NOT DESIGNATED FOR PUBLICATION
No. 124,280
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of L.B. and O.B.,
Minor Children.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER, judge. Opinion filed April 8,
2022. Affirmed.
Grant A. Brazill, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, for appellant
natural father.
Kristi D. Allen, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before ATCHESON, P.J., WARNER and HURST, JJ.
PER CURIAM: The appellant—the natural father of L.B. and O.B.—challenges the
district court's decision to terminate his parental rights. The court found that the
appellant, whom we refer to as Father, was unfit based on several statutory factors,
stemming in part from Father's disappearance, arrest, jail time, and potential criminal
culpability while this case was pending. The court also found that Father's unfitness was
unlikely to change in the foreseeable future and that terminating his rights was in the
children's best interests. Father asserts on appeal that the evidence did not support the
court's findings that he was an unfit parent. After carefully reviewing the record before us
and the parties' arguments, we affirm the court's decision.
1
FACTUAL AND PROCEDURAL BACKGROUND
In June 2019, Wichita police conducted a welfare check after receiving a report
that two young children were chasing a dog around a trailer park unsupervised. The
children—L.B., born in 2013, and his younger sister O.B., born in 2015—were dirty but
otherwise appeared healthy.
L.B. and O.B. informed the police that they did not know where their mother was.
Mother eventually arrived and spoke to the police and to the caseworkers from the
Kansas Department for Children and Families (DCF). She explained that the children
lived with her and that their 15-year-old cousin was supposed to be watching them. DCF
then learned that Mother's water and electricity were recently shut off. Mother agreed to
take a drug test and tested positive for multiple illegal drugs.
A few days later, DCF contacted Father, who was no longer in a relationship with
Mother and did not speak to her often. Father had gotten out of jail a month earlier and
had just started a new job. He told the caseworker that he was splitting his time between
living with a friend and living with his sister when he had L.B. and O.B. Father also
agreed to submit drug tests; his original urinalysis was negative, but his first hair test was
positive for methamphetamine.
About a week after the initial report, the district court entered an ex parte order to
place the children in DCF custody. The State then petitioned the district court to
adjudicate L.B. and O.B. as children in need of care. The petition alleged, with regard to
Father, that he could not care for the children because he had no stable housing, tested
positive for methamphetamine, was on probation, and had pending criminal charges. The
State was also concerned about Father's extensive criminal history and a history of
domestic violence with Mother, which L.B. had described to caseworkers. Mother had
obtained a protection from abuse order against Father in 2017 for an argument that the
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children witnessed. And DCF had received five reports about the family in the past six
months, including allegations of domestic violence in front of the children and physical
abuse of L.B., who at that time was five years old.
Father and Mother each submitted no-contest statements in response to the
petition. In October 2019, the district court adjudicated L.B. and O.B. to be children in
need of care. The court then set a permanency hearing for two months later, with a stated
goal of reintegration.
At the December 2019 permanency hearing, the court found that Father was
making progress toward reintegration. Father had been employed by a general contractor
for several months. He had completed a substance-abuse evaluation, had started therapy
and drug treatment, and had attended budgeting and nutrition classes. Father also owned
a four-bedroom trailer that he was presently renting to others for income; he was prepared
to move into the home with L.B. and O.B. if he obtained custody. And other than the hair
follicle test in August 2019 that was positive for methamphetamine, none of Father's
other random tests reflected drug use.
That said, though Father had made significant strides toward reintegration, not all
the evidence was positive. In particular, the State had lingering concerns that Father did
not have a driver's license and had pending criminal charges for auto theft, obstruction,
and fleeing or eluding; if Father were convicted, these offenses could carry lengthy prison
sentences. And the history of Father's violence and abuse remained a significant concern.
Over the next several months after the permanency hearing, Father continued to
make progress and complete reintegration tasks:
• He pleaded guilty to the pending criminal charges and was placed on 12 months'
probation (with an underlying 48-month prison sentence).
3
• He completed a substance-abuse assessment and continued attending the required
classes. He was employed, albeit on a cash-payment basis, and when he was laid
off in early 2020, he was able to find work shortly thereafter.
• He was in a serious relationship with his soon-to-be fiancé, who also submitted to
background checks and random drug testing—all of which were negative.
Father and his girlfriend also consistently attended weekly visits with L.B. and O.B. in
person or virtually, as the pandemic required, and Father regularly communicated with
his case manager. These visits went well, and the supervisor never observed any issues in
Father's interactions with the children.
In early summer 2020—one year into the case—the case manager was prepared to
reintegrate L.B. and O.B. with Father after his continued progress over the past year.
Father sold his trailer and was preparing to move into a four-bedroom house with his
fiancé and her three children. And Father and his fiancé had begun family therapy with
L.B. and O.B., one of the final steps before the children would be ready to reintegrate
with their parents.
But in July 2020, this progress ground to a halt. After Father allegedly participated
in an armed home invasion, he was charged with aggravated burglary, aggravated
kidnapping, two counts of kidnapping, and aggravated robbery. With a criminal history
score of A, Father would face up to 825 months in prison if he were convicted of these
charges. The State also sought to revoke Father's recently granted probation and impose
his underlying 48-month prison sentence.
4
When these new charges were filed, Father disappeared and was missing for over
a month. Neither the children's case team nor his family knew his whereabouts during
this period. He also suffered a gunshot wound at some point while on the run. Father was
eventually apprehended and arrested in late August 2020; he spent the next three months
in jail and was released on bond in November 2020.
Not surprisingly, Father ceased making progress with his children when he
disappeared or was in jail. During that time,
• Father missed several significant incidents involving his children. O.B. was
hospitalized for medical issues, and L.B. was hospitalized twice for mental health
episodes; L.B.'s mental health led the case team to separate him from O.B. and
place him in a new foster home.
• Father's visits were stalled, along with the family therapy he and his fiancé had
recently started with the children.
• In light of Father's new charges, the case manager asked that he complete a
batterers-intervention-program assessment or attend anger-management classes
(though Father was never ordered by a court to complete these tasks).
And shortly after Father's arrest, the State changed its approach to the case and moved to
terminate his parental rights.
Nevertheless, after he was released from jail in November 2020, Father attempted
to resume regular visits with the children. At the outset, these visits seemed to go well,
but as time went on, caseworkers had significant concerns that the children feared Father
and continued to suffer consequences from his past behavior.
5
From November 2020 to April 2021, Father continued visits with L.B. without
issue. But the same was not true for O.B., who was diagnosed with posttraumatic stress
disorder from trauma she experienced living with Father, Mother, and L.B. O.B.'s
therapist reported that even though O.B. seemed fine during visits, she experienced
persistent outbursts and nightmares, and she urinated on herself before and after visits.
According to the therapist, there were no issues during O.B.'s visits with Father because
O.B. felt pressure to please Father. Her therapist also reported that O.B.'s mental health
markedly improved when she was not having visits with Father. Based on this
information, the case team suspended Father's visits with O.B. entirely in January 2021
due to concerns about her mental health when around Father and her brother.
The district court conducted an evidentiary hearing on the State's termination
request (which involved both Mother and Father) over four days in April and May 2021.
At the time of the hearing, the pending charges against Father had not been resolved, nor
had his probation been revoked. Father had lived in the four-bedroom home with his
fiancé and her children for several months. After a span of unemployment—including his
recent disappearance and incarceration—Father was working full-time. And he had
completed nearly all his court-ordered reintegration tasks.
At the hearing, Father presented evidence of his progress in his reintegration case
plan. But he also acknowledged his four-plus month disappearance and incarceration in
the middle of the case. He acknowledged potential looming incarceration from his July
2020 charges, pending probation revocation, or both. Father and his fiancé agreed that
she could, and would, care for the children—including coparenting with Mother if
necessary—should he be ordered to serve prison time.
The hearing also included testimony regarding Father's actions when he lived with
the children and Mother—long before the July 2020 incident. Father missed both L.B.'s
and O.B.'s births because he was incarcerated, and he had been incarcerated on and off
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for much of their lives. By Father's own admission, he had an extensive criminal history
and had been convicted of "everything." And although he felt he had a good relationship
with L.B. and O.B., he knew that they feared him and he admitted to disciplining them
with a "whoopin'" and making them "hold the wall up"—that is, stand against a wall with
their nose touching it and their hands above their head.
Father also acknowledged that he had physically abused Mother and that L.B. had
witnessed his actions. The evidence showed that after L.B. exhibited violence in foster
care—leading to his separation from O.B. and a new foster placement—L.B. stated that
he could use violence in that situation because his dad did; he told his therapist that his
dad hits women.
Finally, the court heard testimony regarding the children's behavioral and mental
health needs and Father's apparent failure to prioritize those needs. The evidence showed
that Father opposed giving L.B. his recommended medication, and Father missed meeting
with L.B.'s provider about that medication when he disappeared. And at the termination
hearing, Father could not remember that in one of his last visits with O.B., L.B. had
threatened to kill her.
After considering the evidence, the district court terminated both parents' parental
rights in June 2021—two years after the case began. As to Father, the court found that he
was unfit to parent L.B. and O.B. based on several statutory factors. The court also
determined that Father's unfitness was unlikely to change in the foreseeable future and
that termination was in L.B.'s and O.B.'s best interests. Father now appeals, claiming the
evidence did not support the district court's findings relating to his unfitness.
7
DISCUSSION
A parent has a constitutionally protected liberty interest in the relationship with his
or her children. Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Thus,
before terminating parental rights, Kansas law requires a district court to find the State
has proved that the parent is unfit, that the conduct or condition that renders the parent
unfit is unlikely to change in the foreseeable future, and that termination of parental
rights is in the children's best interests. K.S.A. 2020 Supp. 38-2269(a), (g)(1). Because of
the fundamental nature of this right, any findings relating to a parent's unfitness must be
proved by clear and convincing evidence. K.S.A. 2020 Supp. 38-2269(a); In re R.S., 50
Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).
When reviewing a finding of parental unfitness, this court must determine, after
considering all the evidence in a light favoring the State, whether the evidence is
sufficient to support the court's decision—that is, whether a rational fact-finder could
have found it highly probable that the parent was unfit. In re B.D.-Y., 286 Kan. 686, Syl.
¶ 4. We do not reweigh conflicting evidence, pass on the credibility of witnesses, or
otherwise independently decide disputed questions of fact. 286 Kan. at 705.
After finding a parent unfit—both at the time of the termination hearing and for
the foreseeable future—the district court must determine if termination of parental rights
is "in the best interests of the child." K.S.A. 2020 Supp. 38-2269(g)(1). This assessment
gives "primary consideration to the physical, mental and emotional health of the child."
K.S.A. 2020 Supp. 38-2269(g)(1). Because determining what is in a child's best interests
is inherently a judgment call, we will only overturn a district court's best-interests
determination when it constitutes an abuse of discretion. In re R.S., 50 Kan. App. 2d
1105, Syl. ¶ 2. A district court exceeds the broad latitude it is afforded if it rules in a way
no reasonable person would have under the circumstances, ignores controlling facts or
8
relies on unproven factual representations, or acts outside the appropriate legal
framework. State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 60, 392 P.3d 68 (2017).
Father argues that the record is insufficient to support the district court's findings
by clear and convincing evidence that he was unfit to parent L.B. and O.B. He asserts
that—aside from the months when he was missing or in jail in 2020—he followed orders,
completed tasks, and made significant progress. Father points out that he had not been
convicted of any new crimes or had his probation revoked at the time of the termination
hearing. And he asserts that, in the event he must go to prison, he has a plan for his fiancé
to care for the children. Father also argues some of the court's unfitness findings were out
of his control, such as pandemic-related delays and O.B.'s suspended visits.
As we discuss below, the fundamental flaw in Father's arguments is that they ask
this court to reweigh the evidence presented to the district court. In other words, Father
asks that we find the evidence relating to compliance with the case plan and other actions
to be more compelling than the district court did. And he asks that we place less emphasis
on the factors the court found particularly persuasive—Father's history of violence, his
disappearance and arrest during the case, and the possibility that he might be incarcerated
for a significant period of time while L.B. and O.B. are growing up.
But it is not the role of an appellate court to reweigh the evidence presented at
trial. Instead, we must determine whether there is evidence in the record to support the
district court's findings. If that evidence exists, and if the district court's legal conclusion
flowing from those findings is sound, we must affirm the court's judgment. We do so
here.
9
Unfitness
Before terminating parental rights, a district court must determine whether a parent
is unfit—that is, whether the parent engages in conduct or has a condition that renders
him or her "unable to care properly for a child"—and whether that unfitness is "unlikely
to change in the foreseeable future." K.S.A. 2020 Supp. 38-2269(a). To assess a person's
fitness or unfitness as a parent, the district court considers, among other things, the
several factors listed in K.S.A. 2020 Supp. 38-2269(b) and (c). Depending on the facts
and circumstances of each individual case, evidence showing any one of these factors can
be enough to support a finding of parental unfitness. K.S.A. 2020 Supp. 38-2269(f).
Here, the district court found that several factors listed in K.S.A. 2020 Supp.
38-2269 were present and relevant in this case:
• The court found Father had used intoxicating liquors or narcotics or dangerous
drugs of such duration or nature as to render him unable to care for the children's
needs. See K.S.A. 2020 Supp. 38-2269(b)(3).
• The court found that the caseworkers had engaged in reasonable efforts to
rehabilitate the family, but those efforts had failed as a result of Father's actions or
inactions—notably, Father's disappearance, arrest, and jail time following the
events in July 2020. See K.S.A. 2020 Supp. 38-2269(b)(7).
• The court found that Father had not adjusted his circumstances, conduct, or
conditions to meet the children's needs. See K.S.A. 2020 Supp. 38-2269(b)(8).
• The court found that the children have been in State custody for a lengthy time—at
least 15 of the most recent 22 months—because of Father's actions or inactions.
See K.S.A. 2020 Supp. 38-2269(b)(9). The court also found considerations in
10
K.S.A. 2020 Supp. 38-2269(c)(1), (c)(2), and (c)(3), which may arise when the
children are placed outside the family home, to be present here.
The district court concluded, in light of these findings and the evidence presented, that
the State had proved Father was unfit to parent L.B. and O.B.
In his appeal, Father challenges evidence underlying each of the district court's
findings relating to the statutory factors. We acknowledge that the evidence supporting
some of these findings is limited. For example, Father argues the evidence did not show
that he used drugs in such a way that would render him unable to care for L.B. and O.B.
within the meaning of K.S.A. 2020 Supp. 38-2269(b)(3) because he only tested positive
for methamphetamine at the beginning of the case. And Father asserts the evidence
showed he completed the court-approved reintegration plan, consistent with K.S.A. 2020
Supp. 38-2269(c)(3), and the requests that remained outstanding were merely requested
by caseworkers (and not ordered by the court). Accord In re J.W., No. 112,668, 2015 WL
8590309, at *11 (Kan. App. 2015) (unpublished opinion) (agency's action adding
requirements outside the court-approved reintegration plan was not a reasonable effort to
rehabilitate the family under K.S.A. 2014 Supp. 38-2269[b][7]). But even if we were to
agree with Father that the record does not support some of the district court's findings, we
nevertheless find there was sufficient evidence to support the court's ultimate conclusion
that Father was unfit.
In particular, Father's appeal seeks to downplay or minimize the role of his actions
in the summer and fall of 2020—when he allegedly engaged in violent criminal behavior,
went missing and ceased all contact with his children and the caseworkers, and eventually
was arrested and held in jail. Most of Father's arguments contain a caveat that asks this
court to observe Father's conduct other than what occurred in that period. In doing so,
Father notes that, at the time of the termination hearing, he had not been convicted of any
of the criminal charges stemming from that period, nor had his probation been revoked.
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In essence, Father claims that in the absence of a conviction, the district court should
have viewed that period as a blip of questionable behavior in an otherwise promising
progression toward reintegration.
Father analogizes his case to In re T.H., 60 Kan. App. 2d 536, 494 P.3d 851, rev.
denied 314 Kan. 855 (2021), where this court recently reversed a decision terminating an
incarcerated father's parental rights when he otherwise had supported his child and
provided for their housing and care while he was in prison. The father in In re T.H. would
be incarcerated for at least five years based on conduct that was unrelated to and occurred
months before the child-in-need-of-care case. Father argues that under our decision in In
re T.H., the district court here should not have considered the possibility that he could
face significant prison time arising out of the July 2020 events or his probation violation.
We do not read In re T.H. so broadly, however. And as we explained there, the
appropriateness of a district court's termination decision turns on the "facts of each case."
60 Kan. App. 2d 536, Syl.
In re T.H. analyzed a district court's finding of parental unfitness under K.S.A.
2020 Supp. 38-2269(b)(5)—the parent's "conviction of a felony and imprisonment." The
child in that case had lived with his father for most of his life and by all accounts was
"thriving" in the father's care. 60 Kan. App. 2d at 536. The father's incarceration
following his conviction was "the only reason for termination." 60 Kan. App. 2d at 550.
The facts of this case are different from In re T.H. in many ways. Here, L.B. and
O.B. had not lived with Father for much of their lives and had been living exclusively
with Mother, while Father was previously incarcerated. Both L.B. and O.B. are afraid of
Father. O.B. has expressed fear that Father would kidnap and kill her, and her fear of
Father—combined with physical and psychological manifestations of that fear—led to
caseworkers suspending visits in January 2021. Unlike the father in In re T.H., Father has
a history of violence against Mother; the children witnessed this abuse, and L.B. has used
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Father's past conduct to justify his own violent outbursts. And despite regular visits for
much of this case, Father went missing, returned with a gunshot wound, and was in jail
for three months in the middle of the State's reintegration efforts.
The district court was required to consider all the evidence presented to determine
whether the State had proved Father's unfitness. It thus heard evidence concerning
Father's actions before the case was filed and Father's conduct throughout the
proceedings (including Father's disappearance in July 2020, subsequent arrest, and jail
time). And this evidence was sufficient to support the district court's findings under
K.S.A. 2020 Supp. 38-2269(b)(7), (b)(8), and (b)(9).
K.S.A. 2020 Supp. 38-2269(b)(7) allows a district court to consider whether—and
why—reintegration failed, despite reasonable efforts by the caseworkers. Here, the State
presented evidence, through the caseworkers' testimony, regarding their efforts to
rehabilitate and reintegrate the family. In the first year of this case, the case manager
communicated and met with Father regularly—checking on his progress with completing
tasks, discussing concerns about the children, and working to involve his fiancé in
reintegration. The caseworkers facilitated regular meetings with Father and regular visits
with L.B. and O.B., even when virtual meetings and visits were necessary because of the
pandemic. There can be no doubt that these efforts were reasonable. In fact, in the
summer of 2020, the case manager—on the brink of transferring custody of the children
to Father—asked him to begin family therapy, the final step before reintegration.
For whatever reason, however, Father's conduct changed substantially in July
2020. He was charged with multiple violent crimes and disappeared, violating both the
court-ordered case plan and his probation. Yet the State's efforts to rehabilitate the family
did not stop. While Father was missing, the case manager made regular attempts to locate
him and kept in contact with his family and probation officer. When he was apprehended,
13
arrested, and jailed, the case manager sent him monthly letters with self-addressed
prepaid return envelopes so Father could communicate about the case while incarcerated.
When Father was released from jail in November 2020, the children were in
markedly different states than they had been the previous summer. L.B. had engaged in
violent conduct and had threatened his sister, causing them to be separated; L.B.
attempted to justify his conduct by pointing to Father's violent past. O.B. was fearful of
both L.B. and Father, and this fear manifested itself both physically and psychologically
around Father's visits, causing those visits to stop altogether. In other words, there is
evidence in the record to support the district court's finding that Father's own choices
derailed the caseworkers' reasonable efforts toward reintegration.
On appeal, Father focuses primarily on the additional tasks the case manager
asked him to complete—the anger management classes and the batterers-intervention-
program assessment—that were not part of the original court-ordered reintegration plan.
We note that these requests were made as a result of the events of July 2020 and their
aftermath; in light of those events, the case manager's requests were not unreasonable.
But even if those requests had not been made, the record supports the district court's
findings under K.S.A. 2020 Supp. 38-2269(b)(7).
K.S.A. 2020 Supp. 38-2269(b)(8) allows a district court to consider a parent's
efforts to adjust his or her circumstances, conduct, or conditions to the children's needs.
Father argues that the evidence here did not support an unfitness finding under this factor
because—even if he were eventually incarcerated, either as a result of new convictions
for the July 2020 charges or the revocation of his probation—he made plans for his fiancé
to care for the children.
But as we have discussed, Father's potential incarceration was not the only
evidence showing his lack of adjustment. Instead, the evidence showed that even though
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initially Father made strides in the case plan, things turned sour in the summer of 2020.
Father disappeared for over a month and lost contact not only with the case manager and
his probation officer, but with his family. He reappeared with a gunshot wound and
missed several months of visits with L.B. and O.B. while he remained in jail. Even
assuming Father committed no new crimes and faced no potential incarceration at the
time of the termination hearing, disappearing for over a month—especially when the case
was at the point of reintegration—shows a lack of effort to change his conduct and
circumstances.
Though Father appears to have had a backup plan if he went to prison—having his
fiancé care for L.B. and O.B.—that proposal does not render the district court's finding
under K.S.A. 2020 Supp. 38-2269(b)(8) erroneous. Father is correct that having a care
plan in the event of incarceration is one consideration the court can take into account. See
In re T.H., 60 Kan. App. 2d at 552. But once again, Father overlooks that fact that K.S.A.
2020 Supp. 38-2269(b)(8) is not just about incarceration; it is about a failure to change
his circumstances and conduct. The evidence in the record is sufficient to support the
district court's finding under K.S.A. 2020 Supp. 38-2269(b)(8).
K.S.A. 2020 Supp. 38-2269(b)(9) allows a district court to consider, when at least
one of the factors listed in K.S.A. 2020 Supp. 38-2269(c) apply, whether, as a result of a
parent's actions or inactions, children have had been in the State's custody "for 15 of the
most recent 22 months." Father acknowledges that L.B. and O.B. have been in State
custody for over 15 of the most recent 22 months, but he asserts that part of this time is
attributable to the COVID-19 pandemic. He also challenges the district court's findings
relating to the predicate considerations in K.S.A. 2020 Supp. 38-2269(c).
Turning to Father's first argument, the record does not support his assertion that
the pandemic caused L.B. and O.B. to be in State custody for more than 15 of the last 22
months. While it is true that both Kansas and Sedgwick County implemented stay-at-
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home orders in the spring of 2020, Father does not explain how these orders impacted
this case. Instead, the record shows that despite the pandemic, Father made significant
strides that spring—while the stay-at-home orders were in effect. As we have indicated,
these strides were interrupted not by the pandemic, but by Father's own actions.
The record also supports the district court's finding that at least one of the
circumstances in K.S.A. 2020 38-2269(c) were applicable. The district court relied on
K.S.A. 2020 Supp. 38-2269(c)(1) ("[f]ailure to assure care of the child in the parental
home when able to do so"); K.S.A. 2020 Supp. 38-2269(c)(2) ("failure to maintain
regular visitation, contact or communication with the child or with the custodian of the
child"); and K.S.A. 2020 Supp. 38-2269(c)(3) ("failure to carry out a reasonable plan
approved by the court directed toward the integration of the child into a parental home").
But only one of these considerations needed to be present to support the court's finding
under K.S.A. 2020 Supp. 38-2269(b)(9).
Independent of the district court's analysis of Father's housing plans or visitation
efforts, the record supports the court's finding that K.S.A. 2020 Supp. 38-2269(c)(3)
applied. In his challenge, Father reiterates his previous argument relating to the
caseworkers' efforts after his arrest and jail time in the fall of 2020. But just as this
argument was not persuasive under K.S.A. 2020 Supp. 38-2269(b)(7), it is similarly
unconvincing here.
For these reasons, we conclude that the district court's findings under K.S.A. 2020
Supp. 38-2269(b)(7), (b)(8), and (b)(9) are supported by sufficient evidence in the record.
In light of these findings and the evidence presented, the district court did not err when it
found Father was unfit within the meaning of K.S.A. 2020 Supp. 38-2269.
16
Unfitness to Continue for the Foreseeable Future
After making an unfitness finding, a district court must determine whether a
person's unfitness as a parent is likely to change in the foreseeable future. K.S.A. 2020
Supp. 38-2269(a). A court evaluates "foreseeable future" from a child's perspective
because children have a different perception of time. In re R.S., 50 Kan. App. 2d at 1117.
For a child, "a month or a year seem[s] considerably longer than it would for an adult." In
re M.S., 56 Kan. App. 2d 1247, 1263, 447 P.3d 994 (2019); see K.S.A. 2020 Supp. 38-
2201(b)(4). A court can look to a parent's past conduct as a predictor of the foreseeable
future. 56 Kan. App. 2d at 1264; In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467
(1982).
Father does not challenge the district court's finding that his unfitness will
continue for the foreseeable future. For the sake of completeness, however, we note that
there is evidence in the record to support the district court's finding. At the termination
hearing, when the case had been pending almost two years, L.B. was seven and O.B. was
six years old. They had been in foster care since June 2019—a significant portion of both
their lives. When Father was missing for a month and went to jail for three months, that
period would have seemed far longer for L.B. and O.B. than it would for an adult. Indeed,
the evidence presented regarding the children's actions during that period and their
conversations with their therapists showed that Father's actions during those few months
had a profound impact on them. The children's therapists testified at the termination
hearing that, given these setbacks, it would be at least another nine months before
reintegration could be considered. Putting this into perspective for O.B., such a delay
would mean that almost half her life would have been spent in State custody and foster
care—still without any guarantee of permanency.
Father's actions during that period also suggested that he has not learned to change
his behavior, even when he knew that his parental rights depended on it. Father made
17
some laudable efforts during the pendency of this case—refraining from drug use and
going through drug treatment, providing a home for the family, visiting the children, and
generally complying with the court-ordered case plan. But intertwined with his progress
was a troubling pattern of recurring violent lapses. Father had abused Mother in front of
L.B. when he was young, and this conduct affected both children directly or indirectly.
Father had been entangled with the criminal justice system throughout the children's
lives. He was incarcerated when both were born and continued to have legal trouble as
they got older. When this case began in June 2019, Father was recently released from
three months of incarceration. He was on probation during this case and admitted to
absconding—a probation violation that could result in the imposition of his underlying
prison sentence. And Father was charged with serious felonies right before he went
missing, more than a year into the State's reintegration efforts.
In short, there was sufficient evidence presented at the termination hearing to
support the district court's conclusion that the circumstances that led to Father's unfitness
were unlikely to change for the foreseeable future.
Best Interests of the Children
Father also does not challenge the district court's determination that termination of
his parental rights was in the children's best interests, and the district court did not abuse
its discretion when it reached that conclusion. During the termination hearing, the State
presented evidence that both L.B. and O.B. suffer significant mental health challenges
stemming from their time with Father and Mother. In foster care, L.B. had to be separated
from O.B. because of violent behavior that he claimed to have learned from Father. And
O.B. is so fearful of Father that caseworkers had to suspend visits with Father to preserve
her mental health.
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The evidence also showed that L.B. and O.B. both need consistency, which Father
had not provided. Just when he appeared to be making significant strides, Father
disappeared, was arrested on serious felony charges, and went to jail. When he was gone,
he missed hospitalizations, family therapy, and visits. Father has also shown a reluctance
to acknowledge the severity of the children's issues and the effect of his behavior on their
well-being. The district court did not abuse its discretion when it determined that
terminating Father's parental rights is in the children's best interests.
Before concluding our discussion, we pause to address Father's consternation
regarding the drastic change in the State's position between May 2020, when the case
appeared to be progressing toward reintegration, and August 2020, when the State moved
to terminate his parental rights. It is true, as Father indicates, that the evidence at the
termination hearing showed that the State was on the verge of reintegration before
Father's actions and disappearance in July 2020. Father's conduct during that period, and
the potential consequences that may be associated with those actions, are troubling. And
several other troubling conditions relating to the children came to light—or significantly
worsened—during that same period.
We need not speculate as to whether the district court would have terminated
Father's parental rights if an evidentiary hearing had been held in this case in June 2020
rather than April and May 2021. Instead, we must determine whether the evidence
presented at the hearing was sufficient to support the district court's finding that the State
proved Father's unfitness by clear and convincing evidence. We conclude the State made
this showing. Even excluding the possibility of Father's convictions following the July
2020 events and his potential incarceration, when we review the evidence in the light
most favorable to the State, as our standard of review requires, the record is sufficient to
support the district court's unfitness finding. We therefore affirm the district court's
decision.
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Affirmed.
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