                          NOT DESIGNATED FOR PUBLICATION

                                              No. 121,808

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        In the Interest of P.H.,
                                            A Minor Child.

                                   MEMORANDUM OPINION

       Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed June 5, 2020.
Affirmed.


       Michael E. Lazzo, of Wichita, for appellant natural father.


       Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.


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


       PER CURIAM: S.H. (Father) appeals the district court's finding that he is unfit to
parent his daughter, P.H. Father argues that there is insufficient evidence to support the
district court's findings and that the State failed to plead the facts properly for which the
district court terminated his parental rights.


       The record reflects that although Father completed court ordered tasks, Father
failed to implement secondary change. Additionally, a review of the record shows the
State alleged the facts and grounds necessary to find Father lacked effort in adjusting his
circumstances, conduct, or condition to meet the needs of P.H., and the district court's
finding is supported by the record. Because there is clear and convincing evidence to
support the district court's ruling, we affirm.




                                                     1
                          FACTUAL AND PROCEDURAL HISTORY


       A.H. (Mother), age 28, gave birth to P.H. in February 2018. Immediately
following the birth, police placed P.H. in protective custody because of Mother's
"history" and safety concerns of hospital staff. Although not explicitly explained, the
concerns about Mother's "history" involve Mother's involuntary manslaughter conviction
for the brutal death of her two-year-old daughter in 2012. She also had another child for
whom she relinquished her parental rights after leaving the child with caregivers for long
periods of time and physical abuse.


       The district court held a temporary custody hearing a few days later, and Father,
age 17 and living with his mother, appeared at the hearing. The district court ordered P.H.
to remain in the temporary custody of the Department of Children and Families (DCF).
The court also adopted the State's proposed orders. These orders included that Father
should: (1) abstain from the use of illegal drugs or alcohol; (2) obtain and maintain full-
time employment; (3) obtain and maintain appropriate housing; (4) complete a clinical
interview and assessment, anger management classes, parenting classes, and a substance
abuse evaluation; and (5) participate in hair follicle testing as scheduled and random
urinalysis testing.


       Four months later, Mother and Father submitted no-contest statements, and the
district court adjudicated P.H. as being a child in need of care. The district court ordered
P.H. to remain in the custody of DCF.


       Less than a month after the adjudication hearing, the State moved for a finding of
unfitness and termination of parental rights for both parents. The motion stated that
Father was arrested and charged with aggravated robbery about a week after P.H.'s birth.
Father was detained at the Juvenile Detention Facility until March 29, 2018, The motion
stated that SFCS did not have contact with Father at first, but Father eventually met with
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SFCS in late June 2018. Father said he was employed and completed a substance abuse
evaluation but had not completed a clinical assessment. The motion also stated Father
was charged with "pedestrian use sidewalk."


       The termination hearing occurred nine months after the State's motion for finding
of unfitness. After ruling on two motions in limine and determining the presumption of
unfitness applied to Mother, the State presented evidence through 15 witnesses as for
Mother's and Father's alleged unfitness. See K.S.A. 2019 Supp. 38-2271(a)(4) ("It is
presumed . . . that a parent is unfit . . . if the State establishes, by clear and convincing
evidence, that: . . . (4) the parent has been convicted of causing the death of another child
. . . ."). Neither Mother nor Father testified.


       After hearing the testimony and considering the exhibits, the district court held
that Mother and Father were unfit and terminated their parental rights. Specifically, the
district court found that Father was unfit due to: "[f]ailure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family [K.S.A. 2019 Supp. 38-
2269(b)(7)]" and "[l]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 [K.S.A. 2019 Supp.
38-2269(b)(8)]." The district court also found that termination of parental rights was in
the child's best interests.


       Father timely filed this appeal.


                                           ANALYSIS


       When reviewing a finding of parental unfitness, this court must determine, after
reviewing all of the evidence in a light most favorable to the State, whether a rational
fact-finder could have found the determination to be highly probable, i.e., by clear and
convincing evidence. See In re B.D.-Y., 286 Kan. 686, 705-06, 187 P.3d 594 (2008); In re
                                                  3
K.P., 44 Kan. App. 2d 316, 318, 235 P.3d 1255 (2010). In making this determination, the
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.


       As provided in K.S.A. 2019 Supp. 38-2269(a), the State must prove a 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."
The statute contains a nonexclusive list of nine factors that singularly or in combination
may constitute unfitness. K.S.A. 2019 Supp. 38-2269(b), (f). The statute lists four other
factors to be considered when, as here, the parent no longer has physical custody of a
child. K.S.A. 2019 Supp. 38-2269(c).


       On appeal, Father mainly argues that the State failed to properly plead the facts for
which the district found him unfit. Father argues that the issue in his case is whether the
parent must be given notice "that such conduct is being considered as a reason for
termination, and given the opportunity to change such conduct, before it is used as the
basis to terminate his rights." Father made a similar argument throughout the termination
hearing. Because this is the bulk of his argument, it will be addressed first.


Father was properly notified of the facts and circumstances for which the district court
terminated his parental rights under K.S.A. 2019 Supp. 38-2269(b)(8).


       As noted, the district court terminated Father's parental rights, in part, on the
grounds that he lacked effort "to adjust the parent's circumstances, conduct or conditions
to meet the needs of the child pursuant to [K.S.A. 2019 Supp. 38-2269(b)(8)]." To
support an unfitness finding under this factor, the State presented the testimony of many
police officers who testified at length about Father's contact with law enforcement and his
reputation within the Wichita Police Department. The State's theory appeared to be that
Father lacked effort to adjust his conduct to meet the needs of P.H. because of his
                                              4
continued negative law enforcement interactions. As to Father's negative interactions
with law enforcement, the evidence showed:


   • Before P.H.'s birth, police contacted Father after police received a report that
      persons involved in a car accident fled to a "nearby red shed" where Father was
      located. Police located three stolen vehicles and other stolen property at the red
      shed. Police saw Father leave the shed and contacted him. A trooper testified that
      Father was "very standoffish" when the trooper tried to speak with him and when
      the conversation "went downhill" his lieutenant stepped in, took custody of Father
      and interviewed him. Father was never charged with any crimes related to this
      incident.


   • Officers Jamie Thompson and Jeffrey Walters of the Wichita Police Department
      testified that they were tasked with locating Father and Father's brother after they
      were named suspects in an aggravated robbery a few weeks after P.H. was born.
      Officers located Father after seeing him sitting in the passenger seat of a vehicle
      that Mother was driving. Officers then detained Father and he was interviewed.
      Upon a search of Mother's home, where Father and his brother resided, police
      located a bag that contained a social security card for Father's brother, four
      syringes, and a "spoon that had methamphetamine paraphernalia residue on it."
      But police did not find any evidence that connected Father to the contents of the
      bag. Father's brother fled the house, but police eventually apprehended him.


   • Walters has responded to reports of "disturbances, suspicious characters, check
      shots, [and] reports of shots fired that have all been somehow linked to that
      residence" of Father. That said, Walters has never arrested Father on these other
      reports.




                                             5
• Four months after P.H.'s birth, Officers Brek Train and Brandon Faulkner of the
   Wichita Police Department responded to a riot call at Father's home. Train
   testified that a woman told police that men associated with an address near
   Father's had shot at Father's house. After investigating, police concluded that the
   gunfire was in response to fireworks "being shot off too late" in the street. Train
   also determined that there was return gunfire from the porch of Father's house
   because he found cartridge casings on the front porch that were a different caliber
   than the casings reportedly fired toward Father's home. Police found some casings
   at a location that "appeared as if they were [being fired] toward the house" while
   the others were found on the front porch of the house being fired at. Train and
   Faulkner determined that there were three children residing in the home, but no
   one suffered any gunshot wounds. Police never arrested or charged Father this
   incident.


• Six months after P.H.'s birth, Officer Blake McElwain of the Wichita Police
   Department testified that police received a disturbance call alleging an individual
   had pointed a gun at Father. Although Father was the victim, McElwain could not
   contact Father because Father fled and "jumped off a balcony."


• One year after P.H.'s birth, Officer Jax Rutledge of the Wichita Police Department
   testified that he responded to a traffic accident involving Father. After
   investigating, Rutledge determined that while Father was driving "at an excessive
   rate of speed," Father tried to "pass a vehicle by going into oncoming traffic, and
   that vehicle had then turned in front of him, and he smacked it, and both vehicles
   went basically off of the road at that point."


   Following the accident, Rutledge interviewed Father, and Father gave him
   inconsistent stories about how the accident occurred. First, he claimed his brakes
   were not working. Then he claimed he was driving 35 miles per hour. Eventually,
                                          6
     Father alleged he was going "40 to 50 miles an hour," but Rutledge determined
     Father was going 60 miles per hour. Father said he was "just trying to pass the car
     because he was in a hurry" but also said he was being chased by his brother. After
     investigating, Rutledge determined that there was no vehicle behind Father during
     the accident, and Rutledge cited Father for failing to have proof of insurance,
     driving on a suspended license, and careless driving.


  • Malachi Wulf testified that he called police after witnessing an incident about a
     month after the car accident. Wulf testified that he saw Father and two others
     driving down the street "at a high rate of speed." The car "had to hit the brakes"
     because there were two kids in the street. The kids did not get hit, "but they ran up
     in their yard screaming." A pickup was following the car, and the person inside the
     pickup "pulled up behind the individuals and was yelling at them something in
     Spanish." Wulf saw the people in the car "jump out" and the individual sitting in
     the back seat waved a gun. The car then "did a burnout and accelerated away."
     Wulf testified that the incident was "crazy" and he had "never seen nothing like
     that in life." Wulf knew Father was in the car because Father lived across the street
     from Wulf's sister. It is not clear whether Father was the person waving the gun.


     As to Father's reputation within the law enforcement community, the evidence
showed:


  • Dalena Mar, a social worker for DCF, testified that DCF requested police put P.H.
     in protective custody after she was born. Mar testified that DCF did not give the
     police any information about Mother's involuntary manslaughter conviction.
     Instead, when DCF mentioned that one parent was Father, "the officer
     automatically responded that he knew who that was and that they didn't have an
     issue putting the child in police protective custody based on their knowledge of
     [Father]." Mar testified to other concerns and made recommendations, but the
                                           7
   district court found it would "disregard her recommendations" because Mar had
   not been involved in the case for one year.


• Walters testified that he had interacted with Father several times and he has had
   "only negative interactions" with Father. Walters testified "[a]nytime that [he]
   would deal with [Father] under any circumstances for the rest of [his] career, [he]
   would always use caution more than [he] would an average citizen." Walters
   explained that Father "obviously [has] a lot of animosity toward law enforcement"
   because anytime police drove by Father's residence, "it would not be unusual for
   [Father] to be out in the front yard flipping us off, saying 'Fuck the police,' things
   of that nature." Walters testified that "veteran officers" who have worked in the
   area where Father and his brother resided, "had experiences with [Father] enough
   that they wanted to warn [him] to be careful if [he had] to deal with him."

• McElwain testified that he was familiar with Father before he responded to the
   disturbance call because of his reputation as a "troublemaker." McElwain testified
   that officers are advised to use caution when dealing with Father.

• Train testified that he was aware of Father's reputation, despite not working in the
   area where Father resides. Law enforcement had discussed Father at squad
   meetings, and Train learned that Father is "known to carry firearms" and Father
   had been "involved in robberies and chases with the police department." Train
   testified that he was told "[t]o be cautious" when dealing with Father.

• Faulkner testified that he was familiar with Father's address because it is
   "[p]robably one of the most well-known addresses to law enforcement in the
   Planeview area just from the calls that [they] get from that area." Faulkner added
   that Father is "probably the most well known" individual from this address.
   Faulkner also testified that Father has a reputation as "[t]roublemaker" within the
   law enforcement community.
                                          8
       Wulf also testified that he had another negative, and allegedly unlawful, encounter
with Father involving a gun around three weeks before the termination hearing. Wulf
testified that while at his sister's house, Father was outside "revving" the engine of his
car. Wulf asked Father if he would "'quiet that down'" because the noise was scaring his
two-year-old niece. Wulf testified that he was "told in an unpleasant way to mind [his]
own f'ing business." Wulf saw that Father had a gun in his waistband which he pulled out
"and had it down by his side" as Wulf walked away. Wulf testified that the incident "just
throws [him] off." He added, "Like why did he even pull a gun on a car incident, you
know? That's dumb."


       As shown, the State presented detailed evidence supporting their claim that Father
had a reputation as a troublemaker within the law enforcement community and that he
continued to have negative interactions with law enforcement after the birth of P.H.
Father does not appear to dispute this evidence. Rather, Father argues the State should
have given him notice that his negative law enforcement contact was being considered as
a ground for termination because without notice, he was not given a chance to make
changes to this behavior. The State argues that Father's argument "defies common sense"
and is "illogical." The State maintains that "one of the overriding focuses of a CINC case
is to make sure that the parents can provide a safe and stable home for their child" and
therefore a court should not have to tell Father to "refrain from negative law enforcement
contact and stop associating with people involved in criminal activity and illegal drugs."


       Father relies on K.S.A. 2019 Supp. 38-2266(b) to support his argument. This
subsection states, "Whenever a pleading is filed requesting termination of parental rights
or appointment of a permanent custodian, the pleading shall contain a statement of
specific facts which are relied upon to support the request, including dates, times and
locations to the extent are known." K.S.A. 2019 Supp. 38-2266(b). In the State's motion
for finding of unfitness and termination of parental rights, the State alleged the following
relevant facts:
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   • Father failed to provide a safe and stable living environment for P.H.
   • There were concerns for P.H.'s safety in Father's care.
   • Father had a history of criminal activity.
   • Father did not make the necessary changes in lifestyle to keep P.H. safe.
   • Father was arrested, and later charged, with aggravated burglary.
   • Father was detained at the Juvenile Detention Facility and released on March 29,
       2018.
   • Father was charged with pedestrian use sidewalk.


       The State then requested termination of Father's parental rights on these grounds
and alleged facts:


   • K.S.A. 2019 Supp. 38-2269(b)(3): "Father has a history of substance abuse. . .
       tested positive for THC and benzodiazepine. He admitted marijuana use. . ."
   • K.S.A. 2019 Supp. 38-2269(b)(5): "Father charged with aggravated robbery, a
       level three (3) person felony . . ."
   • K.S.A. 2019 Supp. 38-2269(b)(7): "The court, DCF, and SFCS have made
       extensive efforts to assist Father in stabilizing his situation to place him in a
       position to provide appropriate care to his child. Efforts include referral to
       complete court orders, case plan tasks, and drug screenings, as well as visitations
       with his child. . ."
   • K.S.A. 2019 Supp. 38-2269(b)(8): "Father has failed to modify his situation to
       place him in a position to provide appropriate care for his child. . . . Father has
       continued to engage in illegal activity and has been charged with aggravated
       robbery."


       Father also cites In re J.W., No. 112,668, 2015 WL 8590309 (Kan. App. 2015)
(unpublished opinion), to support his position that parents need to be "notified of

                                              10
conditions which require a change, before those conditions can be used against them to
terminate their parental rights." In In re J.W., a panel of this court found that the agency
placed in charge of the children's care did not provide "'reasonable efforts'" when they
"set up requirements for reintegration which are outside of the parameters of the written
permanency plan without amendment of the plan." 2015 WL 8590309, at *11. Father
relies on this decision to suggest that Father was "not told of the concern about negative
police involvement."


       Father's argument is not persuasive. Although there was never a court order or
case plan task that directly advised Father to avoid negative law enforcement contact, the
State alleged the specific facts relied on to support their argument that Father failed to
adjust his conduct to meet the needs of his child. The State specifically alleged Father
"continued to engage in illegal activity" as support for their request to terminate his
parental rights under K.S.A. 2019 Supp. 38-2269(b)(8). This is distinguishable from In re
J.W. The court there was considering whether the agency provided reasonable efforts to
rehabilitate the family under K.S.A. 2014 Supp. 38-2269(b)(7) when it failed to notify
Mother until two weeks before trial that reintegration would not be considered until her
boyfriend moved out. In other words, the court was examining whether the agency had
fulfilled its responsibilities. 2015WL 8590309 at *11. Here, by highlighting negative law
enforcement contacts the district court was focused on whether Father had done enough
to adjust his circumstances and conduct to meet the needs of P.H. under K.S.A. 2019
Supp. 38-2269(b)(8)—particularly her safety and security needs.


       Additionally, we agree with the State that Father's argument ignores the fact that
he consistently lied to his case managers about his contacts with law enforcement. The
SFCS caseworker testified that she would ask Father monthly whether he had any law
enforcement contact. Father said he did not until the car wreck in late February 2019. The
caseworker testified that although he told her about the wreck, she did not learn the truth
about the wreck until a week before the termination hearing. Father told the caseworker
                                             11
that he had hydroplaned and denied hitting another car. Similarly, neither parent notified
the caseworker when Father was placed in juvenile detention for aggravated robbery, nor
was she notified when he was released. She was also never told why Father was placed in
juvenile detention. And the caseworker was never told about the fireworks incident
leading to the exchange of gunfire.


       The evidence presented at trial supports the State's position that Father lacked
effort to adjust his circumstances, conduct, or conditions to meet the needs of P.H. Before
P.H. was born, Father had established a reputation as a troublemaker within the law
enforcement community. After P.H.'s birth, but before P.H. was adjudicated as needing
care, Father was arrested and charged with aggravated burglary. After P.H. was
adjudicated; gunfire was exchanged at Father's house; an individual pulled a gun on
Father, but he fled before police arrived; and Father was involved in a car accident after
he swerved into oncoming traffic while illegally trying to pass another car. Together with
these incidents reported to police, the State presented testimony that Father pulled a gun
on his neighbor's brother after being asked to quiet down.


       As argued by the State, Father failed to address the chaos in his life when he
continued to engage in behaviors that led to creating an unsafe environment for P.H.
When reviewed in a light most favorable to the State, a rational fact-finder could find the
district court's decision under K.S.A. 2019 Supp. 38-2269(b)(8) to be highly probable and
supported by clear and convincing evidence. See In re B.D.-Y., 286 Kan. at 705-06.


Reasonable efforts made by public or private agencies to rehabilitate the family have
failed because Father failed to implement secondary change.


       A district court may find a parent unfit if there is clear and convincing evidence
that the reasonable efforts made by public or private agencies to rehabilitate the family
have failed. K.S.A. 2019 Supp. 38-2269(b)(7). As to this termination ground, Father
                                            12
argues that the "uncontroverted evidence disproved these claims" because Father
completed all court orders. The State argues that despite Father completing the court
orders, "he was not forthcoming with case workers about his repeated law enforcement
contacts or his continued association with individuals associated with criminal activity."


       As noted by Father, the district court found that "for all intents and purposes, the
parents have complied with the orders of the Court as directed by the caseworker." The
State concedes as much. That said, the State argues that Father failed to implement
secondary change after completing these orders. This assertion is supported by the record.
Along with Father's negative law enforcement contacts, witnesses testified to the
following:


   • Kristen Peterman, an employee at DCF, defined secondary change as "an
       internalization" of what a parent has learned in classes or services and "applying
       what [the parent has] learned to your day-to-day life." Based on the actions of
       Father, Peterman testified that she was concerned that Father's behavior doesn't
       "necessarily demonstrate that [he has] an understanding of what [he] learned in
       classes or therapy." For example, Father is "still associating with individuals who
       have criminal activity" and having that association puts P.H. at a safety risk.
       Peterman expressed similar concerns with Father's behavior, stating, "When there
       are weapons that aren't stored properly, that are shot over a dispute with a
       neighbor, reckless driving, . . . having law enforcement pursue your car and the
       parent getting arrested, all of that creates safety risks for the child."


   • Alanea Hanna, a social worker for SFCS, testified that she is concerned with
       Fathers "risky or at-risk behavior" and his failure to implement secondary change.
       Hanna testified that she believed Father's law enforcement contact "has been to the
       point where if [P.H.] was present, she would be harmed. . . . [I]f [P.H.] would have
       been in the home on any of those occasion that we have heard, she could be placed
                                               13
       in harm." Hanna testified that although visitations went well with Father,
       "[v]isitation is different than having a child in your care at all times." Hanna also
       testified that SFCS had trouble addressing some concerns with Father because
       Father was not forthcoming with his behavior.


   • SFCS caseworker Lavana Faine testified that Father completed all court orders
       and recommended reintegration. Faine was the only witness to make this
       recommendation but she recommended reintegration contingent upon SFCS
       completing a six-month reintegration plan. Faine testified that she was unaware of
       Father's criminal behavior, despite asking him monthly if he had contact with law
       enforcement. Faine initially testified that Father implemented secondary change.
       Yet on cross examination, Faine testified that after hearing all the evidence
       presented at trial, she has safety concerns for P.H. and conceded that Father has
       failed to make secondary changes.


       When reviewed in a light most favorable to the State, a rational fact-finder could
find the district court's decision based on K.S.A. 2019 Supp. 38-2269(b)(7) to be highly
probable and supported by clear and convincing evidence. See In re B.D.-Y., 286 Kan. at
705-06. Although Father completed the court ordered tasks, Father failed to implement
the secondary change necessary to create a safe environment for P.H. in order to
rehabilitate the family.


       For all the reasons stated above, we find that clear and convincing evidence
supported the district court's finding of parental unfitness as to Father.


       Affirmed.




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