In re M.H. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,919
COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of M.H. and G.H.,
Minor Children.
MEMORANDUM OPINION
Appeal from Phillips District Court; PAULA D. HOFAKER, judge. Opinion filed December 18,
2020. Affirmed in part and dismissed in part.
S. Scott Sage, Sage & Sage Law Office, of Phillipsburg, for appellant natural father.
Melissa M. Schoen, county attorney, for appellee.
Aronda L. Strutt, of Stockton, guardian ad litem.
Before GARDNER, P.J., BUSER and BRUNS, JJ.
PER CURIAM: Father appeals the termination of his paternal rights to his children
M.H. and G.H., challenging the district court's findings regarding his unfitness and the
best interests of the children. Father also argues that the district court erred by not
appointing a permanent custodian. Finding no error, we affirm.
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Factual and Procedural History
Father's Incarceration
In the summer of 2016, Father was arrested on rape and assault charges in
Pennsylvania. He was released on bond in February 2017 but was later convicted of
aggravated indecent assault and indecent assault without consent in violation of 18 Pa.
Stat. § 3125(a)(1) and 18 Pa. Stat. § 3126(a)(1). In November 2018, a Pennsylvania state
court sentenced Father to a minimum of three years and six months and a maximum of
seven years in prison. He was sent to State Correctional Institution-Phoenix in
Collegeville, Pennsylvania to serve his sentence. According to Father, his earliest release
date is in March 2021. By then, M.H. will be about 2 months shy of 18 years old and
G.H. will be 15 years old. If Father remains in prison until September 2024, however,
M.H. will be 21 years old and G.H. will be 18.
The Children's Early Life and Time with Father
M.H. and G.H. were born in Philadelphia, Pennsylvania. M.H.—born June 3,
2003—and G.H.—born December 4, 2005—lived with their Mother, Father, and older
sister until 2012, when Father moved out. Mother, M.H., and G.H. continued to live in
Pennsylvania until September 2017 when they moved to Kansas to live with the
children's maternal grandmother (Grandmother).
But troubles arose in Kansas. In May 2018, Grandmother obtained a protection
from abuse order against Mother to protect Grandmother, Grandmother's partner (L.K.),
and the children. Mother moved out, but M.H. and G.H. continued to live with
Grandmother and remained in her care. In May 2019, Mother died.
2
CINC Proceedings
The underlying children in need of care (CINC) petition was filed before Mother
died and in response to Mother's May 2018 acts which led Grandmother to seek a
protection from abuse order against her. The State filed its petition after L.K. reported
that Mother was drunk most days and had broken a window on Grandmother's home
while drunk and out of control. Based on that incident, Mother was arrested and charged
with criminal damage to property and domestic battery, and Grandmother got the
protection from abuse order. The district court ordered the children to be placed in the
Department for Children and Families' (DCF) temporary care. DCF, through its
contracting provider Saint Francis Children Services (SFCS), placed the children with
Grandmother.
Mother pleaded no contest to the CINC petition. The district court adjudicated
M.H. and G.H. CINC and approved a permanency plan with the goal of reintegration.
The district court found that Mother tested positive for alcohol the day of the adjudication
hearing, but that Mother had moved to Riley, Kansas, was employed, and had housing.
By April 2019, Mother was discussing a guardianship agreement in which M.H.
and G.H. would stay with Grandmother and L.K., and Mother would keep the children
over weekends. Upon learning of these discussions, the court added a goal of
custodianship to the reintegration plan. But neither reintegration nor a custodianship was
achieved before Mother died on May 22, 2019. After Grandmother notified SFCS of
Mother's death, SFCS asked the district court to move forward with termination
proceedings against Father to ensure the children were able to achieve permanency in a
timely manner.
On May 23, the State issued a summons for Father. On May 24, the district court
appointed S. Scott Sage as Father's attorney. On May 28, Meagan Eiland, an SFCS case
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worker, sent Father a letter telling him that he had an attorney and that because the
children's Mother had died, the State was seeking to terminate his parental rights. She
also told Father the children were doing well and wished to stay with Grandmother.
Eiland gave Father her contact information and asked him to respond. Soon after, Sage
sent Father notice of the permanency hearing set for June 4.
Father did not appear at that permanency hearing. Still, the district court found that
due to Mother's passing, reintegration was no longer viable, so it changed the
permanency plan to adoption or permanent custodianship. Because Father was not listed
as father on the children's birth certificates, the district court ordered DCF and SFCS to
investigate his paternity, and it scheduled a review hearing for August 2019.
Eiland sent additional letters to Father, requesting that he contact her. She sent
Father similar letters monthly from June to December, but Father did not respond to any
of them.
Nor did Father respond to his attorney's efforts to contact him. Although he had
not heard from Father, Sage appeared on Father's behalf at the August 2019 review
hearing. He then wrote Father and told him that the district court was exploring whether
to move forward with termination proceedings or to consider a permanent custodianship.
Sage explained that a permanent custodianship would allow Father to keep his parental
rights and the children would remain in Grandmother's care. Sage enclosed two copies of
consent forms and encouraged Father to seriously consider voluntarily agreeing to the
custodianship.
In late August, Sage received an email from someone at Father's prison stating
Father had received the documents but adamantly refused to "sign over his rights to his
daughter[s]." But in September, Father seemingly changed course—he wrote Sage a letter
stating he would consider letting Grandmother have temporary custody of his daughters if
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he would regain custody of them upon his release from prison. Sage notified Father that
incarceration did not excuse Father's parental duties to support, bond with, and contact
the children. Sage also told Father that the district court would likely terminate his
parental rights and again encouraged Father to sign the consent forms allowing the
appointment of a permanent custodian. Father did not take Sage's advice.
Sage received another email stating Father had received the paperwork, but he
emphatically refused to sign the forms. Thus, the case proceeded to a hearing on the
State's motion for a finding of unfitness and termination of Father's parental rights.
Termination Proceedings
The State's motion to terminate Father's parental rights to M.H. and G.H. alleged
Father was unfit and unlikely to change in the foreseeable future based on these
allegations:
• Mother was deceased;
• Before her death, Mother agreed it would be in the children's best interests
to allow Grandmother to take Guardianship of the children;
• The children were in favor of staying with Grandmother;
• Father had not contacted the children in over a year;
• Father was incarcerated for up to seven years on one count of aggravated
indecent assault and one count of indecent assault; and
• Father refused to consent to a guardianship with Grandmother.
Father filed an affidavit objecting to termination. The district court recognized Father's
paternity, noted his objection to termination, and set the matter for a termination hearing
on March 5, 2020.
5
Termination Hearing
The district court allowed Father to participate in the termination hearing by
telephone, and Father did so. He testified three times and was able to speak with Sage
privately.
Father testified that it had been around five or six years since the children had
lived in his home and under his care. When Father was sent to prison in 2017, Mother
took the children to live in Kansas against his wishes. Father described the move as
"kidnapping" and said Mother had prohibited him from contacting the children.
Yet Father admitted that he did not seek legal intervention so he could contact the
children and admitted that he had not paid child support at any time. Father also admitted
that he had not contacted his daughters for at least two-and-one-half years and had not
seen or spoken to them in person, by phone, or over Skype during that time. Father sent
the children one letter in December 2019, yet he wrote to his mother about three times a
month.
Father testified that he did not have a job in prison, so he had no income. He
thought, however, that he could provide for the children financially if he got some
insurance money from Mother's death benefits and got disability benefits in Kansas. He
testified that he and the children could live with his mother at her Pennsylvania home,
which was large enough for all of them.
Father pleaded to keep his children, maintaining that he loved them. Father
claimed that he had been a stay-at-home father for years because Mother was busy
working. But Father acknowledged that he would not be able to parent his children until
he was released from prison.
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Grandmother's and the children's testimony painted a different picture of the
children's upbringing with Father at home. All three described Father as a violent man,
and M.H. testified that Father may have had a drug problem.
Grandmother testified that the children were doing very well in her care—a
sentiment Eiland agreed with. Grandmother said that the girls got along with L.K., that he
enjoyed having them in the home, that the children were a "joy to have," and that they
were welcome to stay in her home as long as they wanted. On cross-examination,
Grandmother candidly admitted that she did not like Father and had not had contact with
him since 2012, when he "tried to kill [her] daughter." In describing that event,
Grandmother testified that when she was staying at Mother's house, Father had violated a
restraining order by assaulting Mother—he pulled her by her hair and threw her over a
railing outside her house.
M.H. and G.H. also described an event in 2012 when Father abused their Mother.
M.H. testified that she was aware that Father had tried to kill her Mother when he pulled
her down a set of concrete stairs and pushed her over the railing into a rose bush. G.H.
testified that she had seen other abuse, including when Father would "beat" Mother and
blacken her eyes. G.H. also testified that once, when her oldest sister had tried to
intervene when Father was abusing Mother, Father had tried to break her sister's leg.
Grandmother testified that G.H.'s recent recall of the abuse was causing her emotional
difficulties. Both Grandmother and G.H. testified that G.H. was attending counseling,
which was helping.
Both children testified that they last saw Father in June 2016, when he stopped by
to drop off a birthday gift for M.H. From 2012 to 2016, they visited Father two to four
times a year, and maybe for a week during their 2015 Christmas break. Other than that,
Father sent the girls one letter on December 20, 2019. M.H. read it but G.H. did not. The
7
children had occasionally communicated with their paternal grandmother, but she had not
shared the children's contact information with Father.
Both children testified that they would not feel safe in Father's care and no longer
wanted to have contact with him. Both felt safe and happy in Grandmother's care and
wanted to keep living with her.
Father testified again after Grandmother and the children testified, to respond to
their allegations. With regard to the 2012 incident, Father testified that he had pleaded
guilty to domestic battery. But Father said that he had abused Mother only because her
diabetes and bipolar disorder caused her to get angry and verbally and physically abusive,
implying that he had hurt her in self-defense.
The State admitted a certified copy of Father's criminal docket, complaint, and
2018 sentencing order from the Pennsylvania court. In addition to other charges, Father
had been charged with attempted rape. The charges were later amended to include
aggravated indecent assault without consent, indecent assault without the consent of
others, indecent exposure, simple assault, and unlawful restraint/serious bodily injury.
The jury convicted Father of aggravated indecent assault without consent and indecent
assault without consent but acquitted him of simple assault. The State had dismissed the
remaining charges before trial.
At the termination hearing, the district court took judicial notice of the
Pennsylvania statutes under which Father was convicted. Those statutes define the
perpetrator of aggravated indecent assault as:
"[A] person who engages in penetration, however slight, of the genitals or anus of a
complainant with a part of the person's body for any purpose other than good faith
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medical, hygienic or law enforcement procedures commits aggravated indecent assault if
. . . the person does so without the complainant's consent." 18 Pa. Stat. § 3125(a)(1).
The statutes define the elements of indecent assault as:
"A person is guilty of indecent assault if the person has indecent contact with the
complainant, causes the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with seminal fluid, urine or
feces for the purpose of arousing sexual desire in the person or the complainant and . . .
the person does so without the complainant's consent." 18 Pa. Stat. § 3126(a)(1).
After being convicted of these crimes, Father was sentenced to a minimum of three years
and six months and a maximum of seven years in prison, plus two years supervised
probation.
In its closing argument, the State requested termination based on Father's
incarceration and general lack of support and contact with the children. The State also
argued that a presumption of unfitness applied because Father's crimes were comparable
to Kansas' rape statutes. See K.S.A. 2019 Supp. 38-2271(a)(12).
Defense counsel emphasized that Father was sentenced to a maximum of only
seven years—a much lower sentence than is typical for a rape conviction in Kansas.
Defense counsel asked the district court to allow Father to retain his parental rights and
suggested that Father was open to the idea of a permanent custodianship. Father
requested 20 to 30 days to "seriously consider" whether to consent to Grandmother's
appointment as the children's permanent custodian.
Eiland proposed that custodianship was the best means of addressing M.H. and
G.H.'s needs. A custodianship would provide the children with permanence sooner than
termination would, and the girls would not need an adoption subsidy to help financially
9
because they were receiving death benefits. Eiland also explained that Father could
consent to the custodianship or the district court could simply order it—either way, it was
in the children's best interests to remain in Grandmother's care.
The attorney representing Grandmother agreed that termination of Father's
parental rights was in the children's best interests. Grandmother's counsel also argued that
a presumption of unfitness existed because Father had failed to assume parental duties for
at least the last two-and-one-half years. See K.S.A. 2019 Supp. 38-2271(a)(13). The
guardian ad litem joined in those arguments and added that the children had been
subjected to abuse from a young age and that their testimony likely resulted in additional
trauma.
The district court took the matter under advisement. Roughly two weeks after the
hearing, the district court found by clear and convincing evidence that Father was "unfit
by reason of conduct and condition which render the parent unable to care properly for
the children and the conduct or condition is unlikely to change in the foreseeable future."
The court stated the many factors that it relied on in finding Father unfit.
Finally, the district court found that "taking into consideration the physical, mental
and emotional health and needs of the children, termination of parental rights is in the
best interests of each child. K.S.A. 38-2269(g)(1)." It explained:
"The Court makes this finding based upon numerous factors, including but not limited to
the fact that the children have no bond with Father and the children do not want to have
contact with Father; Father could be in prison up to the year 2025; he has had no contact
with the children, or even attempted to have contact with the children while in prison; and
he made no discernible effort to change his circumstances so that he could reintegrate
with his children, either before he went to prison or after."
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Thus, the district court denied Father's request for a continuance to consider a
custodianship and terminated Father's parental rights.
Father timely appeals.
Analysis
A parent has a constitutional protected liberty interest in the relationship with his
or her child. See Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49(2000) (stating the interest of parents in the care, custody, and control of their children is
a fundamental liberty interest); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008).
Accordingly, the State may terminate the legal bonds between parent and child only upon
"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).
If the district court makes such a finding, it must then consider whether
termination is in the best interests of the child. The court's primary concern here is the
physical, mental, and emotional health of the child. K.S.A. 2019 Supp. 38-2269(g)(1).
Whether the termination of parental rights is in a child's best interests is based on a
preponderance of the evidence and we review that finding for an abuse of discretion. See
In re R.S., 50 Kan. App. 2d 1105, 1115-16, 336 P.3d 903 (2014). A district court abuses
its discretion when no reasonable person would agree with its decision or when the
decision stems from a legal or factual error. In re M.S., 56 Kan. App. 2d 1247, 1255, 447
P.3d 994 (2019); see State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 60, 392 P.3d
68 (2017).
Father contends the district court erred in both its unfitness finding and its best
interests finding. We find, however, that clear and convincing evidence supports the
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unfitness decision, and that the district court did not abuse its discretion in finding
termination was in the children's best interests.
I. The District Court Did Not Err in Finding Father Unfit.
"When this court reviews a district court's termination of parental rights, we
consider whether, after review of all the evidence, viewed in the light most favorable to
the State, we are convinced that a rational factfinder could have found it highly probable,
i.e. by clear and convincing evidence, that the parent's right should be terminated." In re
K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011). In making this determination, an
appellate court does not weigh conflicting evidence, pass on the credibility of witnesses,
or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 705.
K.S.A. 2019 Supp. 38-2269(a) provides that, once the district court has
adjudicated a child as CINC, the district court may terminate a parent's right by a finding
of unfitness. 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. Any one of the factors "standing alone may, but does not necessarily,
establish grounds for termination of parental rights." K.S.A. 2019 Supp. 38-2269(f).
The district court relied on the following statutory factors to find Father unfit to
parent M.H. and G.H.:
• Father was imprisoned on a felony conviction. K.S.A. 2019 Supp. 38-
2269(b)(5).
• Appropriate agencies made reasonable efforts to rehabilitate the family but
failed when Father failed to respond to or participate in these efforts.
K.S.A. 2019 Supp 38-2269(b)(7).
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• Father lacked effort to adjust his circumstances, conduct, or condition to
meet the children's needs. K.S.A. 2019 Supp. 38-2269(b)(8).
• The children were not in Father's custody and Father failed to maintain
regular visitation, contact, or communication with the children. K.S.A.
2019 Supp. 38-2269(c)(2).
• The children were not in Father's custody and Father failed to pay a
reasonable portion of the substitute physical care and maintenance based on
ability to pay. K.S.A. 2019 Supp. 38-2269(c)(4).
The district court also relied on two statutory presumptions of unfitness in terminating
Father's parental rights:
• Father failed to assume the duties of a parent for two consecutive years next
preceding the filing of the petition. K.S.A. 2019 Supp. 38-2271(a)(13); see
K.S.A. 60-414(a).
• Father made no reasonable efforts to support or communicate with the
children within the last five to six years. See K.S.A. 2019 Supp. 38-
2271(a)(9); see also K.S.A. 60-414(a); K.S.A. 2019 Supp. 38-2271(b).
We address each in turn.
1. Felony conviction and incarceration
Father concedes that he is incarcerated and that his earliest release date is in March
2021. But Father implies that he was not convicted of a felony or that the State failed to
prove that fact. But the record squarely refutes Father's position.
Father admitted that he was incarcerated based on a conviction for aggravated
indecent assault without consent. The district court took judicial notice of the
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Pennsylvania statute defining that offense—18 Pa. Stat. § 3125(a)(1). According to the
statute, that offense is a second-degree felony. 18 Pa. Stat. § 3125(c)(1). The State
admitted several supporting documents, including a sentencing order showing that Father
was convicted and incarcerated for that offense. The record thus fully supports the district
court's finding. It is irrelevant that Father objected to the admission of these documents or
that Father gave an alternate account of the facts underlying his criminal case.
The record also supports the district court's consideration of Father's imprisonment
as a negative factor. Imprisonment may serve as a mitigating factor if it limits the parent's
ability to fulfill their customary parental duties. See In re S.D., 41 Kan. App. 2d 780,
789-90, 204 P.3d 1182 (2009). But imprisonment serves as a mitigating factor only when
a parent has made an effort to carry out parental duties and has thus made "reasonable
attempts to contact and maintain an ongoing relationship with his or her children." In re
Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145 (1987); see also In re S.D., 41 Kan.
App. 2d at 789-90 (applying analysis in termination of parental rights case). Father did
not do so here.
Imprisonment may constitute a significant negative factor where, as here, "it has
impeded the development of a relationship between the parent and the child . . . and
where the incarceration would cause further delay in the proceedings that isn't in the
child's best interests." In re M.H., 50 Kan. App. 2d 1162, 1172, 337 P.3d 711 (2014).
Father presented no evidence showing his imprisonment should be considered a
mitigating factor or that he made any effort to contact or maintain a relationship with
M.H. or G.H. since he was incarcerated. Instead, Father excuses his lack of effort by
casting blame. He suggests that his physical disabilities limited his ability to write to the
children, that Mother refused to allow Father to contact them, and that prison regulations
made it almost impossible to do so. Yet, Father admitted that he writes to his mother
three times a month. And he admitted that he never sought legal means to try to get
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visitation or some other contact with the children. Eiland testified that Father never asked
SFCS for contact with the children. And the State presented evidence that Father's
imprisonment has delayed the children's ability to obtain permanency with Grandmother.
The record shows clear and convincing evidence that Father's incarceration made
him unfit to care properly for the children—now and in the foreseeable future.
2. Failure of reasonable efforts made by appropriate public or private agencies to
rehabilitate family
K.S.A. 2019 Supp. 38-2269(b)(7) requires the relevant agencies to try to achieve,
within reason, rehabilitation of the family. But this factor does not "'require proof that the
appropriate agencies made a herculean effort to lead the parent through the
responsibilities of the reintegration plan.'" In re A.Z., No. 119,217, 2019 WL 638271, at
*7 (Kan. App. 2019) (unpublished opinion); In re B.T., No. 112,137, 2015 WL 1125289,
at *8 (Kan. App. 2015) (unpublished opinion).
Father maintains that SFCS exerted little effort to correspond with him and that
SFCS's meager efforts were exacerbated by difficulties with the Pennsylvania penal
system's communication procedures. So Father asserts that SFCS's efforts did not amount
to the "reasonable efforts" the statute requires.
The district court found that Eiland sent Father "at least eight letters . . . from
December 10, 2018 to January 9, 2020 in an attempt to make contact with Father and to
get information from him." Yet Father responded only once and "made no attempt to find
out what he needed to do to have contact with the children or how to fulfill any
requirements under the case plan he admits he received."
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The record confirms that Eiland made efforts to locate and contact Father before
and after the State moved to terminate his parental rights. Despite SFCS's failed attempts
to correspond with Father, SFCS assigned Father case plan tasks, thus providing Father a
means of establishing a relationship with the children. But Father chose not to respond or
to participate in SFCS's efforts, despite having received a copy of the case plan. Had
Father engaged in the services SFCS provided him, he may have been able to at least
communicate with the children. But Eiland's efforts to include Father failed because
Father chose not to do so. The State also showed that Father made minimal attempts to
respond to his attorney and ignored his attorney's advice to consider the benefits of
consenting to a permanent custodianship.
Under our standard of review, we do not reweigh the evidence but view the record
in the light most favorable to the State. See In re B.D.-Y., 286 Kan. at 705. Viewed in that
light, the record shows clear and convincing evidence that the agency made reasonable,
yet unsuccessful, efforts to initiate or foster a relationship between Father and the
children. See In re I.H., No. 122,554, 2020 WL 3885920, at *7-8 (Kan. App. 2020)
(unpublished opinion) (finding reasonable efforts factor applicable in case involving
incarcerated father failing to establish a relationship with children).
3. Lack of effort to adjust circumstances, conduct, or condition to meet the needs
of the children
Father argues that the district court's finding under K.S.A. 2019 Supp. 38-
2269(b)(8) of "lack of effort on the part of the parent to adjust the parent's circumstances,
conduct or conditions to meet the needs of the child" was wrong and ambiguous. He
assumes that the district court's reasoning was highly influenced by his incarceration and
argues that led to an unfair result.
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Throughout its statement of facts, the district court referenced examples of ways
Father failed to adjust his circumstances, conduct, or condition. The district court noted
that Father's incarceration prevented him from assuming a parental role. Father testified
that he did not have a job in prison and thus did not make an income. Yet when Father
was not incarcerated, he received around $800 per month in disability payments but had
not used any of that money to support his children. Father justified this by saying he "had
to worry about [him]self at that time."
The district court also referenced Father's abuse of Mother and his conviction of a
sex-based felony. Father presented no evidence to show he was taking steps to address
those behaviors.
Father does not point to specific actions he has taken to adjust his circumstances,
conduct, or condition. He simply argues that his incarceration substantially inhibits his
ability to freely communicate with SFCS. By narrowly focusing on his imprisonment,
Father ignores that the statute is disjunctive and thus allows for arguments about a change
in circumstances, conduct, or condition. See In re I.H., 2020 WL 3885920, at *8. So even
if Father's incarceration substantially limited his ability to change his circumstances or
condition, Father could still have shown his efforts to change his conduct. But the record
shows none. We find that the record shows by clear and convincing evidence that Father's
lack of effort made Father unfit to parent the children and that Father will not put forth
the necessary effort in the foreseeable future. See K.S.A. 2019 Supp. 38-2269(a), (b)(8).
4. Failure to maintain regular visitation, contact, or communication with the
children or with the custodian of the children
Because the children were not in Father's physical custody, the court was required
to consider additional factors set out in K.S.A. 2019 Supp. 38-2269(c). Father argues that
the district court's finding that he "fail[ed] to maintain regular visitation, contact or
17
communication with the children or with the custodian of the children" was erroneous
because he was not at fault for not seeing or speaking with the children over the last
several years. See K.S.A. 2019 Supp. 38-2269(c)(2). Instead, Father asserts that his
incarceration and Mother were to blame for his complete lack of contact with the
children. Father points to the one letter he sent the children as evidence that once Mother
died, he tried to contact them. Father also emphasizes that the children's current
custodian, Grandmother, despised him.
We recognize that Father's imprisonment likely added barriers to visitation,
contact, and communication with the children. But Father's imprisonment did not
preclude him from making some effort to communicate with the children. The record
shows that Father—through his mother—sent the children a letter in December 2019,
while incarcerated. Although Father testified that he was physically unable to write the
children letters due to injuries from a car accident, he managed to write to his mother
regularly. Father admitted that he did not write the children because they did not write
back: "I got no response. Really, it's hard to write letters when you get no response." And
the children testified that other than the 2019 letter, Father's last attempt to contact them
occurred in June 2016, when Father dropped off a birthday gift for M.H. At best, these
events are incidental contacts, which the district court has discretion to disregard. See
K.S.A. 2019 Supp. 38-2269(c).
Father admittedly did not try to contact Mother, Grandmother, or Eiland to request
an address, visitation, or any other form of communication. Nor did he take legal action
to try to maintain a relationship with the children after they moved to Kansas. And Father
saw the children 10 times at most between 2012 to 2016, before he was imprisoned.
Thus, clear and convincing evidence supports the district court's finding that
Father failed to maintain regular visitation, contact, or communication with the children
or their custodians. See In re K.F.W., No. 119,335, 2019 WL 257886, at *7 (Kan. App.)
18
(unpublished opinion), rev. denied 309 Kan. 1348 (2019) (upholding application of this
factor where Father testified he sent occasional letters, drawings, and spoke over the
phone with child). Father's history of failing to maintain contact while inside and outside
prison supports the district court's finding that Father's conduct is unlikely to change in
the foreseeable future.
5. Failure to pay a reasonable portion of the cost of substitute physical care and
maintenance based on ability to pay
Father asserts that the district court erred by relying on his failure to pay a
reasonable portion of the cost of substitute physical care and maintenance for the
children, see K.S.A. 2019 Supp. 38-2269(c)(4), because he was never required to pay
child support in Kansas before the CINC petition was filed. But this factor may be found
even when a parent has never been ordered to pay child support. Father also contends that
he lacked the ability to pay support because he is disabled and has not received disability
payments since being incarcerated. But even if we assume that Father was unable to
contribute financially while incarcerated, the record still supports this factor.
Father did not pay child support from 2012 to 2016. That was before his
incarceration and when Father was receiving disability payments of $800 per month. Yet
he did not pay any support because he "had to worry about [him]self at that time."
Father's testimony that he does not work in prison because of his disability supports the
district court's finding that Father's failure to pay support for the children is unlikely to
change in the foreseeable future. Father could be released from prison as early as March
2021 or as late as 2024. Although Father's plan after he gets out of prison is to collect
death benefits from his deceased ex-wife and disability benefits in Kansas, where he has
never lived or worked, Father provided no evidence that he is likely to receive either of
those sources of income.
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Accordingly, clear and convincing evidence supports the district court's finding
that Father's failure to make reasonable support payments rendered him unfit to properly
care for the children, now and in the foreseeable future.
Because we have found clear and convincing evidence that Father is unfit under
K.S.A. 2019 Supp. 38-2269(a)-(c), we need not examine whether the district court erred
in applying the presumptions of fitness in K.S.A. 2019 Supp. 38-2271(a).
II. Best Interests of the Children
We review the district court's finding that termination of parental rights is in the
best interests of the children for an abuse of discretion. See In re R.S., 50 Kan. App. 2d at
1115-16.
The district court heard testimony about Father's abuse of Mother and one of his
older children. It took judicial notice of Father's felony sex offenses for which he was still
incarcerated. The children testified that they feared Father, and M.H. testified that she
feared that she could become a victim of Father's abuse. Grandmother testified that the
children were doing very well in her care, and Eiland agreed. Both children testified that
they would not feel safe in Father's care and no longer wanted to have contact with him.
Both felt safe and happy in Grandmother's care and wanted to keep living with her.
Father emphasizes Eiland's testimony that the appointment of a permanent
custodian would likely result in a timelier means of providing the children with
permanency and was thus in the children's best interests. From this, Father asserts that a
permanent custodianship—not termination—aligned more appropriately with the
children's best interests. But Eiland also explained that whether or not Father consented
to the custodianship, it was in the children's best interests to remain in Grandmother's
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care. This and other evidence discussed above shows that the district court did not abuse
its discretion in finding termination was in the best interests of the children.
III. The District Court Did Not Err in Terminating Father's Parental Rights Instead of
Appointing a Permanent Custodian While Leaving Father's Rights Intact.
Father's second claim on appeal is that the district court erred in terminating his
parental rights instead of appointing a permanent custodian. Father does not argue that
the district court erred by denying his request for a continuance to reconsider whether to
consent to a voluntary appointment of a permanent custodianship.
Legal Standards
Father's argument raises issues of statutory interpretation and jurisdiction. We
have unlimited review over both. State v. Chavez, 310 Kan. 421, 425, 447 P.3d 364(2019); In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017). Our
statutes give the district court discretion to appoint a permanent custodian before or after
termination of parental rights. K.S.A. 2019 Supp. 38-2269(a) states:
"When the child has been adjudicated to be a child in need of care, the court may
terminate parental rights or appoint a permanent custodian when 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 and the conduct or condition is
unlikely to change in the foreseeable future." (Emphasis added.)
K.S.A. 2019 Supp. 38-2269(g)(1) and (2) provide additional guidance:
"If the court makes a finding of unfitness, the court shall consider whether
termination of parental rights as requested in the petition or motion is in the best interests
of the child. In making the determination, the court shall give primary consideration to
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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. . . .
"If the court terminates parental rights, the court may authorize adoption pursuant
to K.S.A. 2019 Supp. 38-2270, and amendments thereto, appointment of a permanent
custodian pursuant to K.S.A. 2019 Supp. 38-2272, and amendments thereto, or continued
permanency planning." (Emphases added.)
Father contends that when read in pari materia with the "entire statutory scheme"
regarding placement after a finding of unfitness, K.S.A. 2019 Supp. 38-2269(g)(2)
required that the district court review all of its statutory options—including the
appointment of a permanent custodian—before terminating Father's parental rights. But
we cannot address Father's claim because we do not have jurisdiction over this issue.
An appellate court has a duty to question jurisdiction on its own initiative. When
the record discloses a lack of jurisdiction, the appellate court must dismiss the
appeal. Wiechman v. Huddleston, 304 Kan. 80, 84-85, 370 P.3d 1194 (2016).
Recently, a panel of this court outlined the relevant law on this issue:
"The right to appeal is entirely statutory and is not contained in the United States
or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have
jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by
statutes. Wiechman, 304 Kan. at 86-87.
"The revised Kansas Code for Care of Children has a separate jurisdiction statute,
K.S.A. 2019 Supp. 38-2273(a), which provides: 'An appeal may be taken by any party or
interested party from any order of temporary custody, adjudication, disposition, finding
of unfitness or termination of parental rights.' According to our Supreme Court, '[t]he
statute creates five categories of appealable orders in a [child in need of care] case.' In re
T.S., 308 Kan. 306, 310, 419 P.3d 1159 (2018).
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"In In re T.S., the Supreme Court held that 'any . . . order . . . of termination of
parental rights' meant 'an order that ends parental rights, and nothing more.' 308 Kan. at
312. As a result, our Supreme Court dismissed a grandfather's cross-appeal of a district
court ruling that appointed a permanent custodian rather than granting a motion to
terminate parental rights. The Supreme Court reasoned that the plain language of the
statute permitted an appeal of the termination of parental rights but not an appeal of the
district court's refusal to terminate parental rights. 308 Kan. at 312. In this holding our
Supreme Court specifically declined 'to create a new category of [child in need of care]
appeals where the Legislature has declined to do so.' 308 Kan. at 312.
"The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). In analyzing a statute, we must first
ascertain legislative intent [through] the statutory language enacted, giving common
words their ordinary meanings. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d
647 (2019).
"A plain reading of K.S.A. 2019 Supp. 38-2273(a), in concert with In re T.S.,
yields the conclusion that the Legislature did not intend to provide Kansas appellate
courts with jurisdiction to review a district court's ruling creating a permanent
custodianship for children in need of care. Accordingly, this portion of Father's appeal is
dismissed for lack of jurisdiction." In re D.M., No. 122,561, 2020 WL 5490880, at *9-10
(Kan. App. 2020) (unpublished opinion).
The same applies here.
Because we have already affirmed the district court's findings that Father is unfit,
Father's unfitness is not likely to change in the foreseeable future, and termination of
Father's parental rights was in the best interests of the children, any analysis regarding the
district court's decision to appoint a permanent custodian would rest on matters made
after the court's termination decision. The record shows that the district court held a
review hearing after Father's parental rights were terminated. In that hearing, the district
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court announced its intent to move forward with a permanent custodianship with
Grandmother. But we do not have jurisdiction to consider that post-termination hearing
or the resulting order. See In re N.A.C., 299 Kan. 1100, 1121, 329 P.3d 458 (2014)
(certain post-termination orders are not subject to appellate review).
To the extent that Father's argument rests on the district court's termination order,
Father still fails to provide a basis for reversal. First, Father's argument rests on language
in K.S.A. 2019 Supp. 38-2271(b)—the statute prescribing circumstances of presumptive
unfitness. But we have upheld the district court's decision based on non-presumptive
factors in K.S.A. 2019 Supp. 38-2269(b)-(c). Second, Father's interpretation of K.S.A.
2019 Supp. 38-2269(g)(2) goes beyond the plain language of the statute, and we decline
Father's invitation to read into the statute language that goes beyond the plain text.
Third, Father assumes that the district court did not consider permanent
custodianship in deciding to terminate his parental rights, yet the record does not support
that assumption. The district court heard several arguments regarding permanent
custodianship at trial. The State and defense counsel put the district court on notice that
Father had been given time to consider consenting to a voluntary appointment of a
permanent custodian. So the record establishes that the district court likely considered all
the options available based on the evidence presented. If it found it in the children's best
interests to retain Father's parental rights, the district court was authorized to appoint a
permanent custodian without terminating Father's parental rights. See K.S.A. 2019 Supp.
38-2269(g)(3). But the district court determined that termination was in the children's
best interests. That decision was sound and clearly authorized under K.S.A. 2019 Supp.
38-2269(a). Any decision beyond that is outside the purview of the termination order and
thus outside our jurisdiction. We dismiss this portion of Father's appeal.
Affirmed in part and dismissed in part.
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