In re A.L.E.A.

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NOT DESIGNATED FOR PUBLICATION

No. 116,276

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of A.L.E.A.,
A Minor Child.


MEMORANDUM OPINION

Appeal from Butler District Court; MICHAEL E. WARD, judge. Opinion filed June 16, 2017.
Affirmed.

Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.

Cheryl M. Pierce, assistant county attorney, for appellee State of Kansas.

Before GARDNER, P.J., PIERRON, and ATCHESON, JJ.

Per Curiam: A.A. appeals the decision of the Butler County District Court to
terminate his rights as the father of A.L.E.A., his 10-year-old daughter, because of his
extended incarceration and her pronounced emotional problems. We find sufficient
evidence supports the district court's determination and reject A.A.'s additional challenge
suggesting issue preclusion somehow barred the ruling. We, therefore, affirm the
termination of A.A.'s parental rights.

FACTUAL AND PROCEDURAL HISTORY

A.A. was taken into federal custody on drug charges before A.L.E.A. was born.
He was convicted on those charges and at the time of the final termination hearing in this
case remained in prison serving his sentence. Raised by her mother, A.L.E.A. was
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subjected to physical and sexual abuse while in her custody. The State filed a petition in
October 2012 to have A.L.E.A. declared a child in need of care. The district court
adjudged A.L.E.A. to be in need of care and placed her in temporary state custody. A.A.
has been represented by court-appointed lawyers throughout this case and has
participated in the hearings by telephone from the various federal prisons where he has
been held. Mother has relinquished her parental rights and is not a party to this appeal.

The record evidence in the case shows A.L.E.A. has been diagnosed as having
posttraumatic stress disorder and disruptive mood dysregulation disorder. The latter is a
comparatively new psychological diagnosis applied when a child displays severe, chronic
irritability and frequently reacts with explosive anger to situations that typically should
prompt only mild or no emotional responses. Those episodes may include physically
aggressive behavior, as they sometimes have with A.L.E.A. In short, A.L.E.A. manifests
a fairly pronounced constellation of emotional issues making her difficult to manage in a
family setting.

In February 2014, the State filed its first motion to terminate parental rights,
alleging A.A. was unfit because of his extended incarceration and because he had been
found unfit in another court proceeding involving a different child. After an evidentiary
hearing, the district court ruled A.A. to be unfit and determined the unfitness was
unlikely to change in the foreseeable future. But the district court found that terminating
A.A.'s parental rights would not be in A.L.E.A.'s best interests and, therefore, denied the
State's motion. The district court wanted the assigned case manager and the social service
agency overseeing A.L.E.A.'s care to explore a permanent custodianship for A.L.E.A.
with her paternal aunt.

About 21 months later, the State filed a second motion to terminate A.A.'s parental
rights, alleging the same bases for unfitness. A.A. argued that collateral estoppel
precluded the successive motion, since the district court had already declined to terminate
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his rights. The State argued the factual circumstances had changed, so the new motion
was not barred as repetitive. The district court rejected A.A.'s argument and held a new
evidentiary hearing in January 2016.

The evidence showed that A.A. remained in federal custody and was not likely to
be released from prison for at least a year. During the early part of his imprisonment,
A.A. had some limited visits with A.L.E.A., when she came to the facility where he was
being held and would see him several days in a row. Later, A.A. had regular telephone
conversations with A.L.E.A. But those calls were stopped at the request of a foster
placement who said A.L.E.A. tended to act out after talking with her father. The district
court questioned the basis for and the wisdom of the decision cutting off communication
between A.A. and A.L.E.A.

A.L.E.A. has been unsuccessfully placed with several foster families. Those
placements failed largely because of A.L.E.A.'s emotional issues. A.L.E.A. also lived
briefly with her aunt's family, and that didn't work out for essentially the same reason.
For a time, the social service agency had A.L.E.A. in a series of what are typically
considered short term, emergency residential placements. By the time of the second
termination hearing, A.L.E.A. had been in an inpatient psychiatric placement for about 4
months but was scheduled to be moved to a less restrictive setting sometimes used with
children unsuited for traditional foster placement. That was A.L.E.A.'s second inpatient
stay for treatment of her psychological problems.

The therapist working with A.L.E.A. testified that she would ask about her father,
wondered why she couldn't talk to him, and wanted to resume telephone calls with him.
Other witnesses indicated that A.L.E.A. did not speak of A.A. The therapist said that
finding a stable permanent placement for A.L.E.A. was essential to her mental health and
that she would not improve and might well regress outside such an environment. He also
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said anyone adopting or otherwise taking A.L.E.A. on a permanent basis would need to
have training in dealing with children who had experienced significant trauma.

The case manager assigned to A.L.E.A. said no potential adoptive parents had
been identified and agreed there was no guarantee A.L.E.A. would be adopted. The case
manager testified that if A.A.'s parental rights were terminated, the social service agency
could work through various "adoption recruiters" who would be able to search nationally
for families willing and able to adopt children with special needs, thereby increasing the
possibility for an adoptive placement.

The district court again found A.A. to be unfit and that the circumstances would
not be likely to change in the foreseeable future. The district court relied on K.S.A. 2016
Supp. 38-2269(b)(5), making a parent's conviction of and incarceration for a felony
grounds for unfitness, and on K.S.A. 2016 Supp. 38-2271(a)(1), permitting a district
court to presume unfitness in a current proceeding based on a judicial finding of unfitness
in an earlier proceeding. Given A.L.E.A.'s circumstances and the failure of the permanent
guardianship, the district court found termination of A.A.'s parental rights to be in the
child's best interests. The district court entered a termination order. A.A. has appealed.

LEGAL ANALYSIS

On appeal, A.A. challenges the sufficiency of the evidence to support the district
court's finding of unfitness and its conclusion that termination was in A.L.E.A.'s best
interests. A.A. also contends that collateral estoppel barred the State from filing a second
motion to terminate his parental rights in light of the ruling on the first one. After setting
forth key legal principles governing proceedings to terminate parental rights, we take up
those points in order.


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Governing Legal Principles

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, 759-60, 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). Given the
inherent importance and unique character of that relationship, the right has been deemed
fundamental. Accordingly, the State may extinguish the legal bonds between parent and
child only upon clear and convincing proof of parental unfitness. K.S.A. 2016 Supp. 38-
2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).

As provided in K.S.A. 2016 Supp. 38-2269(a), the State must prove the parent to
be unfit "by reason of conduct or condition" making him or her "unable to care properly
for a child" and that the circumstances are "unlikely to change in the foreseeable future."
The statute contains a nonexclusive list of nine conditions that singularly or in
combination would amount to unfitness. K.S.A. 2016 Supp. 38-2269(b). And the statute
lists four other factors to be considered if a parent no longer has physical custody of a
child. K.S.A. 2016 Supp. 38-2269(c). In addition, the State may rely on one or more of
13 statutory presumptions of unfitness outlined in K.S.A. 2016 Supp. 38-2271.

In reviewing a district court's determination of unfitness, an appellate court must
be convinced, based on the full evidentiary record considered in a light favoring the State
as the prevailing party, that a rational factfinder could have found that decision "highly
probable, i.e., [supported] by clear and convincing evidence." In re B.D.-Y., 286 Kan. at
705. The appellate court cannot weigh conflicting evidence, pass on the credibility of
witnesses, or otherwise independently decide disputed questions of fact. 286 Kan. at 705.
In short, any conflicts in evidence must be resolved to the State's benefit and against A.A.

Having found unfitness, the district court must then decide whether termination of
parental rights is "in the best interests of the child." K.S.A. 2016 Supp. 38-2269(g). As
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directed by the language of K.S.A. 2016 Supp. 28-2269(g), the district court must accord
"primary consideration to the physical, mental[,] and emotional health of the child." The
district court makes that determination based on a preponderance of the evidence. In re
R.S., 50 Kan. App. 2d at 1116. The best-interests issue is essentially entrusted to the
district court acting within its sound judicial discretion. 50 Kan. App. 2d at 1115-16. An
appellate court reviews those sorts of decisions for abuse of discretion. A district court
exceeds that broad latitude if it rules in a way no reasonable judicial officer would under
the circumstances, if it ignores controlling facts or relies on unproven factual
representations, or if it acts outside the legal framework appropriate to the issue. See
Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d
1106, cert. denied 134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d
801 (2011), cert. denied 565 U.S. 1221 (2012).

Unfitness—Felony Conviction

After a child is found to be in need of care, a parent must satisfy a reasonable plan
for reintegration of the family. A reasonable plan includes a temporal component or
deadline for completion to afford the child some permanent resolution of his or her
situation. A parent's incarceration does not excuse his or her compliance with an
otherwise reasonable reintegration plan. This panel recently outlined considerations in the
termination of rights based on a parent's felony conviction and resulting imprisonment in
In re K.O., No. 116,704, 2017 WL 2403304, (Kan. App. 2017) (unpublished opinion).
We borrow here accordingly:

"This court has consistently recognized that incarceration typically does not delay or
excuse completion of a reasonable reintegration plan. See In re M.H., 50 Kan. App. 2d
1162, 1172, 337 P.3d 711 (2014); In re S.D., 41 Kan. App. 2d 780, 790, 204 P.3d 1182
(2009); In re M.D.S., 16 Kan. App. 2d 505, 509-10, 825 P.2d 1155 (1992). Nor does it
necessarily stave off termination of parental rights. To the contrary, imprisonment for a
felony is a specific statutory ground that may warrant a finding of unfitness. See K.S.A.
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2016 Supp. 38-2269(b)(5). This court, however, has pointed out that, depending on the
circumstances, imprisonment might not mandate termination. In re M.H., 50 Kan. App.
2d at 1172; In re M.D.S., 16 Kan. App. 2d at 510. For example, if the parent already had
a well-established relationship with an older child, a district court properly could find that
a comparatively short period of incarceration could mitigate noncompliance with some
aspects of a reintegration plan or otherwise weigh against termination. See In re M.H., 50
Kan. App. 2d at 1172. In that circumstance, the condition of unfitness—the parent's
incarceration—reasonably could be viewed as likely to change in the foreseeable future."
In re K.O., 2017 WL 2403304, at *4.

In this case, the evidence showed A.A. had limited, though regular, contact with
A.L.E.A. but never parented her or had a close familial relationship with her in any
conventional sense. Although they communicated—mostly by telephone—A.A. hadn't
forged a traditional parent-child relationship with A.L.E.A. because he had been in prison
her entire life as of the second termination hearing. As the district court recognized, A.A.
appears to sincerely care about A.L.E.A. and has tried to be as involved in her life as his
incarceration permits. But that doesn't alter or mitigate the resulting circumstances and
the absence of a substantial parent-child relationship between them.

To state the obvious, at the time of the second termination hearing, A.A. had been
unable to provide a stable home environment for A.L.E.A. at any point in her life because
of his continuing incarceration. Likewise, he had been unable to otherwise consistently
support her financially or emotionally for the same reason. Accordingly, the evidence
necessarily established by the required standard that A.A. was unfit, as provided in
K.S.A. 2016 Supp. 38-2269(b)(5). The facts here undoubtedly illustrate a fairly typical
situation the legislature meant to be deemed parental unfitness and, thus, illustrate why a
felony conviction coupled with extended imprisonment represents a stand-alone ground
for finding a parent unfit.

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The district court similarly and correctly found the condition of unfitness was
unlikely to change in the foreseeable future. In January 2016, A.A. likely would remain
in federal prison for another year followed by release to a halfway house for up to 6
months. During that time, he would be unable to provide a home environment for
A.L.E.A. In that transition period, A.A. would be expected to secure a place to live and a
job. Even assuming he were able to do so, the hearing evidence strongly indicated he
would be unable to successfully parent A.L.E.A. at that point. Because of her substantial
emotional problems, A.L.E.A. has been unsuited for usual foster placements and was
unsuccessful in the custodianship with her aunt. There was little reason to conclude A.A.
would fare any better without additional training. And even then, he had no viable plan in
place for securing suitable care for A.L.E.A. during his work hours. A single parent
attempting to take on responsibility for a child such as A.L.E.A. would face a daunting
set of tasks that simply could not be completed easily or quickly.

As the Revised Kansas Code for Care of Children, K.S.A. 2016 Supp. 38-2201 et
seq., recognizes, children experience the passage of time in a way that makes a month or
a year seem considerably longer than it would for an adult, and that different perception
typically points toward to a prompt, permanent disposition. K.S.A. 2016 Supp. 38-
2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re G.A.Y., No.
109,605, 2013 WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion) ("'child time'"
differs from "'adult time'" in care proceedings "in the sense that a year . . . reflects a much
longer portion of a minor's life than an adult's"). Here, that factor takes on added
significance. According to the hearing testimony, A.L.E.A. wasn't just in a holding
pattern awaiting permanency—delay was having a deleterious impact on her already
fragile emotional state.

The district court, therefore, correctly found that A.A.'s unfitness was unlikely to
change in the foreseeable future, especially taking account of A.L.E.A.'s particular needs
and the statutory requirement to consider "child-time" in measuring foreseeability. We
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find no error in the district court's determinations with respect to A.A.'s conviction and
incarceration.

Unfitness—Statutory Presumption

A.A. challenges the district court's reliance on the statutory presumption of
unfitness in K.S.A. 2016 Supp. 38-2271(a)(1), based on a finding of unfitness in an
earlier proceeding. A.A. submits the evidence didn't support the presumption here and the
district court failed to analyze the evidentiary weight to be given the presumption as
required in K.S.A. 60-414. We again draw on In re K.O., where we discussed the
presumptions of unfitness:

"The presumptions permit a finding of unfitness based on the State's proof by clear and
convincing evidence of specific predicate facts. See K.S.A. 2016 Supp. 38-2271(a). The
parent, however, may rebut the presumption of unfitness by a preponderance of the
evidence. K.S.A. 2016 Supp. 38-2271(b). The district court must consider K.S.A. 60-414,
governing the effect of presumptions, in applying the 13 circumstances in K.S.A. 2016
Supp. 38-2271(a) that permit a presumptive determination of unfitness. See K.S.A. 2016
Supp. 38-2271(a) (proof of predicate fact establishes 'in the manner provided in K.S.A.
60-414' a presumption of unfitness). As provided in K.S.A. 60-414, if the predicate fact
has no actual probative value in establishing the presumed fact and evidence has been
introduced conflicting with the presumed fact, the presumption may no longer be given
any evidentiary weight. Conversely, if the predicate fact is probative of the presumed
fact, then the presumption remains in effect despite evidence disputing the presumed
fact." In the Interest of K.O., 2017 WL 2403304, at *3.

Here, the statutory presumption permits an inference of unfitness in the present
case based on a finding of unfitness in an earlier case. We suppose that a person who has
acted as an unfit parent in one situation with one child would be prone to act that way
later in a similar situation with another child. In other words, we accept for purposes of
argument that unfitness on one occasion would be circumstantial evidence having some
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tendency to prove unfitness on another occasion. Therefore, had the district court applied
K.S.A. 60-414 here, the presumption of unfitness in K.S.A. 2016 Supp. 38-2271(a)(1)
would have remained intact. As a result, the district court's error in failing to filter the
presumption of unfitness through K.S.A. 60-414 was harmless.

But the presumption of unfitness remained rebuttable. The parties stipulated to the
admission of a journal entry in a Sedgwick County District Court case in 2001
terminating A.A.'s parental rights to another child because he had been found unfit. The
assistant county attorney's characterization of the journal entry and her brief quote from it
to that effect appear in the transcript of the first termination hearing. The journal entry
itself is not part of the record on appeal, so we don't have any details set forth there.

A.A. testified, without contradiction, about the circumstances of the earlier
adjudication of unfitness and did not dispute he had been found unfit. According to A.A.,
he was one of 12 putative fathers of the child in that case and never took a DNA test to
determine his paternity. He did not recall having been represented by a lawyer in that
case or participating in any hearings. There is no other substantive discussion of the
Sedgwick County case.

On the whole, we find the record unilluminating about the Sedgwick County case
beyond showing that the district court declared A.A. to be unfit and terminated his rights.
From what we have in front of us, A.A.'s explanations would be consistent with a default
finding against him. We assume without deciding that the evidence here amounts to a
rebuttal of the presumption—a default wouldn't carry the same weight or evidentiary
force as a factual finding on contested evidence. Given our assumption, we conclude the
record fails to support a finding of unfitness based on the presumption in K.S.A. 2016
Supp. 38-2271(a)(1).

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Ultimately, however, our conclusion does A.A. no practical good. As we have
pointed out, a single ground supporting termination of parental rights is legally sufficient.
And we have already found the district court properly relied on A.A.'s conviction and
incarceration to terminate his parental rights. Whatever shortcomings there may be with
the presumption of unfitness based on the Sedgwick County case, that ground merely
provided an alternative or supplemental reason to terminate A.A.'s rights in this case. So
our assessment does not require a reversal of the district court's termination order.

Best Interests of the Child

Having again found A.A. to be unfit following the second termination hearing, the
district court revisited what would be in A.L.E.A.'s best interests. The district court
appears to have correctly understood both the law and the record evidence on this point.
The undisputed evidence showed A.L.E.A.'s psychological fabric continued to unravel
because of the lack of permanency in her life—particularly the lack of a stable, nurturing
home life with people both attuned to and trained in addressing her sometimes acute
emotional needs. The undisputed evidence likewise showed that her opportunities for
adoption into such a family increased markedly with the termination of A.A.'s parental
rights.

As the district court acknowledged, A.L.E.A.'s circumstances were, in a word,
tragic. And A.A. did nothing directly to bring them about, but, at the same time, he has
been in no position to change them for the good. The components that go into termination
of parental rights—the parent's unfitness and the child's best interests—ultimately are not
fault-based determinations. That is, termination may be appropriate and necessary even if
the parents truly love their children and have not acted deliberately or even negligently in
bringing about the circumstances necessitating judicial intervention. See In re A.A., 38
Kan. App. 2d 1100, 1105, 176 P.3d 237 (2008). This appears to be one of those cases.

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In many cases, of course, parents have acted deliberately or with reckless
indifference in ways that harm their children physically or emotionally, thereby legally
establishing unfitness. See K.S.A. 2016 Supp. 38-2269(b)(2), (4). But a parent's infliction
of harm, either intentionally or through gross negligence, is not legally necessary to prove
either unfitness or that the best interests of the child would be served through termination.

Our review on this issue is for abuse of discretion. Absent legal mistakes or factual
misunderstandings, of which we see none here, we review the best-interests
determination by asking whether no reasonable judicial officer would take the same
position as the district court. We readily answer that others would do so. We, therefore,
find no abuse of discretion in the conclusion A.L.E.A.'s best interests were served by
terminating A.A.'s parental rights.

Collateral Estoppel

A.A. argues the district court's denial of the State's first motion to terminate his
parental rights interposed a collateral estoppel bar to its second motion, effectively
precluding consideration of that motion. A.A.'s argument fails. Collateral estoppel
operates as a preclusion doctrine across cases, preventing litigation of issues in one case
if they have been decided in an earlier case involving the same parties or parties in legal
privity. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751
P.2d 122 (1988); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 265-66, 261
P.3d 943 (2011); National Inspection & Repair, Inc. v. Farah, No. 102,281, 2016 WL
3570504, at *8 (Kan. App. 2016) (unpublished opinion) (Collateral estoppel "prevents
relitigation in a different case of issues conclusively determined in a prior action."). The
doctrine, however, does not apply to judicial decisions within a single case. See City of
Neodesha v. BP Corporation, 50 Kan. App. 2d 731, 737, 334 P.3d 830 (2014), rev.
denied 302 Kan. 1008 (2015). Here, we are dealing with successive district court rulings
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within one case; so collateral estoppel is inapplicable, and A.A.'s argument fails for that
reason.

The related doctrine of law of the case, however, serves a similar function within a
single legal action. 50 Kan. App. 2d at 737. Law of the case prevents a party from again
litigating an issue in the district court after the issue has been raised and resolved in an
appeal in that case. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193,
1212, 308 P.3d 1238 (2013) ("The law of the case prevents relitigation of the same issues
within successive stages of the same suit."); State v. Collier, 263 Kan. 629, Syl. ¶ 3, 952
P.2d 1326 (1998) ("[O]nce an issue is decided by the [appellate] court, it should not be
relitigated or reconsidered unless it is clearly erroneous or would cause manifest
injustice."). A corollary recognizes that a party who fails to appeal an otherwise
appealable order may not attack that ruling during later stages of the case. State v.
Finical, 254 Kan. 529, 532, 867 P.2d 322 (1994) (recognizing longstanding Kansas
precedent that "when an appealable order is not appealed it becomes the law of the
case").

Even if we were to treat A.A.'s argument as one invoking law of the case, it would
still fail. Recall that the district court found A.A. to be unfit in the first termination
hearing but denied the State's motion based on A.L.E.A.'s best interests. The Revised
Kansas Code for Care of Children explicitly delineates both a finding of unfitness and the
termination of parental rights as interlocutory orders that may be immediately appealed.
K.S.A. 2016 Supp. 38-2273(a) ("An appeal may be taken by any party . . . from any . . .
finding of unfitness or termination of parental rights."). By the same token, however, a
ruling denying a motion to terminate cannot be appealed. So the district court's denial of
the State's first motion—as a nonappealable order—did not become law of the case and,
therefore, could not bar consideration of the State's second motion to terminate.

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Moreover, law of the case "is not an inexorable command" and yields to avoid
clear error or manifest injustice. Collier, 263 Kan. 629, Syl. ¶¶ 2-3. Even if law of the
case were applicable here (though we think otherwise), relevant circumstances had
materially changed between the denial of the State's first motion to terminate and its
filing of the second motion. Most obviously, the contemplated permanent conservatorship
was tried, and it failed. In addition, as we have mentioned, the evidence indicated
A.L.E.A.'s emotional condition would continue to deteriorate absent a stabilized
permanency that A.A. could not provide because of his incarceration and probably would
remain unable to provide long after his release. Those are sufficiently significant factual
developments to undercut an arguable application of law of the case.

A.A. relies on In re A.S., 12 Kan. App. 2d 594, 598-602, 752 P.2d 705 (1988), in
which the court acknowledged that preclusion doctrines may be applied to successive
efforts by the State to terminate parental rights. But the case doesn't provide nearly the
support A.A. suggests. The court refers to res judicata and collateral estoppel but never
really differentiates those doctrines nor even alludes to law of the case. See State v.
Copper, No. 113,902, 2016 WL 4414612, at *10 (Kan. App. 2016) (unpublished opinion)
(Atcheson, J., concurring) (term "res judicata" may encompass claim and issue preclusion
principles generally, although it typically refers to claim preclusion). The decision in In
re A.S. appears to involve law of the case and successive motions to terminate parental
rights to a particular child in a single action. In any event, however, the court held that
changed circumstances would prevent an unyielding application of preclusion doctrines
to bar a second motion to terminate. 12 Kan. App. 2d at 601-02. The court then affirmed
the district court's decision to terminate parental rights on the State's second motion, filed
about 2 years after it had denied the first motion in the same case. The rule and result in
In re A.S. are, therefore, fully consistent with our determination.

To sum up, then, we find no legal grounds for imposing a preclusion bar to the
State's second motion to terminate A.A.'s parental rights.
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Conclusion

We have carefully examined the record and the law in light of the arguments A.A.
has advanced on appeal. As did the district court, we entertain no doubt about the
sincerity of A.A.'s stated desire to be a good father to A.L.E.A. But sincerity and desire
do not supplant the legal tests for unfitness, timely correction of unfitness, and best
interests of the child in termination proceedings. Measured by those legal tests, the
district court rendered an appropriate determination in terminating A.A.'s parental rights.

Affirmed.