NOT DESIGNATED FOR PUBLICATION
No. 123,638
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of A.K., A Minor Child.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; RICHARD A. MACIAS, judge. Opinion filed September 3,
2021. Affirmed.
Laura E. Poschen, of Law Office of Laura E. Poschen, of Wichita, for appellant natural father.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before BRUNS, P.J., GARDNER and CLINE, JJ.
PER CURIAM: Father appeals the termination of his parental rights as to one of his
minor children. Although he stipulated to the district court's finding of unfitness, Father
contends that the district court erred in concluding that his unfitness is unlikely to change
in the foreseeable future. After carefully reviewing the record on appeal, we find clear
and convincing evidence to support the district court's findings and conclusions. We also
find a preponderance of evidence in the record to support the district court's conclusion
that termination of Father's parental rights is in the best interests of the minor child. As a
result, we conclude that the district court did not err by terminating Father's parental
rights to the minor child. Thus, we affirm the judgment of the district court.
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FACTS
In early 2019, A.K. was born in Wichita. Two days later, A.K. was placed into
protective custody because she tested positive for methamphetamine at the time of her
birth. At the hospital, Mother admitted to frequent drug use throughout the pregnancy as
well as recent periods of homelessness. A few days later, the State filed a child in need of
care (CINC) petition on behalf of both A.K. and an older half-sister who is not the subject
of this appeal.
The next day, the district court held a temporary custody hearing. Although
Mother attended the hearing, Father did not appear. The district court found that there
was probable cause to believe that the health and welfare of A.K. had been endangered
and that it was in the infant's best interests to be temporarily placed in the custody of the
Kansas Department for Children and Families (DCF). A few days later, Father was
arrested for a parole violation.
About a month later, the district court held an adjudication hearing. Mother
appeared at the hearing and did not contest the CINC petition. As a result, the district
court adjudicated A.K. to be in need of care and ordered that she remain in DCF custody.
Because Father had not been transported for the adjudication hearing, the district court
continued the hearing as to Father.
The following month, the district court held an adjudication hearing as to Father.
At the hearing, Father did not contest the CINC petition. Accordingly, the district court
again adjudicated A.K. to be in need of care and ordered that she remain in DCF custody.
Moreover, at the hearing, the district court accepted Father's acknowledgement of
paternity.
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Subsequently, the State filed a motion requesting that the district court find both
parents to be unfit and to terminate their parental rights pursuant to K.S.A. 2020 Supp.
38-2266. Ultimately, Mother voluntarily relinquished her parental rights as to A.K. On
the same day, Father stipulated to his present unfitness as a parent. Specifically, Father
stipulated to unfitness on the basis of the following five statutory factors:
• "[T]he 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." K.S.A. 2020 Supp. 38-
2269(b)(3).
• "[P]hysical, mental or emotional abuse or neglect or sexual abuse of a
child." K.S.A. 2020 Supp. 38-2269(b)(4).
• "[C]onviction of a felony and imprisonment." K.S.A. 2020 Supp. 38-
2269(b)(5).
• "[L]ack of effort on the part of the parent to adjust to the parent's
circumstances, conduct or conditions to meet the needs of the child."
K.S.A. 2020 Supp. 38-2269(b)(8).
• "[F]ailure to maintain regular visitation, contact or communication with the
child or with the custodian of the child." K.S.A. 2020 Supp. 38-2269(c)(2).
On December 8, 2020, the district court held a termination hearing. At the hearing,
the State presented the testimony of Grace Arzate—a permanency specialist with Saint
Francis Ministries—and Ginger Hampton—a social worker and supervisor with Saint
with Francis Ministries. In addition, Father testified on his own behalf. Also, Ledetra
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Jones—the court-appointed Guardian Ad Litem—told the district court that she believed
that it was in A.K.'s best interests for Father's parental rights to be terminated.
After considering the evidence and reviewing the court files, the district court
determined that Father was unfit and that the condition was unlikely to change in the
foreseeable future. Specifically, the district court found Father to be unfit under K.S.A.
2020 Supp. 38-2269(b)(4) because of "[p]hysical, mental or emotional abuse or neglect
or sexual abuse of the children," and under K.S.A. 2020 Supp. 38-2269(b)(5) because of
"[c]onviction of a felony and imprisonment." Finally, the district court concluded that the
termination of Father's rights was in A.K.'s best interests.
In support of its conclusions, the district court made the following findings on the
record:
"Now, on September—September 15th of 2020, we had the testimony from
[Father]. He had stipulated to present unfitness at the time. The unfitness to which he
testified at that time, and today, the testimony he gave today also included the following.
The criminal history already mentioned, 19 CR 1084, where he pled guilty to possession
of methamphetamine, it's a level 5.
....
"As I mentioned, [Father has] an extensive criminal history. Looks like it's
primarily in the last ten years. At the sentencing that he just had, he was granted a
downward departure. He was subject to, it looked like, 42 months. But the court gave a
downward departure to 16 months. And [Father] testified that's indeed what he has, 16
months, to serve. And then afterwards, I believe he was going to look at six months to
one year of post release supervision.
"Additionally, the Court finds [Father] has five children from five different
women. . . .
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"The children range in ages from 13, . . . and the subject minor child [is] almost
two years old.
"From the best the Court can tell, three of the children live with their respective
mothers, one was adopted, and [A.K.] is currently in foster care DCF custody, and has
been since her birth.
"According to [Father], he lost contact with the 13 year old when he was about 9
years old. . . . [I]t looks like one of the ten year olds, he'd only heard about, but he'd never
met. And then [another child is] with the . . . maternal great grandparents . . . having been
adopted.
"With respect to [another child] . . . [it] was hit and miss seeing the boy.
"With respect to [yet another child], the six year old, he's had no contact with
since 2016. And that's when there was a violation of a no contact order.
"According to [Father's] testimony, he has not formally paid child support
through the court. Reportedly he is subject to two child support orders on at least two of
the children, and he says that he is behind in payments, child support payments.
....
"[A.K.] is almost two years old. Unfortunately she does not know [Father]. She
doesn't have a bond with him. Presumably, if anything, she's got a bond with the
caretakers. I think it's been the only caretaker she's had since birth.
"[Father] will not be released for another 16 months. His intention then was to try
to integrate the child with him. By his own accord, he thinks it will take at least four to
six months once he got out of prison to establish himself, and perhaps even up to one year
before reintegration may occur.
"Now, this makes many assumptions. First, of all, it will require a successfully
completed sentence that [Father's] currently serving and including the post release. He
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will need to secure employment. And as I mentioned earlier, he's not had ongoing gainful
employment for approximately five years. He would go back to [automotive] detail and
then work his way up as I said. He says he will complete drug treatment. And I
mentioned before, he did that once before. But unfortunately suffered a relapse not long
after. At least it seems like within a year after, thereabouts. At least we know it's nine
months after release from prison.
"He'll need to secure a household. A household for himself. Initially he's going to
live with his aunt, what he hopes. And then his own place. But that's, quite frankly,
something that has not been consistent or stable for much of the last ten years.
"Ms. Arzate testified, and there was some testimony with respect to maintaining
contact with [Father] while he's in jail, and that he said he would send some emails.
Didn't always get an answer back, but I think he said he testified of the three he sent, he
received replies on two. Ms. Arzate indicated that it turned out that they can no longer
utilize that method for communication so she would have to send him a letter. That
whenever she did get some word from him, some type of contact, that she endeavored to
make a return by mail approximately two weeks from the time that she was requested to
find out some information. And when she had the answers, that she would communicate
with [Father]. The Court's going to find that that's not unreasonable under the
circumstances.
"Ms. Arzate also said for this child to wait another what, in effect, would be 20 to
28 months, if we used the 16 plus four at a minimum, or the 12 at the outside, it is not in
the best interest[s] for the child. She said you have to look at child time. Ms. Arzate said
child time is what time the child's in DCF custody. Child needs permanency. Neither of
which—well, permanency or stability, neither of which [Father] can presently, or in the
foreseeable future, provide.
....
"An additional 16 months, at a minimum, would be an extraordinary amount of
time for [A.K.] to wait for permanency. And that would be the earliest.
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....
"[Father] made a comment that [he] thought . . . this biology connection is what's
most important, and that's my words perhaps . . . but in [Father's] opinion, it's best to have
[A.K.] wait. No child should have to [wait] for a parent.
"I don't know the circumstances of [A.K.'s] placement, but my guess is she's not
wanting for anything right now. At least the testimony was she bonded with her
caregivers. Unfortunately she doesn't know [Father]. And to delay any type of
permanency for this child for another, you know, approximately two years, would
certainly not be in her best interest[s].
"Please keep in mind, and this is why . . . these types of case must be decided in
child's time. And that's set forth by Kansas case law. That's, [I]n re C.C., 29 Kan. App.
2d 950, that's a 2001 case. And then pursuant to K.S.A. 38-2269(g)(1), when deciding
these type[s] of cases, the court is required to consider the primary consideration to the
physical, mental, and emotional health of the child and the needs of [A.K.]. It's the child
that we have to look at this interest. Not [Father's] best interest. . . .
"Having previously made the finding of unfitness, and reaffirming that here
today, that's also the judgment of the Court, and this is by clear and convincing evidence
as to the unfitness and to the foreseeable future, that the conduct and condition which . . .
makes this unfitness finding is unlikely to change in the foreseeable future, and even
though we have an end date, and that end date is 16 months from now, given the tender
years of this child, she will have been in custody—well, virtually all her life, and it will
be at that point approximately four years old."
Consequently, the district court concluded that there was clear and convincing
evidence of Father's unfitness under K.S.A. 2020 Supp. 38-2269(b)(4) and (b)(5).
Although the district court found Father to be credible regarding his desire to have some
visitation with A.K. during the pendency of this action, it noted that it could not be
arranged because of Father's incarceration. Significantly, the district court found that "the
best gauge we have for future success is past conduct." Highlighting Father's failure to
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care and support his other children, the district court found that his "past conduct with
parenting any of [his] children is below the standards . . . the law requires."
ANALYSIS
"Natural parents who have assumed parental responsibilities have a fundamental
right to raise their children that is protected by the United States Constitution and the
Kansas Constitution." In re Adoption of C.L., 308 Kan. 1268, 1279, 427 P.3d 951 (2018).
The right entails a fundamental liberty interest shielded in the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. See Troxel v. Granville, 530
U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Hence, parental rights for a child
may only be terminated upon clear and convincing proof of parental unfitness. K.S.A.
2020 Supp. 38-2269(a); see also Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903
(2014).
Nevertheless, "[t]he preservation of a father's relationship with his child is the
starting point of a termination proceeding, not the finish line that a father must labor to
reach." In re Adoption of Baby Girl P., 291 Kan. 424, 433, 242 P.3d 1168 (2010). Under
the revised Kansas Code for Care of Children, a district court may terminate parental
rights only if it makes three findings: (1) 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; (2) the court finds by clear and convincing
evidence that the conduct or condition that makes the parent unfit is unlikely to change in
the foreseeable future; and (3) the court finds by a preponderance of the evidence that
terminating the parental rights is in the best interests of the child. K.S.A. 2020 Supp. 38-
2269(a), (g)(1); In re R.S., 50 Kan. App. 2d at 1115-16; see also In re D.H., 54 Kan. App.
2d 486, 488, 401 P.3d 163 (2017). Here, a review of the record reveals that the district
court made all three findings and applied the appropriate legal standards in this case.
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It is important to recognize that the sole issue presented on appeal is whether the
State presented "clear and convincing evidence that Father's present unfitness was
unlikely to change in the foreseeable future." In other words, Father does not challenge
the district court's finding of present unfitness under both K.S.A. 2020 Supp. 38-
2269(b)(4) ("[p]hysical, mental or emotional abuse or neglect") or K.S.A. 2020 Supp. 38-
2269(b)(5) ("[c]onviction of a felony and imprisonment"). Likewise, Father does not
challenge the district court's finding regarding the best interests of the minor child.
Consequently, we must determine whether clear and convincing evidence supports
the district court's decision regarding Father's future unfitness. K.S.A. 2020 Supp. 38-
2269(a). To do so, we must view the record in the light most favorable to the State—as
the prevailing party below—to decide whether a rational fact-finder could have found it
highly probable that Father's unfitness is unlikely to change in the foreseeable future. In
reviewing the record, we are not to reweigh the evidence, pass on the credibility of
witnesses, or redetermine factual questions. In re Adoption of Baby Girl P., 291 Kan. at
430-31.
Although there is no set amount of time that constitutes the "foreseeable future" in
a parental termination proceeding, K.S.A. 2020 Supp. 38-2201(b)(4) acknowledges "that
the time perception of a child differs from that of an adult and [the State should] dispose
of all proceedings under the code without unnecessary delay." Accordingly, Kansas
courts are to measure time in a termination case based on "the child's perspective, not the
parent['s], as time perception of a child differs from that of an adult." In re S.D., 41 Kan.
App. 2d 780, 790, 204 P.3d 1182 (2009) (finding a period of 11 months of incarceration
not to be within the foreseeable future from a child's perspective); In re M.B., 39 Kan.
App. 2d 31, 47-48, 176 P.3d 977 (2008) (father had seven months of imprisonment
remaining at the time of the termination hearing); In re D.T., 30 Kan. App. 2d 1172,
1175, 56 P.3d 840 (2002) (father had 10 months of imprisonment remaining at the time
of the termination hearing).
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Of course, it is impossible to ever predict the future with absolute certainty. As a
result, Kansas courts may reasonably look to the past conduct of a parent—as the district
court did in this case—as being indicative of future behavior. See In re K.L.B., 56 Kan.
App. 2d 429, 447, 431 P.3d 883 (2018). In the present case, the State presented evidence
to show that Father would not be released until he completed his 16-month prison
sentence, and he would then be subject to a period of postrelease supervision. He would
also need to reestablish himself in the community by finding a residence, getting a job,
and maintaining stability. In addition, he would be required to successfully complete a
parenting plan and be introduced into A.K.'s life over a period of time. Further, he would
need to find a way to avoid drugs and criminal activity—which are serious concerns
based on his prior history.
Examining the record, we find that the State presented evidence that A.K. was
born in 2019 and tested positive for methamphetamine due to her mother's drug use
during pregnancy. Within 36 hours of her birth, A.K. was placed into protective custody
and continues to be in foster care. She has never had a relationship with Father who was
arrested two weeks after A.K. was born and who has spent the majority of A.K.'s life in
prison. At the time of the termination hearing, Father was serving a 16-month sentence
and—by his own admission—would need up to a year to fully reintegrate back into
society after his release.
This is not a case in which the district court terminated Father's parental rights
simply based on his current incarceration. Rather, the district court also looked to the
evidence presented by the State regarding Father's criminal and substance abuse history
as well as to the very limited relationships he had with his four other children prior to his
current incarceration. In announcing its decision, the district court found that Father has
"an extensive criminal history" and, as a result, had "been incarcerated six to seven years"
between the age of 18 and 33. In addition, the district court found that Father had been on
parole or probation on several occasions.
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We pause to note that Father suggests his inability to meaningfully participate in a
parenting plan was due to circumstances beyond his control. However, the record reveals
that the district court considered this argument in rendering its opinion. As a result, the
district court did not find Father to be unfit due to a "[f]ailure to maintain regular
visitation, contact or communication with the child or with the custodian of the child"
pursuant to K.S.A. 2020 Supp. 38-2269(c)(2). Instead, as discussed above, the district
court found Father to be unfit pursuant to K.S.A. 2020 Supp. 38-2269(b)(4) ("physical,
mental or emotional abuse or neglect") or K.S.A. 2020 Supp. 38-2269(b)(5) and
("conviction of a felony and imprisonment"). Even more significant is the fact that Father
stipulated that—at the time of the termination hearing—he was unfit to parent A.K., and
the only issue presented on appeal is whether "the District Court erred in its
determination that Father's present unfitness was unlikely to change in the foreseeable
future."
As another panel of this court noted, "[w]e 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). Viewing the evidence in the
record in a light most favorable to the State, we find the evidence to be both clear and
convincing evidence in support of the district court's determination that Father's unfitness
is unlikely to change in the foreseeable future based on A.K.'s sense of time. Further, we
find that the district court's consideration of the passage of time from A.K.'s perspective
is consistent with the guidance provided by the Kansas Legislature in K.S.A. 2020 Supp.
38-2201(b)(4) as well as with Kansas appellate cases.
In conclusion, considering the evidence in the record in the light most favorable to
the State, as we are required to do, we find clear and convincing evidence to support the
district court's finding that the conduct or conditions rendering Father unfit to care for
A.K. was unlikely to change in the foreseeable future, as viewed in light of a child's
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perspective of time. In addition, we find that, under the circumstances presented, it was
reasonable for the district court to conclude that termination of his parental rights—albeit
a difficult decision—was in A.K.'s best interests. We therefore affirm the district court's
order terminating Father's parental rights.
Affirmed.
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