                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,860

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

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


                                    MEMORANDUM OPINION

        Appeal from Wyandotte District Court; JANE A. WILSON, judge. Opinion filed March 13, 2020.
Affirmed.


        Aline E. Pryor, of Kansas City, for appellant natural father.


        Daniel G. Obermeier, assistant district attorney, and Mark A. Dupree Sr., district attorney, for
appellee.


Before BUSER, P.J., STANDRIDGE and WARNER, JJ.

        PER CURIAM: Father, the natural parent of A.H., appeals from the district court's
decision to terminate his parental rights. He contends there was insufficient evidence to
support termination, the court's decision was too heavily influenced by the fact of his
incarceration, and that termination was not in the best interests of A.H. because the court
refused to consider less drastic alternatives. After carefully reviewing the parties'
arguments, we affirm.


                               FACTUAL AND PROCEDURAL HISTORY

        On May 8, 2018, the State filed a petition alleging A.H.—along with his three
half-siblings—was a child in need of care (CINC). The petition was based on facts and
information gathered by the Kansas Department for Children and Families. The


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Department received reports of concern about A.H.'s unborn half-sibling because of
Mother's drug use: Mother admitted to using and/or tested positive for methamphetamine,
PCP, MDMA, and amphetamines. The Department also received a report specifically
about A.H., alleging Mother and her boyfriend were physically and emotionally abusive.


       A.H. was eight years old when the Department filed its CINC petition. At that
time, Father was incarcerated and was not involved in A.H.'s life. In fact, Father had not
seen A.H. in more than six years. A.H. did not know Father was his biological father.


       On May 11, 2018, the district court granted the Department emergency temporary
custody of A.H. and his half-siblings. The court ordered the parents to obtain family- and
mental-health assessments and to follow the Department's recommendations, obtain and
maintain stable housing and income, contact the Case Services Officer (CSO) once a
month, and participate in parent education. Although Father was incarcerated, he was
sent written notification—a "petition packet"—with the journal entries. The packet also
set forth the specific tasks Father needed to accomplish in order to move toward
rehabilitation and reintegration with A.H. Father sent a return packet to the CSO less than
two weeks later. On May 31, 2018, the district court adjudicated A.H. a CINC and
confirmed its earlier orders regarding Father's reintegration requirements.


       Father was released from prison on July 6, 2018. To comply with the court's
orders, Father was required to find stable housing, stable income, participate in parenting
classes, sign releases, submit UAs, maintain contact with the CSO, and comply with his
postrelease conditions. But Father never contacted the CSO and did not complete any of
the mandated tasks. Although Father later testified that he never received the journal
entries the CSO was sending while he was out of prison, the CSO sent information about
the case to the address Father provided. And seven months after being released from
prison, Father was reincarcerated for violating the conditions of his release and violating
a no-contact order.


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       The State moved to terminate Mother's and Father's parental rights. Mother
stipulated to the termination of her rights, but Father contested the termination
proceedings. The State alleged Father had failed to adjust his circumstances to meet the
needs of A.H., failed to communicate with case workers, had completed none of the
court's orders, had not visited A.H. during the case, and had been reincarcerated.


       The district court held a hearing on the State's termination request, at which the
CSO and Father testified. At the close of the hearing, the court terminated Father's
parental rights, finding clear and convincing evidence established Father was unfit to
parent A.H. and was unlikely to change his circumstances in the foreseeable future. The
court also found termination was in the best interests of A.H. The court found Father had
not adjusted his circumstances to meet the needs of A.H.; had not maintained regular
visitation, contact, or communication with the child; and had not followed the court-
approved integration plan. See K.S.A. 2019 Supp. 38-2269(b)(7), (b)(8), (c)(2), and
(c)(3). The court also found Father had been convicted of a felony and was imprisoned.
See K.S.A. 2019 Supp. 38-2269(b)(4), (b)(5). Father appeals.


                                        DISCUSSION

       A parent has a constitutionally protected liberty interest in the relationship with his
or her child. See 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). Before
terminating a person's parental rights, a district court must find the State has proven the
parent is unfit; the conduct or condition which renders the parent unfit is unlikely to
change in the foreseeable future; and termination of parental rights is in the best interests
of the child. K.S.A. 2019 Supp. 38-2269(a), (g). Due to the fundamental nature of the
parental right, any findings relating to a parent's unfitness must be proved by clear and
convincing evidence. K.S.A. 2019 Supp. 38-2269(a); In re R.S., 50 Kan. App. 2d 1105,
Syl. ¶ 1, 336 P.3d 903 (2014).



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       When reviewing a finding of parental unfitness, this court must determine, after
considering all the evidence in a light favoring the State, whether a rational fact-finder
could have found that finding to be highly probable. In re B.D.-Y., 286 Kan. at 705. 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, the district court must determine if termination of
parental rights is "in the best interests of the child." K.S.A. 2019 Supp. 38-2269(g)(1).
This assessment gives "primary consideration to the physical, mental and emotional
health of the child." K.S.A. 2019 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 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 raises two arguments on appeal. First, Father asserts the district court erred
in finding he was an unfit parent. He claims the court relied too heavily on his
incarceration in assessing his fitness and questions the court's conclusions as to K.S.A.
2019 Supp. 38-2269(b)(7), (b)(8), and (c)(2) (which deal with his efforts to rehabilitate
the family and change his life to better meet A.H.'s needs), arguing the various state
agencies involved did not make sufficient efforts to help him reestablish a connection
with A.H. while he was in prison. Second, Father claims the district court erred in its
best-interests analysis because it did not consider less drastic alternatives to termination.
We address each of these claims in turn.




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   1. The State proved Father's unfitness by clear and convincing evidence.

       K.S.A. 2019 Supp. 38-2269 lists several nonexclusive factors a court considers—
singularly or in combination—to determine whether a parent is unfit. The district court
cited the following provisions in reaching its termination decision:


   • K.S.A. 2019 Supp. 38-2269(b)(4) (physical, mental, or emotional neglect of A.H.);

   • K.S.A. 2019 Supp. 38-2269(b)(5) (conviction of a felony and imprisonment);

   •   K.S.A. 2019 Supp. 38-2269(b)(7) (failure to rehabilitate the family);

   • K.S.A. 2019 Supp. 38-2269(b)(8) (lack of effort to adjust to meet A.H.'s needs);

   • K.S.A. 2019 Supp. 38-2269(c)(2) (failure to maintain visitation, communication,
       or contact with A.H.); and

   • K.S.A. 2019 Supp. 38-2269(c)(3) (failure to carry out a reasonable plan).


       In challenging the district court's finding of unfitness, Father focuses primarily on
the court's reliance on K.S.A. 2019 Supp. 38-2269(b)(5), which lists a "conviction of a
felony and imprisonment" as one of many nonexclusive factors to determine whether a
person is a fit parent. There is no question that Father was incarcerated throughout much
of this case. According to his own testimony, he was in and out of jail eight times since
A.H. was born. When the case was filed, Father was incarcerated for a drug distribution
conviction. He was then released midway through the case, but he violated the terms of
his release and was reincarcerated months later.


       Father does not challenge the district court's findings regarding his felony
conviction or imprisonment. Instead, he challenges the weight the court gave that factor,
arguing that his incarceration should have been considered a mitigating circumstance, as
it was more difficult for him to communicate with the CSO, the Department, and A.H.


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Father claims he did not receive all of the communications from the court or the CSO
while he was in prison, so he did not know what he needed to do to reintegrate with A.H.


       This argument is misplaced. Certainly, Kansas law recognizes that Father was
limited in how he could interact with A.H. and make other progress toward reintegration
while he was incarcerated. For this reason, when a parent is "incarcerated and unable to
fulfill the customary parental duties" of someone not in prison, "the court must determine
whether such parent has pursued the opportunities and options which may be available to
carry out such duties to the best of his or her ability." In re Adoption of F.A.R., 242 Kan.
231, 236, 747 P.2d 145 (1987). To this end, we routinely examine whether district courts
have considered an incarcerated parent's pursuit of opportunities and options available
while incarcerated. See In re S.D., 41 Kan. App. 2d 780, 790, 204 P.3d 1182 (2009); In re
D.T., 30 Kan. App. 2d 1172, 1174-75, 56 P.3d 840 (2002); In re K.W., No. 109,009, 2013
WL 5610259, at *3 (Kan. App. 2013) (unpublished opinion). Here, the district court
appropriately did so. And more importantly, Father was out of prison for 7 of the 15
months A.H.'s CINC petition was pending and took no steps during that time to comply
with the court's orders, contact A.H. or the CSO, or reintegrate with the child.


       At the termination hearing, Father gave several reasons for why—when he would
be released from prison this next time after being reincarcerated while the petition was
pending—he would be able to parent A.H. He testified he had a job lined up for after his
release, had completed GED and substance abuse classes, had undergone a religious
conversion, and had almost completed an online parenting program.


       But despite Father's professed willingness to work toward completing the court's
orders at the termination hearing, the record demonstrates he took no steps whatsoever
toward reintegration when he was released from prison while the CINC petition was
pending. He did not contact the CSO; the only time Father communicated with the CSO
during this case was when he was still incarcerated and returned his petition packet. He


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did not communicate with A.H. Father's failure to communicate with the CSO or A.H.,
his relapse into drug use, and his violation of the conditions of his release and
reincarceration belie his stated intentions and show that he failed to take advantage of any
of the opportunities and options to reintegrate with A.H. that were presented to him.


       In a similar vein, Father argues the district court erred in concluding his efforts to
rehabilitate the family and reform his life to reintegrate with A.H. were inadequate. See
K.S.A. 2019 Supp. 38-2269(b)(7), (b)(8), (c)(2). Father claims any fault for failure to
comply with the court's orders belonged to the CSO and the Department, as they did not
keep him informed as the case progressed. But the evidence in the record supports the
district court's conclusion that despite Father's incarceration, the CSO mailed him—and
he received—information about the case, including the reintegration tasks he had to
complete. And despite receiving this information, he made no effort to communicate or
cooperate with the CSO, the Department, or A.H., inside or outside of prison.


       Father was notified of the CINC case concerning A.H. and informed of the
required reintegration tasks. He replied to the initial petition packet while he was
incarcerated yet ceased all communication and involvement once he was released, opting
instead to relapse into drug use. The fact that Father was imprisoned for 8 of the 15
months the CINC case was pending does not change the fact that he failed to remain in
contact and made no steps toward working on the reintegration plan, either inside or
outside of prison. Nor does it obviate the fact that Father has no father-child connection
with A.H. and took no steps toward establishing such a relationship. Aside from Father's
self-serving claims that the CSO and the Department could have done more to
accommodate his situation, there is no evidence they failed to inform him of the court's
requirements or the potential training, counseling, and other rehabilitative and
reintegration services available.




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       The district court's findings that Father was incarcerated for a felony and failed to
make sufficient efforts to reintegrate with A.H. or reform his actions to allow him to take
on the parental role—whether in or out of prison—are supported by evidence in the
record. We do not reweigh the evidence but consider whether, based on the record as a
whole, it is highly probable that Father was unfit. Having reviewed the record, we find
sufficient evidence to support the court's conclusion, by clear and convincing evidence,
that Father was not fit to parent A.H. and that this circumstance was unlikely to change in
the foreseeable future.


   2. The district court's analysis of A.H.'s best interests is reasonable.

       Father also argues the district court erred in its analysis of A.H.'s best interests
when it ultimately decided to terminate Father's parental rights. He asserts that because
making parenting decisions for one's child is a fundamental right, the court should have
considered less drastic alternatives to termination, particularly since he testified that he
had reformed his life in numerous ways, would be released from prison in four months,
and had a job lined up after his release. Father also argues that his lack of contact with
A.H. to this point was due primarily to the efforts by A.H.'s birth mother to limit
communications with the child.


       A district court's analysis of the best interests of the child is governed by K.S.A.
2019 Supp. 38-2269(g)(1). Under that statute, after a court has made a finding that a
parent is unfit, "the court shall consider whether termination of parental rights . . . is in
the best interests of the child." K.S.A. 2019 Supp. 38-2269(g)(1). The statute further
instructs the court to "give primary consideration to the physical, mental and emotional
health of the child"—directing that "[i]f the physical, mental or emotional needs of the
child would best be served by termination of parental rights, the court shall so order."
(Emphasis added.) K.S.A. 2019 Supp. 38-2269(g)(1).




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         Thus, contrary to Father's arguments, K.S.A. 2019 Supp. 38-2269 did not require
the district court to impose less drastic measures than termination. Rather, K.S.A. 2019
Supp. 38-2269(g)(1) directs that termination shall be ordered when the district court
finds it is in the child's best interests.


         Our review of the record demonstrates the district court considered the factual
allegations and arguments presented and ultimately concluded it was in A.H.'s best
interests to terminate Father's parental rights. The record indicates that this conclusion
was reasonable in light of the record and within the court's sound discretion. There was
no evidence presented of any familial bond between Father and A.H. A.H. was 18 months
old when he last saw Father; at the time of trial, A.H. was 9 years old. Father had no
relationship with A.H. throughout the vast majority of A.H.'s life and had been
incarcerated much of that time, showing a tendency to relapse into drug use. While Father
was out of prison, he made no progress toward rehabilitating himself or establishing a
paternal relationship with A.H. Because Mother stipulated to the termination of her
parental rights, Father would have been required to become A.H.'s primary caregiver
upon his release, even though he has never been a primary caregiver before and had no
paternal relationship with the child.


         Because the district court is present to hear testimony and review firsthand the
evidence, that court is in "the best position to make findings on the best interests of the
child." In re K.P., 44 Kan. App. 2d 316, 318, 235 P.3d 1255 (2010). We therefore defer
to the district court's discretionary judgment and will not reverse a best-interests
determination "in the absence of an abuse of judicial discretion." 44 Kan. App. 2d at 318.
The district court did not abuse its discretion when it determined that termination was in
the best interests of A.H., based on the child's physical, mental, and emotional health and
needs.


         Affirmed.


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