In re M.P.

1

NOT DESIGNATED FOR PUBLICATION

No. 115,777

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of M.P., C.P., and D.P.

MEMORANDUM OPINION


Appeal from Barton District Court; MIKE KEELEY, judge. Opinion filed December 23, 2016.
Affirmed.

Shannon S. Crane, of Hutchison, for appellant.

Rita A. Sunderland, assistant county attorney, and Douglas A. Matthews, county attorney, for
appellee.

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

Per Curiam: K.P., the biological father of M.P., C.P., and D.P., appeals from the
district court's order terminating his parental rights to all three of the children. Parental
rights may be terminated only in circumstances set out by statute and only when clear and
convincing evidence supports termination.

On appeal, Father argues the evidence presented at his termination hearing was
insufficient to merit termination of his parental rights and it was not in the best interests
of the children to have his parental rights terminated. The district court found Father was
unfit because at least 4 of the statutory factors for determining unfitness under K.S.A.
2015 Supp. 38-2269 applied to Father. Among the statutory factors deemed applicable by
the district court were: (1) use of illegal drugs that hindered Father's ability to care for the
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children, (2) emotional neglect of the children, (3) conviction of a felony and
imprisonment, and (4) the children had been in extended out-of-home placement.

Father's termination hearing took place in February 2016. The evidence presented
at the termination hearing indicated Father was currently incarcerated for possession of
methamphetamine with intent to distribute and possession of a firearm by a felon. Father
had been incarcerated since June 2014, and would not be released until November 2018.
During the arrest that led to Father's incarceration, the children were found near loose
marijuana, methamphetamine, and weapons. The evidence presented also established
Father had been convicted of various crimes 26 times since 2000, and had received
multiple disciplinary violations while incarcerated. At the time of the termination hearing
the children had not seen Father since June 2014, when they were approximately 2 to 3
years old, and would not have been able to see Father again until late 2018, when they
would be approximately 6 to 7 years old. Thus, at the time of the termination hearing,
Father had not had physical contact with his children for over 18 months and likely
would not have physical contact with them for 32 more months. The children have
remained in State custody since Father's arrest in June 2014.

Though incarcerated, Father maintained some level of contact with the children.
He called the children approximately once a month when his mother was watching the
children. Father also wrote letters to the children once a month and had his mother sell
his car and use the proceeds to buy the children birthday and Christmas presents.
However, due to Father's incarceration he was unable to complete several portions of his
case plan, such as receiving mental health, drug, and alcohol evaluations, and then
complying with orders/recommendations from those evaluations. Father was also
uncooperative during an in-person meeting with social workers from St. Francis
Community Services (St. Francis), causing that meeting to be prematurely terminated by
prison officials.

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The termination of parental rights is a serious matter. A review of the entire record
in this case reveals clear and convincing evidence that Father was unfit as a parent, that
the conditions leading to that finding were unlikely to change in the foreseeable future,
and that termination of Father's parental rights was in the best interests of the children.
Therefore, we affirm the district court's judgment.

Because Father challenges the sufficiency of the evidence supporting termination
of his parental rights, and due to the fact-sensitive nature of these cases, the facts will be
set out in detail. Father and Mother had three children together who are involved in this
case—M.P. born in 2011 and twins D.P. and C.P. born in 2012. Mother also had another
child, who was not biologically related to Father and is not part of this action, but who
Father treated as one of his children. Mother voluntarily relinquished her parental rights
on February 9, 2016, the day of Father's termination hearing. After the district court
terminated Father's parental rights to all three children in February of 2016, the
termination of parental rights actions regarding M.P., D.P., and C.P. were consolidated
for appeal on April 26, 2016.

On June 19, 2014, petitions to have each child adjudicated as a child in need of
care (CINC) were filed in Barton County. The petitions were based on a police report
detailing a search warrant executed on Father's residence on June 17, 2014, at
approximately 12:12 a.m. Inside the residence, police officers found methamphetamine,
loose marijuana, a loaded pistol, and swords. The officers found C.P. and D.P. near the
couch of the living room, with methamphetamine located on the table next to the couch,
and loose marijuana on the couch itself. M.P. was found asleep on the master bed near
loose marijuana. During a subsequent interview with Mother, she stated Father had been
selling illegal narcotics out of the residence and that both she and Father used illegal
narcotics. Mother stated that she did not live at Father's residence, but often stayed there
with the children. The children were placed in State custody. Father was incarcerated on
June 17, 2014.
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A temporary custody hearing took place on June 20, 2014, where the district court
ordered the children to be removed from the home and placed in the temporary custody
of the Kansas Department of Children and Families (DCF). At this hearing the court
found that both the drugs and weapons located in the home during the raid were within
the reach of the children, making the children likely to sustain harm if not immediately
removed. The court ordered Father to submit to drug and alcohol evaluations and U.A.
tests. The court also granted DCF discretion to conduct supervised visits with Mother or
Father, but prohibited visitation in the home until further notice. Father was unable to
have supervised visits with the children because he was incarcerated.

On July 29, 2014, the children were adjudicated as CINC. At this hearing the
district court ordered the children to remain in DCF custody. The court ordered that
Father could have supervised visits with the children at the discretion of St. Francis.
However, Father was unable to have supervised visits with the children because he was
incarcerated.

On January 20, 2015, Father appeared in district court through his court-appointed
attorney for a review hearing. At the hearing, the court ordered that Father be allowed to
write letters to the children, as long as the letters passed through St. Francis and were
deemed appropriate. St. Francis was granted discretion to terminate the letters if they
were found to be inappropriate. Father wrote the children letters approximately once a
month. The district court scheduled a permanency hearing for April of 2015.

The first permanency hearing was held on April 21, 2015. The district court found
that reintegration with either parent was no longer a viable goal and ordered the children
to remain in DCF custody. The court also ordered the appointment of an educational
advocate for the children.

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On November 16, 2015, the State filed a motion to terminate the parental rights of
both Mother and Father. Attached to the motion to terminate, and incorporated by
reference by the district court, were the points of severance prepared by St. Francis. After
this filing, the State discovered Father had been relocated to a different correctional
facility. A second filing of the motion to terminate was sent to Father's new place of
incarceration at the Hutchinson Correctional Facility (Hutchinson) on December 7, 2015.
The points of severance prepared by St. Francis indicated that, in the opinion of St.
Francis, several of the factors found in K.S.A. 2015 Supp. 38-2269 applied to Father
making him unfit, he was likely to remain unfit for the foreseeable future, and
termination of his parental rights was in the best interests of the children.

On February 9, 2016, the district court held a hearing to consider the State's
motion to terminate Father's parental rights. Prior to this hearing Mother voluntarily
relinquished her parental rights to all three children. It should be noted that during the
hearing the court took judicial notice of Father's Barton County criminal cases No. 14 CR
252 and No. 2009 CR 149, though they do not appear in the record.

At the hearing, Father testified he was currently incarcerated at Hutchinson for
selling illegal drugs and he did not expect to be released until November 2018. Father
stated he had not seen his children since June 17, 2014, because of his incarceration.
Additionally, Father testified he had not provided financial support to his children since
the 2014/2015 tax year, when it was taken out of his income tax refund.

Father testified that during his incarceration he had maintained contact with the
children via phone and through monthly letters he had written. Father stated that he was
only able to communicate with the children via phone when his mother was watching the
children, which occurred approximately once a month. These phone conversations were
limited to roughly 5 minutes, due to the age of the children and their attention spans.
Father's conversations with the children focused on current events and what the children
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were doing in school or doing with Father's mother that day. Father stated the purpose of
the phone calls and letters was to maintain a relationship with the children and to form a
bond with them.

Additionally, Father testified he had completed two vocational certificates while
incarcerated and had recently enrolled in a paralegal studies program. However, Father
stated he was unable to enroll in parenting classes or drug treatment because his expected
release date was too far away and inmates with closer release dates received priority over
him.

Father also testified that he resorted to selling drugs as a way to provide for his
family and to make ends meet because Mother did not work. Father admitted the children
had been physically neglected by Mother while they lived in his home, as he would often
return from work to find the children unfed or with dirty diapers. Father stated he often
skipped work to make sure his children were fed and properly cared for. Father had a job
performing manual labor, but he did not state where he had been employed or what
industry he had been employed in.

Chelsi Newell, a family support worker for St. Francis, testified at the hearing.
Newell was involved with Father's case and performed a "worker-parent" visit with
Father while he was incarcerated at the Norton Correctional Facility on September 25,
2015. Newell testified that Father was defiant throughout this meeting and that it
ultimately ended negatively. Newell was attempting to go over the case plan with Father
and needed Father to sign a document stating his goals in the case plan. Father initially
refused to sign the paper, crumpled it up, and threw it on the floor. Father ultimately
signed the case plan but remained argumentative throughout the process. The visit was
cut short by prison officials due to Father's actions and demeanor. The entire meeting
lasted approximately 10 minutes. Father was given 2 warnings for talking disrespectfully
to Newell before the visitation was terminated. Subsequently, Father's actions during the
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meeting resulted in 7 disciplinary reports. Newell testified that Father would be unable to
complete several of the objectives in his case plan due to his incarceration, such as drug,
alcohol, and mental health evaluations and treatment.

Michelle Williams, a supervisor at St. Francis who oversaw Father's case, testified
that since the children had been in DCF custody beginning June 20, 2014, Father had not
had any visits with the children. Williams stated that St. Francis had periodic contact with
Father throughout the termination and CINC proceedings. St. Francis met with Father in
person on June 27, July 25, August 1, September 12, and October 14, of 2014, while
Father was incarcerated in Barton County. St. Francis also had phone contact with Father
on January 26, 2015, and March 16, 2015, and mailed Father paperwork in June 2015.
Thus, St. Francis had communicated with Father at least 7 times prior to the termination
hearing. Williams also testified that upon Father's release in November 2018,
reintegration with the children might take up to 1 year.

Finally, N. W., Father's mother and the children's grandmother, testified that
Father was able to talk to some of the children via phone when they visited her, which
occurred approximately twice a month. N.W. testified that C.P. and D.P. were in a
different foster home from M.P., so she did not always have all of the children at the
same time, and thus, Father was only able to talk to each child approximately once a
month. N.W. stated that the children recognized pictures of Father, recognized his voice,
and M.P. often stated she wanted to visit Father. N.W. also read to the children the letters
that Father had sent. Finally, N.W. testified that Father had a vehicle he instructed her to
sell, and he directed her to use the proceeds from the sale to buy specific presents for the
children on their birthdays and at Christmas.

After the above testimony was presented, the district court took a 30-minute recess
to review the criminal files it had taken notice of, the letters Father had written to the
children, and to consider the case. Upon return, the court ordered the termination of
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Father's parental rights. The court considered the factors in K.S.A. 2015 Supp. 38-
2269(b)-(c) and found that multiple factors applied, making Father unfit. The court then
found that Father's unfitness was unlikely to change in the foreseeable future. Finally, the
court considered the physical, mental, and emotional needs of the children and found it
was in the children's best interests to terminate Father's parental rights.

Father filed his notice of appeal April 12,, 2016, which was not timely. This court
granted Father the permission to docket an appeal out of time and granted leave to docket
the appeal instanter.

Standard of Review

The Kansas Legislature has specified that the State must prove "by clear and
convincing evidence that the child is a child in need of care." K.S.A. 2015 Supp. 38-
2250. In addition to child in need of care adjudications, the clear and convincing evidence
standard of proof applies to all termination of parental rights cases. K.S.A. 2015 Supp.
38-2269(a).

"[W]hen an appellate court reviews a trial court's determination that a child is in need of
care, it should consider whether, after review of all the evidence, viewed in the light most
favorable to the State, it is convinced that a rational factfinder could have found it highly
probably, i.e., by clear and convincing evidence that the child was a CINC." In re B.D.-
Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).

See In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011) (applying standard of
review).

In making this determination, an appellate court does not weigh conflicting
evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re
B.D.-Y., 286 Kan. at 705.
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Does Clear and Convincing Evidence Support the District Court's Determination that
Father was Unfit under K.S.A. 2015 Supp. 38-2269?

If a child is adjudicated a CINC, parental rights may be terminated "when the
court finds by clear and convincing evidence that the parent is unfit by reason of conduct
or condition which renders the parent unable to care properly for a child and the conduct
or condition is unlikely to change in the foreseeable future." K.S.A. 2015 Supp. 38-
2269(a). The Revised Kansas Code for Care of Children, K.S.A. 38-2201 et seq., lists a
number of nonexclusive factors the district court must consider in determining a parent's
unfitness. See K.S.A. 2015 Supp. 38-2269(b) and (c). Any one of the factors "may, but
does not necessarily, establish grounds" for terminating a parent's rights. K.S.A. 2015
Supp. 38-2269(f). The district court is not limited only to the statutory factors in making
a determination of unfitness. K.S.A. 2015 Supp. 38-2269(b).

Here, the district court found Father unfit due to his lengthy criminal history, his
persistent drug use, his current incarceration for a felony, his presumptive release date,
and the impact of these events on M.P., C.P., and D.P. Based on this, the court found the
following factors applied:

K.S.A. 2015 Supp. 38-2269(b)(3)—use of intoxicating liquors or narcotic or
dangerous drugs of such duration or nature as to render the parent unable to care
for the ongoing physical, mental or emotional needs of the child;
K.S.A. 2015 Supp. 38-2269(b)(4)—physical, mental or emotional abuse or neglect
or sexual abuse of a child;
K.S.A. 2015 Supp. 38-2269(b)(5)—conviction of a felony and imprisonment;
K.S.A. 2015 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;
and
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K.S.A. 2015 Supp. 38-2269(b)(9)—whether the child has been in extended out of
home placement as a result of actions or inactions attributable to the parent and
one or more of the factors listed in subsection (c) apply.

Father argues that the appropriate public or private agencies failed to make
reasonable efforts to rehabilitate the family, as required by K.S.A. 2015 Supp. 38-
2269(b)(7).

Next, we must determine whether clear and convincing evidence supported the
termination of Father's rights. The first step is to determine whether the district court's
findings of unfitness were supported by clear and convincing evidence.

K.S.A. 2015 Supp. 38-2269(b)(3)—Use of intoxicating liquors or narcotic or dangerous
drugs of such duration or nature as to render the parent unable to care for the ongoing
physical, mental or emotional needs of the child.

The district court stated that Father had an extensive criminal record, including his
current incarceration for distribution and possession with intent to distribute
methamphetamine in 2014, as well as 26 other convictions, including drug or alcohol
related convictions for driving under the influence, possession of marijuana and
paraphernalia in 2004, possession of methamphetamine in 2005, possession of drug
paraphernalia in 2006, and possession of marijuana with intent to sell in 2009. The court
stated that, based on Father's history of using alcohol and drugs it was likely he would
continue to do so, given Father had multiple opportunities to quit after the birth of his
children and prior to his present incarceration. Thus, it appears the court properly found
that because of the young age of the children, Father's limited ability to interact with
them, and Father's release date being years away, his substance abuse had rendered him
unable to care for his children physically, emotionally, or mentally prior to and
subsequent to his incarceration.
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In his brief, Father does not appear to directly address the evidence regarding this
factor, or why it is insufficient. Regardless, clear and convincing evidence supports the
district court's finding. The police report detailing the events surrounding Father's most
recent arrest indicated that when police entered Father's residence to conduct the search
warrant C.P. and D.P. were located on a couch near marijuana and methamphetamine,
while M.P. was asleep on a bed next to loose marijuana. After the search warrant was
conducted, Mother reported that Father was selling illegal narcotics from the home and
had been using illegal narcotics. At Father's termination hearing he admitted he was
currently incarcerated for selling drugs. Additionally, police records contained in the St.
Francis court report indicated Father had been, at a minimum, convicted of: (1)
furnishing alcohol to minors in 2004, (2) possession of drug paraphernalia in 2005, (3)
possession of opiates, opium or narcotics in 2005, (4) possession of hallucinogens with
intent to distribute in 2009, (5) disorderly conduct in 2010, and (6) domestic battery;
physical contact by family member in rude manner in 2010.

Additionally, Father testified at the termination hearing that he had not seen any of
his children in person since June 17, 2014, and would not be able to do so until his
anticipated release date in November 2018. Father also testified he had not provided
financial support for his children since the "tax year [of] 2014/2015," which he believed
was paid with his income tax refund. Additionally, Father admitted the children were
neglected by Mother while he was at work, in that they were often unfed and left with
dirty diapers. All of these facts indicated Father had used drugs for a prolonged period of
time, which had resulted in multiple arrests, convictions, and periods of incarceration,
which limited his ability to care for the children.

Based on these facts, a rational factfinder could have found it highly probable that
Father's use of intoxicating liquors or narcotic or dangerous drugs rendered him unable to
care for the ongoing physical, mental, or emotional needs of the children.
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K.S.A. 2015 Supp. 38-2269(b)(4)—Physical, mental or emotional abuse or neglect or
sexual abuse of a child.

The district court found that subsection (b)(4) applied because Father's drug use
and absence from the home amounted to emotional neglect of the children. The court also
found that Father was at least partially responsible for the physical neglect of the children
that was blamed on Mother—i.e. the times when the children did not have food or clean
diapers. Father argues in his brief that the court's finding was not supported by substantial
competent evidence. Father argues, instead, that Mother neglected the children and that
he often took time off from work to care for them. He further argues that, although illegal
drugs and guns were found in the house, there was no evidence the children had access to
the drugs or guns, and there was no evidence the children were malnourished, mistreated,
or denied proper medical care.

Father is correct that the record does not indicate the children were malnourished
or ever denied medical care. However, at the termination hearing Father admitted the
children were physically neglected by Mother and merely asserts he was not to blame
because he took care of the children when he was not working. Additionally, the police
record detailing the events of the Father's 2014 arrest clearly indicated all three children
were found next to loose marijuana. Further, there was methamphetamine on the table
next to the couch, which the district court found was within reach of the children. Finally,
a loaded pistol and several swords were found in the residence, though no information on
their accessibility to the children was present in the record.

Based on these facts, a rational factfinder could have found it highly probable that
Father physically, mentally, or emotionally neglected the children.




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K.S.A. 2015 Supp. 38-2269(b)(5)—Conviction of a felony and imprisonment.

The district court took judicial notice of the Barton County criminal cases No. 14
CR 252 and No. 2009 CR 149, though they do not appear in the record. The court
reviewed the criminal cases and criminal files prior to making its decision. The court
found, and it is uncontested, that Father was convicted of a felony, that he had been
incarcerated since June 2014, and that he would not be released until November 2018.

Based on these facts, a rational factfinder could have found it highly probable that
Father was unfit due to his felony conviction and imprisonment.

K.S.A. 2015 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.

The district court found that subsection (b)(8) applied to the present case. At the
termination hearing, the district court stated that subsection (b)(8) "semi-applies" because
Father continued to sell and use drugs when he was not incarcerated, despite his lengthy
criminal history. Father appears to address the applicability of this factor by asserting that
"the Court must find that under no reasonable circumstances can the welfare of the child
be served by a continuation of the parent-child relationship." Father also argues that "a
Court must weigh the benefits of permanency for the child without the presence of his or
her parents against the continued presence of the parent and the accompanying issues
created for the child's life." It does not appear that Father challenges the sufficiency of the
evidence supporting the district court's finding regarding subsection (b)(8) in any other
way.

As indicated above, the record before the district court showed that Father had
been convicted of crimes 26 times since 2000. Additionally, the State presented evidence
that Father was unfit due to his failure to complete case plan tasks or continue to provide
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ongoing financial support. Newell testified Father was not able to complete several of the
tasks required in his case plan. Specifically, Father has not been able to take any
parenting or drug treatment classes because of his incarceration. However, Father
testified he was unable to enroll in these classes because enrollment in these programs is
based on the proximity of each inmate's anticipated release date, and Father's release date
was too far away to allow enrollment. Father also testified that during his last in person
meeting with member of Saint Francis, the meeting was terminated by prison personnel
due to Father's refusal to cooperate with the Saint Francis worker. However, Father had
enrolled in, and completed, two vocational training programs and was currently enrolled
in a paralegal studies program, which he believed will help him find work and avoid
drugs upon his release.

Based on these facts, a rational factfinder could have found it highly probable that
Father was unfit due to his lack of effort to change his conduct and conditions.

K.S.A. 2015 Supp. 38-2269(b)(9)—Whether the child has been in extended out of home
placement as a result of actions or inactions attributable to the parent and one or more of
the factors listed in subsection (c) apply.

When the child is not in the physical custody of a parent the district court must
consider, but is not limited to, the additional factors for determining unfitness found in
subsection (c). K.S.A. 2015 Supp. 38-2269(c). The children were placed in DCF custody
in June 2014 and had not been returned to Father's custody at any time since their
removal from the home, due to Father's incarceration. Thus, the children had been in
State custody since Father's arrest in June 2014, a period of approximately 28 months as
of the date of the termination hearing. Additionally, the children's Mother had voluntarily
relinquished her parental rights February 9, 2016. Thus, the children were not in the
physical custody of a parent for an extended period and the court was required to
consider the factors in subsection (c).
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The district court properly found that subsection (b)(9) applied because the
children were in extended out-of-home placement, and not in the physical custody of a
parent, and, as a result, the court expressly considered the factors in subsection (c),
though it did not state which factors, if any, applied. Thus, the court properly considered
the factors in subsection (c), as required by K.S.A. 2015 Supp. 38-2269(c). Though the
court did not state that any of the factors in subsection (c) applied, Father may still be
found unfit because any one factor found in K.S.A. 2015 Supp. 38-2269(b) or (c)
"standing alone may, but does not necessarily, establish grounds for termination of
parental rights." K.S.A. 2015 Supp. 38-2264(f). Thus, the court was only required to
consider subsection (c), which it did, and the termination of parental right can be
supported by finding any factor in subsection (b) applied.

Though the district court did not state what, if any, factors found in subsection (c)
applied, the St. Francis report prepared for the State's motion to terminate parental rights
indicated that two factors in subsection (c) applied. St. Francis stated that K.S.A. 2015
Supp. 38-2269(c)(2), failure to maintain regular visitation or contact, applied because
Father had not seen his children in person since June, 2014, had limited phone calls with
the children, had written the children letters, and would not physically see the children
until he was released in November 2018. St. Francis also stated that K.S.A. 2015 Supp.
38-2269(c)(4), failure to pay a reasonable portion of the cost of care, applied because
Father was ordered to pay $400 a month in child support and owed the State $2,509 as of
October, 2015.

Based on these facts, a rational factfinder could have found it highly probable that
Father was unfit due to multiple factors found in subsection (c).

The appropriate public or private agencies made reasonable efforts to rehabilitate the
family, as required by K.S.A. 2015 Supp. 38-2269(b)(7).
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Father argues the appropriate public or private agencies failed to make reasonable
efforts to rehabilitate the family, as required by K.S.A. 2015 Supp. 38-2269(b)(7). This
court has stated before that K.S.A. 2015 Supp. 38-2269(b)(7) "clearly impose[s] an
obligation upon the relevant social service agencies to expend reasonable efforts toward
reintegrating the child with his or her parents." In re J.R., No. 104,975, 2011 WL
2175953, *5 (Kan. App. 2011) (unpublished opinion). However, this obligation does not
require a "herculean effort" by an agency to lead the parent through the responsibilities of
the reintegration plan. 2011 WL 2175953, at *5. An agency is not required to exhaust any
and all resources to rehabilitate a parent, an agency must pursue rehabilitation efforts
with the best interests of the child in mind, recognizing that a child's perception of time
differs from that of an adult. 2011 WL 2175953, at *5.

Williams testified that between June 2014 when Father was arrested, and
September 2015, St. Francis met with Father in person five times and had phone contact
with Father twice. Additionally, Newell testified that St. Francis' contact with Father and
progress on the case plan were largely stifled by Father's refusal to cooperate in the face-
to-face meeting on September 25, 2015. In that meeting, Father crumpled up a document
containing the case plan goals, threw the document on the ground, and was generally
argumentative. Finally, Newell testified that Father was unable to comply with many
portions of the rehabilitation program because he was incarcerated and his release date
was too far away. Thus, many of the required tasks had to be placed on hold indefinitely.

Based on these facts, a rational factfinder could have found it highly probable that
the appropriate agencies made reasonable efforts to rehabilitate the family.



17

Clear and Convincing Evidence Supports the District Court's Determination that
Father's Unfitness was not Likely to Change in the Foreseeable Future.

Next, assuming one or more of the above factors established Father's unfitness by
clear and convincing evidence, we must determine if Father's unfitness was likely to
change in the foreseeable future. K.S.A. 2015 Supp. 38-2269(a),(f). The district court
expressly found there was clear and convincing evidence that Father's unfitness was
unlikely to change in the foreseeable future. At the termination hearing, the court seemed
to base this finding on Father's extensive criminal history and the fact that Father would
not be released from prison for 2 1/2 years, at which point he would not have seen his
children for 4 1/2 years. On appeal, Father principally argues whether he was likely to
remain unfit was irrelevant because the State had not shown that he was unfit by clear
and convincing evidence.

A district court may predict a parent's future unfitness based on his or her past
history. In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982). Moreover, the term
"foreseeable future" is measured from the child's perspective and takes into account a
child's perception of time. In re S.D., 41 Kan. App. 2d 780, 790, 204 P.3d 1182 (2009).
This court has considered periods of time as short as 7 months to be the foreseeable
future from a child's perspective. 41 Kan. App. 2d at 790.

Here, ample evidence supports the district court's determination that Father was
likely to remain unfit in the foreseeable future. First, Father had an extensive criminal
record—26 convictions—which indicated he had prior opportunities to change and failed
to do so. Second, Father had received 9 disciplinary reports while he was incarcerated
between June 2014 and February 2016, which is further evidence of his inability to
change. Third, though Father had contact with the children through phone calls and
letters, he had not seen the children since June 2014, a period of approximately 28
months, and would not be allowed to physically see them until his release in November
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2018. C.P. and D.P. were almost 2, and M.P. was approximately 3, when they were
removed from Father's home. At the time of the termination hearing, the children were 3,
3, and 4, respectively. At the time of Father's expected release, 33 months from the
termination hearing, the children would be approximately 6, 6, and 7. Further, Williams
testified the children would not be reintegrated immediately upon Father's release, in fact,
the process could take over a year, making the children 7, 7, and 8. The children would
have been without their Father for approximately 1/2 to 2/3 of their lives by the time
Father was released from prison and integration could be completed. Thus, evidence was
presented that Father was unlikely to change his conduct in the foreseeable future and his
involvement or status with the children was unlikely to change in the foreseeable future,
as measured from the perspective of the children.

Based on these facts, a reasonable factfinder could have determined that Father's
unfitness was unlikely to change in the foreseeable future.

Finally, Father argues terminating his parental rights was not in the best interests
of the children because of the bond Father had developed with the children through his
phone calls and letters.

Because it hears the evidence directly, the district court is in the best position to
determine the best interests of the child, and an appellate court cannot overturn it without
finding an abuse of discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47
P.3d 413 (2002); In re K.P., 44 Kan. App. 2d 316, 322, 235 P.3d 1255 (2010). An abuse
of discretion occurs when the district court acts in an unreasonable, fanciful, or arbitrary
manner, or when the court bases its decision on an error of fact or an error of law.
Northern Natural Gas Co. v. ONEOK Field Services, Co., 296 Kan. 906, 935, 296 P.3d
1106 (2013).

19

Father cites no legal authority to support his argument. Here, ample evidence
regarding Father's criminal history, drug use, the children's proximity to drugs at the time
of Father's arrest, Father's incarceration, and the length of Father's physical absence all
indicate the district court's decision was not unreasonable, fanciful, or arbitrary. Further,
Father has not alleged any error of fact or law by the district court. Thus, the district court
did not abuse its discretion in determining termination of Father's parental rights was in
the best interests of the children.

Because of all the evidence and findings made above, we affirm the district court's
decision.

Affirm.