                           NOT DESIGNATED FOR PUBLICATION

                                               No. 122,202

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                  In the Interests of G.W. and J.W.,
                                           Minor Children.

                                    MEMORANDUM OPINION

        Appeal from Johnson District Court; KATHLEEN SLOAN, judge. Opinion filed May 15, 2020.
Affirmed.


        Richard P. Klein, of Olathe, for appellant.


        Elizabeth A. Billinger, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.


Before ARNOLD-BURGER, C.J., MALONE and GARDNER, JJ.


        PER CURIAM: M.R. (Mother) appeals the district court's decision terminating her
parental rights over her children, G.W. and J.W. Mother stipulated that she was an unfit
parent before the termination hearing, but she claims the district court erred in finding
that her unfitness was unlikely to change in the foreseeable future. She also claims the
district court abused its discretion in finding that termination of her parental rights was in
the children's best interests. Finding no error, we affirm the district court's judgment.


                           FACTUAL AND PROCEDURAL BACKGROUND

        J.W., a female, was born in 2010, and G.W., a male, was born in 2012. This was
the second child in need of care (CINC) case involving these two children. In the earlier




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case, the children were removed from Mother's home in 2014 and placed with Father.
Mother's parental rights over three other children were terminated in the earlier case.


       On December 14, 2017, the State filed a petition alleging G.W. and J.W were
CINC. That same day, after a temporary custody hearing, the district court placed the
children in the temporary custody of the Department for Children and Families (DCF)
because of Mother's incarceration and Father's inability to care for them. On March 8,
2018, Mother did not contest the petition, and the district court adjudicated the children
as CINC. The district court ordered a six-month reintegration plan for both parents.


       Efforts to reintegrate the family were unsuccessful. On January 15, 2019, the State
filed a motion to terminate parental rights, alleging Mother had failed to consistently
exercise visitation with her children; failed to provide proof of housing, income, or
transportation; failed to complete substance abuse counseling; failed to regularly
participate in therapy; failed to complete Higher Ground; and failed to provide proof of
regular urinalysis (UA) tests as requested. At a hearing on May 14, 2019, Mother and
Father stipulated that they were unfit parents. The district court continued the hearing 90
days to give the parents a chance to make progress toward reintegration.


       The district court held the termination hearing on August 30, 2019. At that
hearing, Father signed a relinquishment of his parental rights. The State called eight
witnesses, and the guardian ad litem (GAL) called an additional witness. Mother did not
testify and called no witnesses. We will summarize the testimony of the witnesses.


       Sara Larson, a licensed substance abuse specialist at Heartland RADAC,
completed a substance abuse assessment of Mother on June 7, 2018. Mother admitted to
Larson that she used PCP either every day or every other day from age 29 to her current
age of 37. Larson recommended intensive outpatient treatment until Mother could be
admitted into an inpatient facility.

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       Kara Hook was a case manager at Johnson County Mental Health and began
working with Mother in May 2018. Mother was diagnosed with major depressive
disorder, mild PCP use, and complicated bereavement. Hook testified that Mirrors, Inc.
was ready to admit Mother for their 28-day inpatient program on June 14, 2018, but
Mother was not ready because she had not set up rent and utility payments for the next
month or secured her apartment. Hook offered to drive Mother to inpatient treatment on
June 18 and went to her home, but Mother never came down to the car. Mother also did
not go with Hook to inpatient treatment on June 25 and August 28. Because of a car
accident, Hook waited to try again until October 4, but Mother could not be admitted then
because she needed a new assessment. Because Mother admitted she was still using PCP,
Hook shifted her efforts to finding outpatient treatment. On March 18, 2019, Mother was
admitted to Mirrors for inpatient treatment but left after nine days without completing the
program, complaining of pain from two recent car accidents. On April 18, 2019, when
Hook met with Mother again, Mother admitted she was still using PCP every three days.


       Shana Takacs, a clinician at Johnson County Mental Health, had worked with
Mother since April 29, 2019. Mother admitted that she had relapsed on July 4, 2019.
Takacs testified Mother was not yet ready to be discharged from their treatment program
due to her recent relapse.


       Lydia Shackelford was a child protection specialist for DCF from 2015-2018. She
investigated a report of emotional abuse of G.W. and J.W. and physical abuse of G.W. by
Mother in November 2017. J.W. told Shackelford about an incident where a neighbor hit
Mother after Mother tried to stop the neighbor from hitting his wife. Shackelford went to
Mother's home on December 11, 2017, to speak with Mother and discovered Mother
being arrested for warrants. She testified the home had wet clothes strewn around and
smelled like mildew.




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       Jacqueline Ross was a licensed clinical social worker assigned to work with
Mother and the children on February 25, 2019. Ross' role was to facilitate therapeutic
family visits. She testified G.W. did not want to go back to live with Mother because he
was afraid of a man that had hit her. It was almost impossible for Ross to redirect G.W.
from that subject. At another visit, G.W. repeatedly said to Mother that she used to beat
him with a belt. Mother grabbed G.W. and asked, "[W]hat's wrong with you?" Ross
believed Mother's actions were abusive and recommended an end to the therapeutic visits
because they were not in the children's best interests. Mother told Ross on several
occasions that she did not need substance abuse treatment.


       Judy Tauber, a Court Appointed Special Advocate (CASA), testified for the GAL.
Tauber served as the CASA for G.W. and J.W. since January 24, 2018. She testified both
children originally had difficulty in their placements and GW had an IEP and ADHD.
Tauber testified G.W. was more agitated and aggressive following visits with Mother.
She also testified the children mostly just asked Mother for stuff during visits.


       Laran Brice was a family support worker with KVC. Brice testified Mother missed
30 visitations between January and September 2018. One time, J.W. was transported for a
visit from Wichita, and Mother did not come. J.W. began screaming and crying and
locked herself in the bathroom when Mother did not appear. Brice began requiring the
parents to confirm their attendance at the visits beforehand. Brice also testified that
Mother tested positive for PCP on July 24, 2018. Mother was noncompliant with the
color code urinalysis testing and missed several tests. Mother did not provide Brice with
proof of any drug or alcohol treatment or individual therapy. Visits with G.W. and J.W.
began in Mother's home but were moved to the KVC office in Kansas City.


       Madeline Ford supervised this present case. Ford personally clarified the visitation
guidelines with Mother on October 19, 2018. At one point, Mother had not seen her
children in 23 weeks due to her failures to confirm or appear for visitation.

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       Halle Wright was the permanency case manager at KVC assigned to this case.
Mother never provided proof of housing, utilities, budget, income, or transportation.
Mother did not provide proof of completing a parenting class and did not follow
visitation guidelines. Wright was able to confirm participation in, but not successful
discharge from, Johnson County Mental Health's treatment program. Since Mother's
stipulation to unfitness, her meetings with Wright were more consistent, but Wright was
still concerned with Mother's substance abuse and Mother's ability to provide
documentation of completion of case plan tasks. Mother had two positive UAs for PCP
on July 8, 2019, and August 19, 2019, as well as another positive UA on January 3, 2019.
Out of 36 possible UAs, Mother submitted to only three of them, and all three tested
positive for PCP. Wright testified that, in her opinion, Mother had not made significant
progress since her stipulation of unfitness. Wright believed it was not in the children's
best interests to start over with visitations with Mother and that adoption was in their best
interests.


       The district court heard closing arguments on September 4, 2019, and took the
matter under advisement. On October 8, 2019, the district court issued its memorandum
decision terminating Mother's parental rights to G.W. and J.W. The district court found
Mother was unfit under K.S.A. 2019 Supp. 38-2269(b)(7), (b)(8), (c)(2), and (c)(3). The
district court also found the conditions of unfitness were unlikely to change in the
foreseeable future because Mother continued to use PCP, failed to maintain visits with
her children, failed to maintain even therapeutic contact with her children, missed
numerous UAs, and failed to complete drug treatment. The district court also noted the
earlier CINC case and the fact that G.W. and J.W. had been in State custody for nearly
two years. The district court found that the children deserved permanency and that
terminating Mother's parental rights was in their best interests. Mother timely appealed
the district court's judgment.




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                                          ANALYSIS

       On appeal, Mother claims the district court erred in terminating her parental rights
over G.W. and J.W. Although Mother stipulated that she was an unfit parent, she argues
that the district court erred in finding that her unfitness was unlikely to change in the
foreseeable future. She also argues that the district court abused its discretion in finding
that termination of her parental rights was in the children's best interests.


       The State argues that the district court's finding that Mother's unfitness was
unlikely to change in the foreseeable future was supported by substantial competent
evidence. The State also argues that the district court did not abuse its discretion in
finding that termination of Mother's parental rights was in the children's best interests.


       A district court may terminate parental rights when it "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. 2019 Supp. 38-2269(a). K.S.A. 2019
Supp. 38-2269(b) contains a nonexclusive list of factors for the district court to consider
when determining if a parent is unfit. K.S.A. 2019 Supp. 38-2269(c) contains additional
factors to consider when the child is not in the physical custody of a parent.


       The termination of parental rights requires the district court to make three
findings: (1) the parent is unfit as defined by Kansas law; (2) the parent's unfitness is
unlikely to change in the foreseeable future; (3) and the termination of parental rights is
in the child's best interests. See K.S.A. 2019 Supp. 38-2269(a), and (g)(1). Mother does
not dispute the unfitness finding. She challenges the district court's final two findings:
that her unfitness is unlikely to change in the foreseeable future, and that termination of
her parental rights was in G.W. and J.W.'s best interests.



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Did the district court err in finding that Mother's unfitness was unlikely to change in the
foreseeable future?

       Mother does not dispute the district court's findings that she did not complete a
reintegration plan, missed visits with her children, or missed UAs. Likewise, Mother does
dispute that those facts are an appropriate predictor of her unfitness in the foreseeable
future. But Mother argues that she showed she could properly care for her children before
the case began and during her supervised visitations at her house. Mother asserts she was
doing better with her drug addiction. The State counters that Mother had yet to provide
documentation to KVC showing any completion of her reintegration plan three months
after she stipulated to her unfitness. The State also argues the district court was correct to
look at Mother's past failures to adjust her circumstances.


       Mother has a constitutionally protected liberty interest in her relationship with
G.W. and J.W. Given its importance, that right has been deemed fundamental. See In re
M.S., 56 Kan. App. 2d 1247, 1255, 447 P.3d 994 (2019). A district court may dissolve the
legal bonds between parents and children "only upon clear and convincing proof of
parental unfitness." 56 Kan. App. 2d at 1255. When reviewing a district court's
determination that a parent is unfit for the foreseeable future,


       "an appellate court asks whether, based on the full evidentiary record considered in a
       light favoring the State as the prevailing party, a rational fact-finder could have found
       that decision 'highly probable, i.e., [supported] by clear and convincing evidence.' In re
       B.D.-Y., 286 Kan. [686, 705, 187 P.3d 594 (2008)]." 56 Kan. App. 2d at 1255-56.


       Appellate courts do not weigh evidence, pass on witness credibility, "or otherwise
independently decide disputed questions of fact." 56 Kan. App. 2d at 1256. Any conflicts
of evidence are resolved in the State's favor. 56 Kan. App. 2d at 1256.




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       This court uses "child time" to measure the "foreseeable future" because children
perceive time differently than adults. K.S.A. 2019 Supp. 38-2201(b)(4). "[C]hildren
experience the passage of time in a way that makes a month or a year seem considerably
longer than it would for an adult, and that different perception typically points toward a
prompt, permanent disposition." 56 Kan. App. 2d at 1263. Courts may look to parent's
past conduct as an indicator of future behavior. 56 Kan. App. 2d at 1264.


       K.S.A. 2019 Supp. 38-2269(b) provides a list of nonexclusive factors for a district
court to consider when determining unfitness and its likelihood to change in the
foreseeable future. Here, the district court found Mother was unfit under (b)(7)—that
KVC made reasonable efforts to rehabilitate the family—and (b)(8)—Mother's lack of
effort to adjust her "circumstances, conduct or conditions to meet the needs of the child."
K.S.A. 2019 Supp. 38-2269(c) provides additional factors for when the children are not
in the physical custody of a parent. Under this subsection, the district court found Mother
unfit under (c)(2)—Mother's failure to maintain regular visitation with her children—and
(c)(3)—Mother's failure to complete the reintegration plan ordered by the district court.


       After finding Mother to be an unfit parent, the district court found Mother's
unfitness was unlikely to change in the foreseeable future because the issues that brought
the children into State custody had not be addressed or fixed. To support its
determination, the district court made several findings:


               "The Court finds and concludes that these conditions of unfitness are unlikely to
       change in the immediate or foreseeable future. The concerns which brought these
       children into State custody on December 14, 2017 have not been addressed or rectified.
       [Mother] continues to use PCP, she failed to maintain visits with her children, she failed
       to utilize parenting skills in order to maintain even therapeutic contact with her children,
       she missed numerous UA's, she failed to complete drug treatment and she remains
       addicted to PCP. Her children had a prior CINC case that did not result in the children
       being placed with her. Her parental rights have been terminated on other children. She

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       was offered a reintegration plan and a case plan and neither was completed. [G.W.] and
       [J.W.] have been in custody for two years.
               "The past is a predictor of the future. The Court finds and concludes that the
       conditions of unfitness of the mother is unlikely to change in the immediate or
       foreseeable future. The father of both children has relinquished his parental rights."


       Clear and convincing evidence supports the district court's findings. In accepting
Mother's stipulation to unfitness, the district court continued the trial for 90 days to give
Mother a chance to "turn it around." That did not happen. After Mother stipulated to her
unfitness, she took two drug tests. Both tested positive for PCP. The therapeutic visits
were stopped by KVC and Ross following the fourth visit when G.W. accused Mother of
beating him with a belt and Mother grabbed G.W.'s arm and yelled at him. Since
Mother's stipulation, she had met with her case manager more regularly to discuss her
case and reintegration plans. But, at the time of the termination hearing, Mother had not
provided her case manager with proof of housing, utilities, or reliable transportation.
Likewise, Mother had not provided any proof that she was continuing or had completed
any type of drug treatment. At the hearing, Wright testified in her belief that Mother had
not made significant progress toward reintegration since her stipulation.


       At the time of the termination hearing, G.W. and J.W. had been in State custody
for nearly two years. This was their second CINC case. Two years is a long time in "child
time." In those two years, Mother made no measurable progress toward achieving
reintegration with the children. The district court gave her 90 more days, and Mother still
failed to make any significant progress. Based on the full evidentiary record considered in
a light favoring the State, we conclude the district court's finding that Mother's unfitness
was unlikely to change in the foreseeable future was supported by clear and convincing
evidence. See In re M.S., 56 Kan. App. 2d at 1255-56.




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Did the district court abuse its discretion in finding that termination of Mother's parental
rights was in the children's best interests?

       Next, Mother argues that the district court abused its discretion by finding that
termination of her parental rights was in the children's best interests. She argues that in
making this finding, the district court gave no consideration to the children's physical,
mental, or emotional needs. Mother asserts the best course of action for her children was
reintegration into her home. The State asserts the district court did not abuse its discretion
given the young ages of the children, the length of time since removal, Mother's PCP use,
and this being the children's second removal proceeding. The State argues the district
court's decision was necessary to provide G.W. and J.W. with permanency.


       Once a district court determines a parent is unfit and that unfitness is unlikely to
change in the foreseeable future, it must determine if termination is in a child's best
interests. K.S.A. 2019 Supp. 38-2269(a), and (g)(1). "In making the determination, the
court shall give primary consideration to the physical, mental and emotional health of the
child. If the physical, mental or emotional needs of the child would best be served by
termination of parental rights, the court shall so order." K.S.A. 2019 Supp. 38-2269(g)(1).


       A district court's decision that termination of parental rights is in the best interests
of the children is reviewed for abuse of discretion. A district court abuses its discretion if:
(1) no reasonable person would agree with its ruling; (2) it commits an error of fact; or
(3) it commits an error of law. See In re M.S., 56 Kan. App. 2d at 1264. Mother does not
allege the district court committed a factual or legal error. The party asserting the district
court abused its discretion bears the burden of showing such abuse of discretion. Gannon
v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).


       In giving primary consideration to the physical, mental, and emotional health of
the children, "the court must weigh the benefits of permanency for the children without


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the presence of their parent against the continued presence of the parent and the attendant
issues created for the children's lives." In re K.R., 43 Kan. App. 2d 891, 904, 233 P.3d
746 (2010). The district court should consider the nature and strength of the relationships
between the children and the parent and the trauma that termination may cause the
children and weigh those considerations against further delay in finding permanency for
the children. 43 Kan. App. 2d at 904.


       Here, a reasonable person could agree with the district court's finding that
termination of Mother's parental rights was in G.W.'s and J.W.'s best interests because the
children need permanency. It had been nearly two years since the children's removal from
Mother's home—not counting the previous CINC case. Mother had failed to complete
almost all of her tasks in the reintegration plan. She continued to struggle with substance
abuse and frequently missed her visits with the children. G.W. often acted out after the
visits. He told Wright he did not want to return to Mother's home. Following one
scheduled visit, J.W. screamed and cried when she learned Mother was not coming.


       The district court stated in its memorandum decision that it did not doubt that
Mother loved G.W. and J.W. "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). Based on the evidence at the
hearing, we conclude the district court did not abuse its discretion in finding that
termination of Mother's parental rights was in the children's best interests.


       Affirmed.




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