In re G.P.

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NOT DESIGNATED FOR PUBLICATION

Nos. 117,665
117,666
117,667
117,668
117,669
117,670


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of G.P., R.P., R.P., H.P., T.P., and R.P.,
Minor Children.


MEMORANDUM OPINION

Appeal from Atchison District Court; MARTIN J. ASHER, judge. Opinion filed October 6, 2017.
Affirmed.

Robert D. Campbell, of Campbell Law Office, P.A., of Atchison, for appellant natural father.

Patrick E. Henderson, assistant county attorney, for appellee.

Rex L. Lane, of Lane Law Office LLC, of Atchison, guardian ad litem.

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

PER CURIAM: The Atchison County District Court terminated the right of C.P. to
parent his six sons largely based on his criminal convictions for raping his stepdaughter
(and their half-sister)—for which he is now serving about 25 years in prison. C.P. has
appealed and principally argues the district court's decision was not in the best interests
of his children. We find no error in the district court's ruling and affirm.

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FACTUAL AND PROCEDURAL HISTORY

The family came to the attention of State investigators in August 2014 when they
received a report that G.P., the eldest of C.P.'s sons, may have been physically abused.
G.P, then 10 years old, had a large bruise on his arm and eventually told investigators that
his father had grabbed him. He said C.P. often harshly punished him and his siblings.
G.P.'s brothers—Ro.P., Ri.P., H.P., T.P., and Ra.P.—ranged in age from 8 years old to
less than a month old. Also living in the home were their half-sister E.B., who was 14
years old, and R.P., the mother of all of the children.

The older children also reported that their home was dirty and infested with mice
and insects. Investigators observed bites on the children's arms and legs. A home
inspection confirmed the unhygienic conditions the children described. Based on that
information, the county attorney filed separate petitions for each child asking the district
court to find them in need of care. R.P. and C.P. did not contest the child in need of care
(CINC) determination. The district court removed the children from the home and
temporarily placed them in the custody of the State. An assigned caseworker prepared a
family reintegration plan requiring R.P. and C.P. to participate in programs aimed at
improving their parenting skills. The district court handled the CINC cases jointly. With
the exception of E.B.'s case, they have been consolidated for appeal. We have that
consolidated appeal before us.

During the CINC proceedings, investigators received information that C.P. had
been sexually abusing E.B. As a result, in January 2015, the county attorney filed six
felony charges against C.P. in district court. In an agreed disposition with the county
attorney, C.P. pleaded no contest to two counts of rape in September, and the district
court later sentenced him to a controlling term of 310 months in prison.

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Meanwhile in the CINC cases, the county attorney filed motions to terminate the
parental rights of C.P. and R.P. The district court heard evidence in January 2017. C.P.
was transported from prison for the hearing and was present with his court-appointed
lawyer. The county attorney's evidence focused primarily on R.P.'s fitness. At the
hearing, the district court properly took judicial notice of C.P.'s convictions for rape.
Pertinent here, the evidence showed that C.P. had only limited contact with his children
after they were removed from the home as being in need of care and before he was taken
into custody on the criminal charges. Following his incarceration, C.P. had no
communication with his children. C.P. neither testified at the termination hearing nor
offered countervailing evidence.

In a written decision, the district court found C.P. to be an unfit parent, the
unfitness was unlikely to change in the foreseeable future, and the best interests of the
children would be served by terminating C.P.'s parental rights. The district court did not
terminate R.P.'s parental rights, finding she had made sufficiently significant progress
that the children had been reintegrated into the home, albeit with continuing State
supervision. In a posttrial brief to the district court, the county attorney apparently
conceded the evidence failed to establish R.P.'s continuing unfitness.

C.P. has appealed the termination of his parental rights, arguing the insufficiency
of the evidence against him.

LEGAL ANALYSIS

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
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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 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 fact-finder 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 C.P.

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)(1). As
directed by the language of K.S.A. 2016 Supp. 38-2269(g)(1), the district court gives
"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
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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 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

Here, the district court found C.P. to be unfit based on three statutory grounds: (1)
conduct toward a child of a physically, emotionally, or sexually cruel or abusive nature,
as provided in K.S.A. 2016 Supp. 38-2269(b)(2); (2) conviction of a felony and
imprisonment, as provided in K.S.A. 2016 Supp. 38-2269(b)(5); and (3) following
removal of the children from the home, failure to maintain regular visitation, contact, or
communication with them, as provided in K.S.A. 2016 Supp. 38-2269(c)(2). In its written
ruling, the district court zeroed in on C.P.'s rape convictions.

This court recently outlined considerations applicable to 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.
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
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incarceration—reasonably could be viewed as likely to change in the foreseeable future."
In re K.O., 2017 WL 2403304, at *4.

The facts here stand in rather graphic counterpoint to the discussion in In re K.O.
and support the district court's finding of unfitness. C.P.'s crimes reflect a depravity
inconsistent with either a tenable suggestion of a functioning moral compass or a
behavioral exemplar cultivating good character in children. Nothing in the record
suggests C.P. had what could be considered an especially wholesome parental
relationship with his sons before the State intervened. The record evidence indicates the
opposite. After his sons were removed from the home, C.P. had little contact with them
and even that shrunk to nothing after he was jailed on the criminal charges—a period of
more than 2 years leading up to the termination hearing. And, of course, C.P. will remain
incarcerated until well after his children reach the age of majority. He cannot directly
provide substantial care for them while he is in prison. In short, C.P.'s predicament—a
predicament of his own making—has rendered him both unwilling and unable to
construct and maintain any semblance of a normal parent-child relationship with his sons
as they grow up.

The district court accurately assessed the circumstances and correctly concluded
C.P.'s criminal convictions and his extended term of imprisonment made him unfit within
the meaning of K.S.A. 2016 Supp. 38-2269(b)(5). The district court, likewise, correctly
found those circumstances would not change in the foreseeable future and really could
not possibly change until C.P. serves his sentences on the rape convictions. We are
persuaded that the evidence would, to a high degree of probability, lead a reasonable fact-
finder to determine C.P. was unfit to parent his sons and the condition of unfitness would
endure for years to come.

C.P. argues that terminating his parental rights does not foster the best interests of
his sons. His argument, however, rests mostly on the rhetorical assertion that because he
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is in prison—and will be until his sons are adults—and because R.P.'s rights were not
terminated, the preservation of his parental rights makes no practical difference. We are
unpersuaded.

At this juncture, C.P. bears the burden of showing the district court erred in its best
interests determination. The argument doesn't advance a good reason why the children
would benefit from a continuing association with C.P., so much as suggest that such an
association wouldn't be especially detrimental. That sort of "it could be worse" assertion
doesn't satisfy C.P.'s burden, especially given our standard of review on the issue. We
detect no legal error or misunderstanding of the relevant facts on the district court's
part—and C.P. doesn't point to any—so the remaining question is whether no reasonable
district court would have come to the same conclusion in these circumstances. We
comfortably conclude other district courts would have found the termination of C.P.'s
parental rights to be appropriate, meaning there has been no abuse of judicial discretion.

If C.P.'s parental rights were not terminated, his sons would grow up interacting
with him only through the limited contacts and communications permitted inmates in the
Kansas penal system and knowing him as the man who repeatedly sexually abused their
older half-sister. A district court reasonably could conclude that situation would not be
conducive to the children's emotional wellbeing, especially given their comparatively
young ages. The absence of some evidence, expert or otherwise, suggesting the children
would actually benefit from that kind of parental relationship buttresses the
reasonableness of the district court's ruling.

C.P. has not shown reversible error. Based on the findings and conclusions
regarding C.P.'s felony convictions and his ongoing incarceration, the district court
properly terminated his right to parent G.P., Ro.P., Ri.P., H.P., T.P., and Ra.P. We may
(and do) affirm the termination order on that basis alone.

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We mention, however, that the evidence supports the other grounds of unfitness
upon which the district court relied. C.P.'s sexual abuse of E.B. warrants a finding of
unfitness under K.S.A. 2016 Supp. 38-2269(b)(2) not only as to her, as the victim, but as
to any other children in the household. Likewise, C.P.'s failure to interact with his
children after their removal from the home, an extended period leading up to the
termination hearing, also constitutes unfitness as provided in K.S.A. 2016 Supp. 38-
2269(c)(2). But we dispense with further review of those grounds, since any analysis
would be legally superfluous and, thus, in the nature of dicta.

Affirmed.