, but that things were “slow.” Father did not have a valid driver's license at the time of the termination hearing.

Father failed to cooperate with YouthviUe despite that being a case plan task. He refused to share information about his progress on court orders or on his family members. His primary complaint on appeal is that he was served with a protection order when he went to YouthviUe for his first meeting to work on a case plan. He contends that this action destroyed his trust in Youthville's efforts and demonstrated Youthville's unwillingness to rehabilitate the family. What Father neglected to mention in his brief is that the State sought the order after Father told a family support worker that he would “have [C.C.] one way or another.” When asked if he was thinking of doing anything illegal, Father reportedly had a “smirk on his face” and leaned back in his chair with his hands crossed.

Father has never met C.C. He has seen a photograph of her on one occasion. Father's parents have never met C.C. Despite this, Father did not think it would be scary for C.C. to come to live with him and actually believed it would be beneficial. Father estimated that it would take 2 weeks for C.C. to become acquainted with him and feel comfortable in his home.

Father did not know any information about C.C, such as her physician, her immunization status, or whether she needed a car seat. Father has never provided financially for C.C. and claimed that he was barred from doing so by the protection order.

Father did not accept responsibility for his most recent incarceration; he claimed it was Grandmother's fault. When asked if he accepted any blame for being absent from C.C.'s life, Father only admitted to being around the “wrong people,” including Mother. Father blamed Youthville for sending him to jail. Father blamed his problems on “false accusations.” Father continued to deny that he was guilty of certain crimes, and so he told the judge that it was not his fault that he had been away from C.C. for so long.

Father failed to internalize any responsibility for his absence from C.C.'s life. His failure to acknowledge paternity, despite DNA evidence which conclusively established that he is C.C.'s father, caused a substantial delay in this case. Once Father did acknowledge paternity, his refusal to work with Youthville meant that he made little progress in moving towards reintegration. Given all of these facts and the district court's well-reasoned and factually supported order, we find that termination of Father's parental rights was supported by clear and convincing evidence. Accordingly, we affirm.