In re M.H.

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NOT DESIGNATED FOR PUBLICATION

No. 117,157

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.

Richard P. Klein, of Olathe, for appellant natural mother.

Jacob M. Gontesky, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.

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

PER CURIAM: Mother appeals the district court's termination of her parental rights
to her son, M.H. Father's rights to this son were also terminated, and he brings a separate
appeal. Mother contends that the district court erred in finding her an unfit parent, in
finding her unfitness would not change in the foreseeable future, and in finding
termination is in the best interests of her child. She also contends she failed to receive
proper notice of the proceedings against her. Finding no error, we affirm.




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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
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 consisted of 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
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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 children; and he and his wife no longer felt
equipped to care for M.H. due to his mental health needs and his threats of violence.

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 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
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participate by conference call. Mother was otherwise occupied when the trial began but
her attorney indicated she had Mother's consent to proceed in her absence. Mother called
in and joined the proceeding after approximately one hour.

Before hearing testimony, the district court took judicial notice of the files in the
2015 CINC case, as well as the files in the 2009-2010 CINC case, a previous child
support case, and the federal criminal cases regarding the parents' convictions. The
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 for 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
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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., in part, because of
his need for insurance and possible subsidy obtained through adoption, but also 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.

Mother timely appealed the district court's judgment.

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.



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Mother's unfitness due to her conviction of a felony and imprisonment

We first address Mother'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."

Mother does not argue that she was not convicted of a felony or imprisoned. She
argues that the court's finding of unfitness was improper because the time frame for her
ability to appeal her conviction is not yet final. But 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. Instead, in support of her argument, Mother
cites to federal criminal procedures and timelines for direct and collateral appeals.
Further, Mother does not cite any authority in support of her argument that the
termination of her parental rights should be stayed pending the outcome of a collateral
appeal "if one is filed." 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).

Mother admits that her direct appeal was unsuccessful and her convictions were
upheld, but she contends that she still has time in which to file a collateral appeal. She
argues that waiting for the outcome of her habeas corpus petition—if she files one, and if
it is successful—will prevent her from having to reestablish her parental rights when her
burden to do so at a future date would be heavier.

Mother fails to demonstrate how waiting additional time is in M.H.'s best interests,
especially in light of the understanding that the foreseeable future is examined through
the perspective of the child, and children have the right to permanency within a time
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frame reasonable to them. 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 custody of the State 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 is approaching his 14th birthday. M.H. has the right to permanency within a time
frame that is reasonable to him. See 50 Kan. App. 2d at 1170-71. Further, incarceration is
a negative factor where, as here, it is the cause of further delay in the proceedings that are
not in the best interests of the child. 50 Kan. App. 2d at 1172.

Mother primarily claims that the State improperly relied solely on the length of her
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).

Mother contends that she made substantial efforts to fulfill her obligations to her
son despite her incarceration. But Mother cites only her participation in two case plan
meeting telephone calls, sending letters to M.H. and the KVC case manager, and
participating in the trial by telephone.

The record shows that in the seven months between the date that M.H. was placed
in the State's custody and the date of the termination trial, Mother sent M.H. one letter,
sent his case worker one letter, and participated in two teleconferences which were
initiated by M.H.'s case worker. The record does not reflect any attempt by Mother to
communicate with M.H. during the nearly two years that he lived with G.B.'s family. At
trial, Mother presented no evidence or statements showing any bond with M.H., her
awareness and involvement in his treatment or care, or any feelings for her son. We
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easily find clear and convincing evidence in the record that Mother did not make
reasonable attempts, even given the limitations imposed by her prison conditions, to
contact and maintain a relationship with her son.

Unfitness in the foreseeable future

Mother claims, essentially, that because she participated in the case plan and the
six-month review by conference calls and expressed an ongoing interest in M.H.'s well-
being, the district court erred in finding that her circumstances are unlikely to change in
the foreseeable future. She contends that because she made progress after M.H. was
adjudicated a CINC in 2009 and was able to regain custody of him, she has shown that
she could give him a stable and nurturing home.

Mother fails to recognize that she is not in a position to reintegrate with M.H., and
he is no longer six years old. M.H. is 13 years old with significant emotional, mental, and
behavioral issues that require sustained care and support. Mother is in a federal prison in
Texas. She claims she could be released from prison as early as 2020, instead of serving
her whole sentence until approximately 2023, but she provided no evidence at trial
regarding an early release date.

Regardless of Mother's purported release date, she fails to address the significance
of an additional three to four years in M.H.'s life without the permanency and stability
that are in his best interests. In re M.H., 50 Kan. App. 2d at 1170-71. As the State points
out, her release date, even if in 2020, means that M.H. will be nearly 17 years old, and
this is the earliest she could begin to work toward reintegration. Viewed in the light most
favorable to the State, and especially from M.H.'s perspective, the next three to four years
are the foreseeable future. We find clear and convincing evidence that Mother's condition
of unfitness is unlikely to change in the foreseeable future.

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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).

Mother argues that M.H.'s best interests are served by fostering a relationship with
her and Father. She also claims that there was no evidence that M.H.'s mental needs
could best be served by terminating Mother's parental rights. In making these two
arguments, Mother fails to acknowledge that the record reveals she made little effort in
fostering a relationship with M.H. after he went into the State's custody, and the record is
silent as to any efforts prior to that. She did not take advantage of her opportunity at trial
to show that she had any relationship with M.H. before she went to prison, and she did
not demonstrate that she could best meet his needs from prison. See In re D.T., 30 Kan.
App. 2d 1172, 1175, 56 P.3d 840 (2002) (demonstrating the unreasonableness of placing
the wants of the parent over the best interests of the child).

The district court considered the physical, mental, and emotional health of M.H.
The evidence showed 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
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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. He needed
therapy and services, which required insurance more likely attainable through adoption
than through a permanent custodian's social security benefit. M.H. refused to accept any
communication from his parents, and his adamant position did not wane or waiver over
time. 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.

Mother argues that there is no evidence that KVC did anything to repair her
relationship with M.H. That burden of maintaining the relationship, however, rests on
Mother. The KVC case worker established the connection with Mother, invited her to
participate in the case plan meeting and six-month review, and arranged for Mother to
participate in the legal proceedings via teleconference. The KVC case worker
communicated with M.H.'s therapist about the appropriateness of giving him Mother's
one letter and followed the recommendation of that professional. Further, the case worker
did subsequently ask M.H. if he wanted Mother's letter or to talk with her by phone, and
M.H. refused.

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

Mother cannot adequately care for M.H. or meet his substantial needs from prison.
The two cannot be reintegrated, and, given M.H.'s negative feelings toward Mother and
his refusal to have any communications with her, Mother cannot contribute to his well-
being in any meaningful way. 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
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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 Mother's parental rights is in M.H.'s best interests.

Adequacy of notice

We note Mother's additional argument that the State deprived her of her statutory
and constitutional rights to due process by failing to give her adequate notice of other
grounds for terminating her parental rights. Specifically, Mother contends that the motion
to terminate her parental rights did not allege specific facts to support an allegation that
she failed to adjust her 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 this issue because even assuming the correctness of Mother's
argument, we find clear and convincing evidence that independently supports the
termination of Mother's parental rights pursuant to K.S.A. 2016 Supp. 38-2269(b)(5),
(conviction of a felony and imprisonment), which was adequately noticed, fully argued
by the State at trial, and properly found applicable by the district court. Thus, we find 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 do not, however, 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.