In re M.H.

1

NOT DESIGNATED FOR PUBLICATION

No. 117,127

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

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

MEMORANDUM OPINION


Appeal from Johnson District Court; KATHLEEN SLOAN, judge. Opinion filed December 1, 2017.
Affirmed.

Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, for appellant natural father.

Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.

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

PER CURIAM: Father appeals the district court's termination of his parental rights
to his son, M.H. Mother's rights to this son were also terminated, and she brings a
separate appeal. Father contends that the district court erred in finding him an unfit parent
and in finding termination is in the best interests of his child. He also contends he failed
to receive proper notice of the proceedings against him. Finding no error, we affirm.

Factual and procedural background

M.H. is a child under the age of 18, born in 2004. In September 2009, when he
was five years old, he was adjudicated as a child in need of care (CINC) due to conditions
2

of the home and the family's resistance to services. M.H. was removed from the home
and placed in foster care but was reintegrated with his parents by October 2010.

In early 2014, Mother and Father entered pleas of guilty to certain counts of a 22-
count federal indictment for various types of fraud. Mother is incarcerated in a federal
medical center in Texas. Her earliest possible release date is in November 2020. Father is
incarcerated in a federal correctional facility in Indiana. His earliest possible release date
is in February 2022.

Before the parents' imprisonment, Father took M.H. to G.B., an acquaintance of
his, and asked G.B. to take care of him while Father was incarcerated. Father signed
some type of permission for M.H. to stay with G.B.'s family, which included G.B., his
wife, and their three children, two of whom had special needs.

In July 2014, the Department for Children and Families (DCF) received a report
that M.H. had been abused while in foster care in 2009-2010. DCF investigated and
found the report unsubstantiated. DCF received another report regarding M.H. in March
2015—a nonabuse and neglect report regarding the relationship between M.H. and G.B.
DCF assessed the situation but no services were recommended because M.H. was already
in therapy.

On December 14, 2015, G.B. contacted police to have them remove M.H. from his
home and reported the following information to them: He had been caring for M.H. for
approximately a year and a half, since Father had left him there before going to prison;
M.H. had been abused and tortured by his parents and raped by his foster parents in
Missouri; Father was a martial arts expert who punished M.H. if he showed any emotion;
M.H. talked about killing his parents and foster parents, and it was his life's mission to do
so; M.H. posed a safety risk to G.B.'s own three children; and he and his wife no longer
felt equipped to care for M.H. due to his mental health needs and threats of violence.
3

Police took M.H. to the Juvenile Intake and Assessment Center and interviewed
him. He stated he was determined to get revenge on his parents and foster parents and
that he was "consumed" with this idea and did not care if he hurt others in his desire to
obtain revenge. M.H. provided graphic descriptions of killing his parents and foster
parents but admitted he did not have a plan to do so. He claimed that if he could, he
would go to school and kill everyone to show his parents he is serious. Later that day,
M.H. was interviewed by a DCF social worker. M.H. told her he did not feel angry but
had violent thoughts of killing his parents and foster parents. He disclosed that he had cut
himself with a knife in an attempt to commit suicide. M.H. consistently reported this
same information to multiple professionals who spoke with him, including a police
officer, a juvenile intake specialist, and the DCF social worker. During M.H.'s stay with
G.B.'s family, he had been admitted to Marillac as an in-patient on two occasions and had
a seven-week in-patient stay at Kids TLC.

On December 15, 2015, the State filed a petition to adjudicate M.H. a CINC. The
same day, M.H. was placed in the temporary custody of the Secretary of DCF due in part
to an emergency. At the CINC hearing, Mother participated by telephone and was
represented by her attorney. Father did not participate but was represented by his
attorney. The district court found clear and convincing evidence that M.H. was a CINC
and adjudicated him as such. The court also found reintegration with the parents was not
a viable option.

On July 7, 2016, the district court held a trial on the motion to terminate parental
rights. Both Mother and Father were represented by counsel, and both were allowed to
participate by conference call.

Before hearing testimony, the district court took judicial notice of the files in the
2015 CINC case, as well as those files in the 2009-2010 CINC case, a previous child
support case, and the federal criminal cases regarding the parents' convictions. The
4

district court accepted into evidence the following exhibits: (1) the parents' federal
indictment; (2) the second superseding indictment; (3) the amended judgment regarding
Mother; and (4) the amended judgment regarding Father.

Testimony was given by the DCF social worker assigned to M.H.'s case, by M.H.'s
case manager from KVC Behavioral Health System, and by Father. Father's testimony
focused largely on his appeals in his criminal case. Father did indicate he had family
members willing to care for M.H. and specifically named J.G., his half-sister on the East
Coast. Mother chose not to testify.

On July 26, 2016, the district court issued a memorandum decision. The court
summarized the CINC history of M.H. and the circumstances surrounding his present
status as a CINC. This included his parents' long-term incarcerations, the resignation of
the custodian Father had arranged M.H. while they were in prison, and M.H.'s mental and
emotional issues, including his homicidal ideation toward his parents. The court found
that M.H. has "significant behavioral and mental health issues, and his needs in both
regards are substantial." The district court found clear and convincing evidence to find
Mother and Father unfit as parents pursuant to K.S.A. 2016 Supp. 38-2269(b)(5) for their
felony convictions and imprisonment, and K.S.A. 2016 Supp. 38-2269(b)(8) for their lack
of effort to adjust their circumstances, conduct, and conditions to meet the needs of M.H.
The district court found these conditions of unfitness were unlikely to change in the
immediate or foreseeable future. The district court noted that M.H. had no relationship
with his parents, and that he did not want one. The court found that a permanent
custodianship was not the best permanency goal for M.H. because of his need for
insurance and possible subsidy obtained through adoption and because M.H. strongly
opposed contact with his parents. Finally, the district court found it in the best interests of
M.H. to terminate the parental rights of Mother and Father.

Father timely appealed the district court's judgment.
5

The governing law

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). 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).

On appeal, we review a district court's decision to terminate parental rights to
determine if, after reviewing all of the evidence in the light most favorable to the
prevailing party, a rational fact-finder could have found it highly probable that the
parent's rights should be terminated. In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d
711 (2014). The evidence must be clear and convincing. K.S.A. 2016 Supp. 38-2269(a).
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. In re M.H., 50 Kan. App. 2d at 1170.

Father's unfitness due to his conviction of a felony and imprisonment

We first address Father's contention that the evidence did not support a finding of
unfitness under K.S.A. 2016 Supp. 38-2269(b)(5)—"conviction of a felony and
imprisonment."

Our law, as stated in K.S.A. 2016 Supp. 38-2269(b)(5), provides that in making a
determination of unfitness, the court shall consider conviction of a felony and
imprisonment. In this case, the relevant facts are undisputed. Father entered a plea of
6

guilty to certain counts of a 22-count federal felony indictment, was convicted of those
counts, and was sentenced to 108 months in prison commencing in December 2014.

Father argues that the court's finding of unfitness is improper because his appeal of
his conviction is not yet final. Instead of citing the relevant statute, Father cites federal
criminal procedures and suggests that the district court should have sua sponte taken
judicial notice of his federal appeals. Father does not cite any authority in support of his
claim that the termination of his parental rights should be stayed until his appeals are
decided. Failure to support a point with pertinent authority or show why it is sound
despite a lack of supporting authority or in the face of contrary authority is akin to failing
to brief the issue. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't,
301 Kan. 993, 1001, 348 P.3d 602 (2015). And the plain language of K.S.A. 2016 Supp.
38-2269(b)(5) requires the district court to consider "conviction of a felony and
imprisonment." This language does not require a determination that the conviction is
final—a determination that may take years.

Father also contends that incarceration can be a mitigating factor. But where, as
here, Father's incarceration is a cause of further delays that are not in the best interests of
the child, incarceration is a negative factor. In re M.H., 50 Kan. App. 2d at 1172.

Father primarily claims that the State improperly relied solely on the length of his
incarceration.

We agree that the court must look to more than the length of a parent's
incarceration. When a parent is imprisoned for a long term and cannot provide the
customary parental care and guidance, the trial court must consider the extent to which
the imprisoned parent has made reasonable attempts to contact and maintain an ongoing
relationship with the child. The sufficiency of those efforts is for the trial court to
determine. In re Adoption of F.A.R., 242 Kan. 231, 236, 747 P.2d 145 (1987).
7

Father contends that he made substantial efforts to fulfill his obligations despite
his incarceration. Father cites the following efforts: the guardianship he created with
G.B.'s family before he went to prison, his participation in the case planning call and the
six-month evaluation call, and his participation at trial. The balance of Father's argument
merely indicts DCF for not allowing him to make an alternate arrangement for
guardianship and the State for not making reasonable efforts to obtain the necessary
mental health services for M.H.

The record contradicts Father's argument by showing that Father made no attempt
to communicate with M.H. while in prison. Nothing in the record shows that Father tried
to communicate with M.H. while he was living with G.B.'s family. In fact, Father did not
even communicate directly with that family; Father claims he tried to maintain contact
with them only indirectly, through M.H.'s grandfather. And in the seven months between
the date that M.H. was taken into custody and the date of the termination trial, Father
participated in only one teleconference, which was initiated by the KVC case worker.
Father presented no evidence showing he had any contact, bond, or relationship
whatsoever with M.H.; no evidence to show his awareness of or involvement in M.H.'s
treatment or care; and no evidence that Father either had or expressed any feelings
whatsoever for his son. The record reflects that M.H. has only negative feelings about
Father. We find clear and convincing evidence in the record that Father did not make
reasonable attempts, even given the limitations imposed by his prison conditions, to
contact and maintain an ongoing relationship with his son.

Unfitness in the foreseeable future

Father argues that if he is successful in his appeal of his criminal case, his
conviction and/or sentence could change in the foreseeable future. Father testified that his
first appeal resulted in a remand for resentencing. He claimed that he filed a second
appeal in his criminal case but indicated his brief was not due for another two weeks, and
8

that he did not know when his second appeal would receive a ruling. He acknowledged
that he was in prison based on a plea, and that his current "out date" was in 2022. He
stated that he participated in his presentence investigation via telephone, did not believe
he was going to be placed on probation, but that no one had ever told him what his
sentencing range would be. When asked if he had appealed his sentence, Father indicated
vaguely that it was part of his appeal but the rest was about judicial corruption, witness
threats, and tampering by the public defender's office, saying, "it is lengthy, very
lengthy."

Courts must strive to decide these cases in "child time" rather than "adult time." In
re D.T., 30 Kan. App. 2d 1172, 1175, 56 P.3d 840 (2002). Were children held in limbo
while awaiting the various direct appeals and subsequent petitions for review and
petitions for certiorari that are necessary before a felony conviction can be deemed final,
years could easily pass. Children need not make that sacrifice for their felonious parents.

A parent's actions, not intentions, are the measure to be used in determining
likelihood of change in the foreseeable future:

"But we must judge these cases based mostly upon actions, not intentions, and we must
keep in mind that a child deserves to have some final resolution within a time frame that
is appropriate from that child's sense of time." In re A.A., 38 Kan. App. 2d 1100, 1105,
176 P.3d 237.

A parent's past behavior is a strong factor in predicting future behavior. See In re Price, 7
Kan. App. 2d 477, 483, 644 P.2d 467 (1982). Father's past behavior shows an unswerving
pattern of no communication with his son. Nothing in the record shows that Father's
inattention to his son may change in the future. Father's past inactions, coupled with the
length of Father's sentence, support a finding that his condition is unlikely to change in
the foreseeable future, as is required by K.S.A. 2016 Supp. 38-2269(a).
9

The best interests of the child

The district court is in the best position to make findings on the best interests of
the child, and we will not disturb its judgment absent an abuse of judicial discretion. See
In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). A judicial action
constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable;
(2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas
Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). When
determining if terminating parental rights is in the best interests of a child, "the court
shall give primary consideration to the physical, mental and emotional health of the
child." K.S.A. 2016 Supp. 38-2269(g)(1).

Father contends that because finding an adoptive home for M.H.—a "severely
disabled teen aged boy"—will likely be immensely difficult, the district court abused its
discretion in finding that termination was in the best interests of the child. Father
contends that DCF did not make any inquiry regarding alternate family placement options
for M.H. and that his sister in North Carolina may be willing to serve as M.H's permanent
custodian. Father alleges that the State failed to prove that adoption is the only way to
provide insurance and resources for the care of M.H.

As an initial matter, the State need not demonstrate that alternate means of
meeting a child's basic needs exist; the standard is what is in the best interests of the
child. It is the court's responsibility to determine how to best serve a child's physical,
mental, and emotional needs. K.S.A. 2016 Supp. 38-2269(g)(1); See In re K.W., 45 Kan.
App. 2d 353, 354, 246 P.3d 1021 (2011).

The district court held that a permanent custodianship was not in M.H.'s best
interests and was not the best permanency goal for him, stating, "not only because of the
need for insurance and subsidy obtained through the pursuit and completion of adoption,
10

but also based upon the fact that the relationship between the parents and their son is
nonexistent and any contact is strongly opposed . . . by the child. Theirs is a broken
relationship that has little to no hope of repair."

The district court heard the testimony that M.H. had a possible placement option
with his Father's sister and that an Interstate Compact on Placement of Children transfer
had begun but then stalled because the aunt was moving from South Carolina to North
Carolina. But M.H. had never met that aunt. The district court also heard testimony that a
permanent custodianship was not appropriate because M.H. would not receive "subsidy
or insurance," and that in a permanent custodianship, a child over 14 years of age does
not receive subsidies or health insurance. Whether M.H., as a ward, could be covered
through the aunt's private insurance plan or that of her husband was unknown. The
district court also heard evidence that M.H. receives social security disability through
Mother, which would end if her parental rights were terminated. Nonetheless, M.H.'s case
manager and his guardian ad litem both opined that a permanent custodianship was not in
his best interests.

Rather than demonstrate how the district court abused its discretion, Father simply
argues for an alternative interpretation of the evidence. But an appellate court does not
weigh conflicting evidence, pass on the witnesses' credibility, or redetermine questions of
fact. In re M.H., 50 Kan. App. 2d at 1170.

Father fails to acknowledge that he made little to no effort in fostering a
relationship with M.H. after M.H. went into the State's custody, and the record is largely
silent as to Father's efforts prior to that. Father did not take advantage of his opportunity
at trial to show that he had any relationship with M.H. before he went to prison or to
show that he could best meet M.H.'s needs from prison. See In re D.T., 30 Kan. App. 2d
at 1175 (demonstrating the unreasonableness of placing the wants of the parent over the
best interests of the child).
11

The district court considered the physical, mental, and emotional health of M.H.
The evidence shows a child who had been in and out of the system since he was five
years old. Mother and Father placed M.H. with a custodian with dubious legal authority
to try to meet his physical, mental, and emotional needs while they were taken into
federal custody and sentenced to nine years in prison. M.H. expressed homicidal ideation
regarding his parents, and it was his life's mission to kill them, regardless of hurting other
people. M.H. had begun to act out his violent impulses. M.H. experienced suicidal
ideation and had taken overt steps to commit suicide at least three times. M.H. needed
therapy and services, which required insurance more likely attainable through adoption
than through a permanent custodian. M.H. consistently refused to accept any
communication from his parents. While away from his parents and while receiving
sustained, consistent services, he was learning to use coping skills and to enjoy his
community. M.H. was doing well in school, wanted to start volunteering at an animal
shelter, and had requested more therapy.

Waiting additional time is not in M.H.'s best interests. See In re M.H., 50 Kan.
App. 2d at 1170-71. M.H. was taken to stay with G.B.'s family in approximately March
2014 when he was barely 10 years old. He has been in the State's custody since
December 2015 when he was 11 years old. As of the hearing of this appeal, M.H. has
been in the State's custody for nearly two years, and he is approaching his 14th birthday.
Assuming Father's early release date of 2022 is accurate, M.H. will be 18 years old when
Father is released. M.H. has the right to permanency within a time frame that is
reasonable to him. See 50 Kan. App. 2d at 1170-71.

Based on the facts of record, a reasonable person could conclude that the child is
better off if a permanent placement goal of adoption is pursued to provide him with the
physical, mental, and emotional care and the support and stability he deserves and
requires. We thus find no abuse of discretion in the district court's finding that
termination of Father's parental rights is in M.H.'s best interests.
12

Adequacy of notice

We note Father's additional argument that the State deprived him of his statutory
and constitutional rights to due process by failing to give him adequate notice of other
grounds for terminating his parental rights. Specifically, Father contends that the motion
to terminate his parental rights did not allege specific facts to support an allegation that
he failed to adjust his circumstances, as is required to terminate under K.S.A. 2016 Supp.
38-2269(b)(8) ("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"). We find it
unnecessary to reach the merits of this issue because even assuming the correctness of
Father's argument, we find clear and convincing evidence that independently supports the
termination of Father's parental rights pursuant to K.S.A. 2016 Supp. 38-2269(b)(5),
which was adequately noticed, fully argued by the State at trial, and properly found
applicable by the district court. Thus, there is no reasonable possibility that the error
affected the outcome of this case. See State v. Hurley, 303 Kan. 575, 583-84, 363 P.3d
1095 (2016). We note, however, that we do not condone the State's practice,
demonstrated in this case, of noticing all the statutory grounds for termination of parental
rights when it does not intend to pursue all of them.

Affirmed.