In re H.I.N.

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NOT DESIGNATED FOR PUBLICATION

No.118,660

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Adoption of H.I.N.

MEMORANDUM OPINION


Appeal from Saline District Court; PAUL J. HICKMAN, judge. Opinion filed August 10, 2018.
Affirmed.

Jennifer L. Wyatt and Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, for appellant.

Bobby J. Hiebert, Jr., of Law Office of Bobby Hiebert, Jr., LLC, of Salina, for appellee.

Before MCANANY, P.J., PIERRON, J., and WALKER, S.J.

PER CURIAM: The district court terminated the parental rights of H.I.N.'s natural
father and granted Stepfather's petition for adoption. Father appeals. We affirm.

H.I.N. was born in Utah on May 8, 2012. Father and Mother were never married to
each other. Father maintained contact with and had a relationship with H.I.N. until his
arrest in October 2014. After his arrest, Father maintained contact with H.I.N. by
telephone by calling his mother (Grandmother) because Mother and H.I.N. lived with her.
However, because H.I.N. was only two years old, the phone calls were brief.

Following his conviction for two counts of sexual assault, the Utah court
sentenced Father to two consecutive indeterminate sentences of 1 to 15 years of
incarceration. Father contends that the board of pardons informed him he would be
released from prison following his seven-year rehearing in December 2024 if he
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completes the sex offender treatment program. His maximum sentence does not expire
until 2044.

In mid-2015, Mother and H.I.N. moved from Utah to Dodge City. Shortly
thereafter, Mother and H.I.N. moved to Saline County and Mother married Stepfather.
The district court found Stepfather had since taken care of H.I.N.'s daily needs, taken her
to the doctor, and provided for her medical needs. The court found that H.I.N. had
interacted with Stepfather's family. He testified H.I.N. had stayed with his family in
Maine while he and Mother went on vacation. They had spent a month and a half in
Maine around December 2016. Additionally, H.I.N. recognized Stepfather as her father.
Mother had shown H.I.N. pictures of Father, but she did not recognize him as her father.

Father had no contact with Mother or H.I.N. after they moved to Kansas. Mother
testified she had not provided Father with their current contact information, but he was
aware they had moved to Kansas. Stepfather testified that about one and a half years
before the trial, Mother had taken H.I.N. to Utah and they saw Father's parents. They had
not had contact since. The district court found that Grandmother had contact with both
Father and Mother and could have provided Father with Mother's contact information.
Father claimed he had asked Grandmother to contact Mother through social media but
she was unable because Mother had blocked her. Mother denied blocking Grandmother
from contacting her.

The district court noted that Father could have contacted friends to get in contact
with Mother, but he had failed to make any effort to obtain her contact information.
Additionally, Father had the contact information for Stepfather's counsel since July 2016
when Stepfather originally filed the petition. Even so, Father never sought to obtain
contact with Mother through counsel. The court considered the phone contacts between
Father and H.I.N. as incidental contacts in determining that Father had not had contact
with H.I.N. for more than two years before Stepfather filed the petition for adoption. The
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court noted that Father's participation in H.I.N.'s life over the next seven years would be
restricted to phone calls.

The district court also found Father had not provided financial support for H.I.N.
in the two years before Stepfather filed for adoption. Mother reported that before his
incarceration, Father had offered to provide financial support but never followed through.

Throughout his incarceration, Father had worked for Utah Correctional Industries
(UCI), earning $1.00 per hour. He estimated his monthly income was between $100 and
$150. Father proposed that he could set up payments through the Utah Office of
Recovery Services or send money orders directly to Mother. Although Father proposed
different methods through which he could have provided financially, his statements of
contribution were prospective, and he never took any steps to follow through. The court
found that Father had made six child support payments in the two-year period preceding
the amended petition. He even paid an additional amount to apply to arrears.

Interestingly, the district court stated several times that no child support order had
been in effect and the record contains no further information about the six payments or
the arrears. Although Stepfather and the court seem adamant that there was no prior
custody or child support order from Utah, that point seems somewhat unclear. Stepfather
denies being aware of any other order that could affect this case, and the court stated
multiple times in its findings that no previous order exists. However, during closing
arguments, Father mentioned a temporary custody order that the State of Utah filed, and
the court found that Father had made six child support payments in the two years
preceding the amended petition and he paid an additional amount that went to arrears.
"Child support payments" and "arrears" generally mean there was some order in place.

Ultimately, the district court found that Father had failed to assume parental duties
for the two consecutive years preceding Stepfather's adoption petition and that
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termination of Father's parental rights was in H.I.N.'s best interests. The court considered
Stepfather to be a stable and respected person who had provided love and affection to
H.I.N. It noted that Stepfather had been with H.I.N. for at least two years and had
assumed the duties of a father for her. The district court also noted that Father would
remain incarcerated until at least 2024, at which point H.I.N. would be 12 years old.
Upon release, Father would be a registered sex offender for at least 10 years. The court
considered the time remaining in Father's sentence, H.I.N.'s age, and Father's registration
requirement in determining that he would not be able to provide for H.I.N.'s needs in the
foreseeable future.

The district court granted Stepfather's petition to terminate Father's parental rights,
granting Stepfather's adoption of H.I.N. Father appeals.

When a district court terminates parental rights based on factual findings made
under K.S.A. 2017 Supp. 59-2136(h)(1), we review those factual findings to determine if,
after reviewing all the evidence in the light most favorable to the prevailing party, the
findings were supported by clear and convincing evidence. In re Adoption of B.B.M., 290
Kan. 236, 244, 224 P.3d 1168 (2010). Clear and convincing evidence is evidence
"sufficient to establish that the truth of the facts asserted is 'highly probable.'" In re B.D.-
Y., 286 Kan. 686, 696, 187 P.3d 594 (2008). When determining whether factual findings
are supported by clear and convincing evidence, an appellate court does not weigh
conflicting evidence, pass on the witnesses' credibility, or redetermine questions of fact.
B.B.M., 290 Kan. at 244.

Courts are to strictly interpret adoptive statutes in favor of maintaining the rights
of the natural parents where the statute is being used to terminate the right of the natural
parent without consent. In re Adoption of Baby Girl P., 291 Kan. 424, 430, 242 P.3d
1168 (2010). The party seeking to terminate a parent's rights has the burden of proving by
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clear and convincing evidence that termination is appropriate under K.S.A. 2017 Supp.
59-2136. 291 Kan. at 430.

When a nonconsenting parent is unable to fulfill the usual parental duties due to
incarceration, the district court must decide whether the parent has sought the
opportunities and options that could be available to perform those duties to the best of his
or her abilities. In re Adoption of S.E.B., 257 Kan. 266, 273, 891 P.2d 440 (1995). If an
incarcerated parent has made reasonable efforts to contact and maintain a continuing
relationship with his or her children, it is up to the district court to determine whether
such efforts are sufficient. In re Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145
(1987).

The district court terminated Father's parental rights pursuant to K.S.A. 2017
Supp. 59-2136(h)(1)(G), under which the court may terminate parental rights of a father
if, upon a showing by clear and convincing evidence, it determines the father has failed
or refused to assume parental duties for two consecutive years before the petition was
filed.

Father contends the district court's findings are unsupported by substantial
competent evidence. He asserts that his offer to provide financial support was sufficient
to be considered a reasonable effort to assume his parental duties. He claims the court
improperly discounted his offer to set up support payments through the Utah Office of
Recovery Services as insufficient even though he did not have Mother's address to
provide for payment. He also claims the court should not penalize him for Mother
interfering with his fundamental right to maintain contact with H.I.N. by moving and not
providing him with contact information.

Father contends his offer of financial support was sufficient to comprise
reasonable efforts and the district court should not have disregarded his offer as
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incidental. He cites to Baby Girl P., in which the Kansas Supreme Court determined that
the Court of Appeals had erred by finding the father's offer to provide anything the
custodial parents needed was insufficient because it was all-encompassing and not
reasonable. 291 Kan. at 434. In determining that the offer was not merely incidental
parental activity, the Supreme Court found that the father had retained counsel, filed for
visitation rights, provided gifts, and offered to provide anything needed to support his
daughter. 291 Kan. at 434. In Baby Girl P., the offer alone was not necessarily sufficient
to show the father was committed to assuming the role of a father, but the court
considered his actions in addition to his offer to determine his attempts were more than
incidental parental activities. 291 Kan. at 434.

Here, the district court found that Father had contributed nothing financially since
October 2014 and that he stated he could have provided financial support but did not.
Mother testified that before his incarceration, Father promised financial assistance but
failed to follow through. This court has determined that it is proper for district courts to
consider events outside the two-year period before the filing of the petition when a
natural parent has been incarcerated all or much of the two years when determining
whether the parent made sufficient efforts to maintain a close relationship with the child.
In re Adoption of S.J.R., 37 Kan. App. 2d 28, 43, 149 P.3d 12 (2006) (quoting Matter of
Adoption of A.J.P., 24 Kan. App. 2d 891, Syl. ¶ 2, 953 P.2d 1387 [1998]). Father did not
dispute Mother's assertion that he did not provide financially before his incarceration.
"Uncontradicted evidence which is not improbable or unreasonable is ordinarily regarded
as conclusive and cannot be disregarded unless it is shown to be untrustworthy." Matter
of Adoption of W.J., 262 Kan. 788, Syl. ¶ 1, 942 P.2d 37 (1997). Mother's statement
shows that even when he had contact with H.I.N., he failed to contribute financially, thus
supporting the district court's determination that Father presented only prospective plans
for contributing financial support while failing to follow through.

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Father asserts the district court did not sufficiently consider Mother's unilateral
move to Kansas without providing him with her new contact information. He contends
the court should have considered her actions as interference with his fundamental right to
maintain contact with his child. Father claims the court should have considered Mother's
moving without giving him contact information as a significant factor in considering all
the surrounding circumstances. He noted that knowing she moved to Kansas did not
provide him with an ability to contact her. He acknowledged his incarceration was his
fault, but states that his incarceration should not have been the end of a relationship with
H.I.N.

Father supports his argument by citing F.A.R., in which the stepfather filed to
adopt the children of an incarcerated father. In F.A.R., the district court found that the
mother who refused to allow the children to visit the father had interfered with his rights
to maintain contact with his sons. While incarcerated, the father moved for and was
awarded visitation rights with his sons. The mother's refusal was contrary to the court's
visitation order. Even so, the F.A.R. court found that the mother's interference was merely
one of the circumstances considered, not a principal factor, in the district court's
determination that the father's consent was required for the stepparent adoption. 242 Kan.
at 237. In determining the father assumed his parental duties, the court weighed the
actions taken by father to try to regain contact with his children without contact from the
mother. 242 Kan. at 238-40.

Here, the district court considered Mother's testimony that she had not provided
Father with current contact information. Father testified that he asked Grandmother to
contact Mother but he believed Mother had blocked Grandmother from contacting her.
Mother testified she had not blocked Grandmother. The court acknowledged that Mother
did not help Father maintain a relationship with H.I.N., but narrowed its focus to whether
he failed to assume his parental duties in finding he made no efforts to maintain a
relationship. Although Father testified he had asked Grandmother to contact Mother, the
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court found Mother's testimony credible when she stated that Grandmother had not
contacted her despite the ability to do so through social media. The court also noted that
Father could have tried to obtain contact information from unnamed third parties, such as
Mother's family or mutual acquaintances. Both Mother and Stepfather testified that
Father had not sought to contact or provided for H.I.N. Father did not controvert their
testimony. Instead, he relied on not having contact information to justify his inaction.

As Stepfather asserts, the test here is action, not hopes of a relationship someday.
Natural parents have prevailed when they have actively sought involvement in their
children's lives. The F.A.R. court found the father had assumed parental duties when his
family corroborated his statements that he tried to contact his children through his
relatives, he had written letters to the children's mother, he had sought legal advice to
enforce visitation rights, and he had mailed money to the mother. 242 Kan. at 239. In
Baby Girl P., the father's efforts were reasonable when he retained counsel, filed court
actions to obtain visitation, gave gifts for his daughter, and offered to provide for any
needs his daughter had. 291 Kan. at 434. Here, the only attempt Father reportedly made
to regain contact with H.I.N. was when he asked Grandmother to contact Mother. But
unlike in F.A.R., Grandmother did not corroborate his assertion, and Mother countered
the assertion by testifying that Grandmother had never contacted her. The court pointed
out that Stepfather originally filed the case in July 2016. Father had contact information
for Stepfather's attorney and could have used that as a way to contact H.I.N. His failure to
act when given an opportunity further supports the court's determination that he failed to
assume his parental duties. Father's inaction was supported by sufficient competent
evidence.

The district court found it was in H.I.N.'s best interests to remain placed with
Mother and Stepfather and that Stepfather was a stable, respected person who has shown
H.I.N. love and affection. The court noted that Stepfather has been in her life for at least
two of her five years of life and has taken on the responsibilities of a father. To the
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contrary, Father will remain incarcerated until at least 2024 and will register as a sex
offender for at least ten years upon release. The court determined Father would be unable
to provide for H.I.N.'s needs for the foreseeable future and that despite claims that he
wants to be involved in her life, he has failed to demonstrate that.

Under K.S.A. 2017 Supp. 59-2136(h)(2)(A), the court may consider the best
interests of a child as a factor when determining whether parental rights should be
terminated. The best interests of the child are not a controlling factor when determining
whether a natural parent failed to assume parental duties. F.A.R., 242 Kan. at 235. The
court's factual findings under K.S.A. 2017 Supp. 59-2136(h)(1), including the K.S.A.
2017 Supp. 59-2136(h)(2) findings, are reviewed in the light most favorable to the
prevailing party to determine whether they are supported by clear and convincing
evidence. B.B.M., 290 Kan. at 244. Clear and convincing evidence is evidence "sufficient
to establish that the truth of the facts asserted is 'highly probable.'" In re B.D.-Y., 286
Kan. 686, 696, 187 P.3d 594 (2008).

Under the best interests of a child standard, courts determine which custody
arrangements would be to the child's greatest benefit. Black's Law Dictionary 191 (10th
ed. 2014). A court may consider many factors, including: the emotional bond between the
child and a parent or guardian; the ability of the parent or guardian to give the child love
and guidance; the ability of the parent or guardian to provide necessities; the child's
established living arrangements; the child's preference if the child is old enough for the
court to consider such preference; and a parent's ability to foster a healthy relationship
with the child and other parent. Black's Law Dictionary 191 (10th ed. 2014). Here, under
K.S.A. 2017 Supp. 59-2136(h)(2), the district court did not have to make findings about
the child's best interests in terminating Father's parental rights as the court had already
made sufficient findings that Father had failed or refused to assume the duties of a parent
for two consecutive years under K.S.A. 2017 Supp. 59-2136(h)(1).

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Father contends the district court's finding that Stepfather was a stable, respected
person who had provided love and affection for H.I.N. was unsupported by evidence.
Instead, he asserts the evidence showed that Stepfather was unstable because of his
disability based on anxiety and depression. He also contends instability based on the
quick progression of Mother and Stepfather's relationship and the potential move to Rush
County.

Stepfather testified he had received social security since 2010 for disability based
on anxiety and depression. He had taken medication for anxiety for approximately 24
years and learned many coping mechanisms in that time. His anxiety caused him to
struggle in large areas. Since being on disability, Stepfather had gone back to college and
was working on his master's degree in Instructional Technology at Fort Hays State
University online. For future employment, he had completed a background check to
allow him to go into schools and work with teachers in updating technology. Even while
receiving disability benefits, Stepfather has taken care of household expenses since
Mother and H.I.N. had lived with him.

As to the possible move to Rush County, Stepfather stated he and Mother had
purchased a home there because it was less expensive and closer to Fort Hays. They had
been working on the house and planned to move there once the house was in livable
condition. In addition, he believes living in the small community will help him to more
easily take part in school functions and be a better support for H.I.N.

The evidence supports the district court's findings that Stepfather is stable. While
he receives social security for his disability, he has furthered his education in an attempt
to reenter the workforce in a different capacity. Even while on disability, he had provided
financially for Mother and H.I.N. for at least two years. No evidence contradicted his
ability to provide financially or demonstrated any instability that could prevent Stepfather
from adequately caring for H.I.N.
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Father contested the significance the district court placed on its finding that
Stepfather had been with H.I.N. for two years because Father also spent two years with
her. Importantly, the court pointed out the two years Stepfather had spent with H.I.N.
were the most recent years of her life. The court also found that in those two years
Stepfather had taken on the responsibilities of a parent and showed a commitment to be
involved in H.I.N.'s life. The court found that Stepfather ensured H.I.N.'s daily needs
were met, took her to the doctor, and gave her medication as prescribed. Conversely, the
court found that despite Father's claims that he wanted to be involved in her life, he had
failed to show it. In this analysis, the importance is not necessarily just the amount of
time but also the relationship established and the parental responsibilities assumed. The
district court did not fail to consider Father's two years spent with H.I.N., but made
findings of fact that support the significance of the two years Stepfather spent with her.

Father contends the district court found that he would be unable to provide for
H.I.N.'s needs because he will have to register as a sex offender for 10 years after his
release from prison. The district court held:

"[Father] won't be available to care for [H.I.N.'s] needs for at least seven (7) years as
2024 is his earliest release date. If [Father] were actually released when [H.I.N.] is
approximately twelve (12) years of age he will be a registered sex offender for at least ten
(10) years due to his conviction. He will be unable to provide for [H.I.N.'s] needs for the
foreseeable future."

Father claims no evidence showed that his registration would prohibit him from gainful
employment and that the court did not balance his potential difficulty finding
employment with Stepfather's unemployment for disability.

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Although Stepfather was unemployed, he received social security which allowed
him to provide financially for H.I.N.'s needs. In that time, he furthered his education to
improve his ability to reenter the workforce in a new capacity.

Additionally, while no evidence showed Father might not find gainful
employment while registering as a sex offender, the district court found that he would be
unable to provide for H.I.N.'s needs for the foreseeable future. Father asserts the board of
pardons will release him in 2024, but he could be incarcerated until 2044. When
considering the "foreseeable future," courts observe from the child's perspective, not the
parent's perspective. In re R.S., 50 Kan. App. 2d 1105, 1117, 336 P.3d 903 (2014). With
regard to incarcerated parents, this court has found that as few as seven months of
additional incarceration time, when considered with other factors, was sufficient to
establish the parent's condition would not change in the foreseeable future. In re S.D., 41
Kan. App. 2d 780, 790, 204 P.3d 1182 (2009) (citing In re M.B., 39 Kan. App. 2d 31, 47-
48, 176 P.3d 977 [2008]). In S.D., the court determined that 11 more months of
incarceration, which would have resulted in S.D. being in out-of-home placement for half
of her life, when considered with other factors, was sufficient to establish the parent's
condition was unlikely to change in the foreseeable future. Here, with a minimum of
seven years remaining, the uncertainty of his release date, and the additional factors
addressed above, the district court did not err by determining Father will be unable to
provide for H.I.N.'s needs for the foreseeable future.

Affirmed.