In re S.T.

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NOT DESIGNATED FOR PUBLICATION

No. 121,376

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of S.T., A Minor Child.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; GREGORY D. KEITH, judge. Opinion filed December 13,
2019. Reversed and remanded with directions.

Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellant natural father.

Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.

Before ATCHESON, P.J., BRUNS, J., and BURGESS, S.J.

PER CURIAM: The Sedgwick County District Court found J.T. to be legally unfit
to parent his son S.T. because he would not be released from prison for at least six
months and had not communicated with the child during his incarceration. But the
evidence failed to support the district court's finding that those conditions of unfitness
were unlikely to change in the foreseeable future. The district court, therefore, erred in
terminating J.T.'s parental rights. We reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

S.T. was born in early April 2017 and was placed in the custody of the Department
for Children and Families five days later. A.B., S.T.'s mother, had exposed him to
methamphetamine during her pregnancy, and she had continuing drug abuse problems.
J.T. and A.B. were not married. When S.T. was born, J.T. was homeless and
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unemployed. He worked intermittently on pipeline construction projects that typically
involved travel and extended stays in remote places. Nobody disputes the circumstances
rendered S.T. a child in need of care.

A.B. eventually relinquished her parental rights to S.T. in favor of his being
adopted. She did not actively participate in the termination proceedings in the district
court and is not a party to this appeal.

After J.T.'s paternity was established, he sought legal custody of S.T. and an
assigned social service agency set up a plan to integrate J.T. and S.T. as a family unit. As
part of that process J.T. had regular supervised visits with S.T. According to the social
workers who testified at the termination hearing, J.T. managed those visits capably and
demonstrated entirely appropriate parenting skills with S.T.

Not to put too fine a point on it, J.T. apparently didn't manage other aspects of his
life particularly well. J.T. was arrested in June 2017 on felony assault and firearms
charges. He entered a plea to and was convicted of at least one felony in the district court
in connection with that incident. The district court sentenced J.T. to prison but placed him
on probation. J.T. had been in custody from his arrest until September 2017. Upon his
release, he resumed supervised visits with S.T. and otherwise continued working on the
family unification plan.

The record on appeal in this case lacks details about J.T.'s adjudication on those
charges and his criminal history generally. At the termination hearing, the district court,
at the request of the State and without objection of any other participants, took judicial
notice of the files in a number of criminal cases in which J.T. had been charged. But none
of those files has been made part of the record. We have been able to piece together at
least some of the salient aspects of the prosecution stemming from J.T.'s arrest in June
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2017, given its centrality to the grounds for termination. We have been less successful in
figuring out what happened in the other cases.

In August 2018, J.T. was charged with misdemeanor domestic battery in Wichita
municipal court. The disposition of that charge is not clear from the record. But the
district court revoked J.T.'s probation on the felony conviction from a year earlier and
ordered him to serve 23 months in prison.

After J.T. was taken into custody in August 2018 and sent to prison, he had no
contact with S.T., who was then almost a year-and-a-half old. S.T. had been placed with a
family that had already taken in his older half-sibling. At the termination hearing, a social
worker testified that parents in prison seldom have personal contact with their children,
even by telephone. She noted that communication with S.T. by telephone would have
been impractical given his age.

In its motion to terminate J.T.'s parental rights, the State identified multiple
statutory grounds: a parent's conviction of a felony and imprisonment, K.S.A. 2018
Supp. 38-2269(b)(5); the inability of social service agencies to unify the family despite
reasonable efforts, K.S.A. 2018 Supp. 38-2269(b)(7); a parent's failure to adjust his or her
circumstances, conduct, or condition to meet the child's needs, K.S.A. 2018 Supp. 38-
2269(b)(8); and a parent's failure to maintain regular visitation, contact, or
communication with the child, K.S.A. 2018 Supp. 38-2269(c)(2). At the termination
hearing in early January 2019, the State presented the criminal case files, other
documentary evidence, and testimony from two social workers involved in preparing and
overseeing the family unification plan for J.T. and S.T. Although J.T. was present at the
hearing with an appointed lawyer, he did not present any additional evidence. The district
court acknowledged and did not dispute J.T.'s "proffer" that he was scheduled to be
released from prison in July 2019, although he would not have completed his full
sentence until mid-2020.
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Using a form journal entry, the district court found J.T. to be unfit based on his
felony conviction and incarceration and the resulting lack of communication with S.T.
The form contains boxes corresponding to each of the statutory grounds for termination
listed in K.S.A. 2018 Supp. 38-2269(b) and (c). The district court marked those boxes for
K.S.A. 2018 Supp. 38-22(b)(5) and K.S.A. 2018 Supp. 38-2269(c)(2). Presumably, then,
the district court concluded the State failed to prove the other grounds identified in the
motion to terminate. The district court also found that the proved bases of unfitness were
unlikely to change in the foreseeable future, as required by K.S.A. 2018 Supp. 38-
2269(a), and that S.T.'s best interests would be served by terminating J.T.'s parental
rights, as required by K.S.A. 2018 Supp. 38-2269(g)(1).

J.T. has appealed the termination order. The State has not filed a conditional cross-
appeal challenging the district court's denial of termination under K.S.A. 2018 Supp. 38-
2269(b)(7) and (b)(8), so we do not consider those grounds.

LEGAL ANALYSIS

We outline the legal principles guiding this appeal. A parent has a constitutionally
recognized right to a continuing relationship with his or her child. See Santosky v.
Kramer, 455 U.S. 745, 753, 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) (citing Santosky). The right entails a substantive
liberty interest shielded in the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. See Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147
L. Ed. 2d 49 (2000) (substantive liberty interest); Pierce v. Society of Sisters, 268 U.S.
510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (recognizing "the liberty of parents and
guardians to direct the upbringing and education of children under their control").
Accordingly, the State may terminate a parent's right to raise a minor child only upon
clear and convincing proof of parental unfitness. K.S.A. 2018 Supp. 38-2269(a);
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Santosky, 455 U.S. at 769-70; In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903
(2014).

After a child has been adjudicated in need of care, as happened here, a district
court may terminate parental rights "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. 2018 Supp. 38-2269(a). The statute contains a
nonexclusive list of nine conditions that singularly or in combination would amount to
unfitness. K.S.A. 2018 Supp. 38-2269(b). And the statute lists four other conditions to be
considered if a parent no longer has physical custody of a child. K.S.A. 2018 Supp. 38-
2269(c). This court has broadly equated unfitness with the "incapacity to perform
parental obligations." In re A.N.P., 23 Kan. App. 2d 686, 692, 934 P.2d 995 (1997); see
In re Adoption of A.M.M., No. 109,247, 2013 WL 5507483, at *5 (Kan. App. 2013)
(unpublished opinion); In re Baby Girl E., No. 103,740, 2010 WL 4668356, at *4 (Kan.
App. 2010) (unpublished opinion).

In assessing the unlikelihood of change in the foreseeable future under K.S.A.
2018 Supp. 38-2269(a), we gauge the permissible duration using "child time" as the
measure. As the governing statutes recognize, children experience the passage of time in
a way that makes a month or a year seem considerably longer than it would for an adult,
and that difference in perception typically tilts toward a prompt, permanent disposition.
K.S.A. 2018 Supp. 38-2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977
(2008); In re G.A.Y., No. 109,605, 2013 WL 5507639, at *1 (Kan. App. 2013)
(unpublished opinion) ("'child time'" differs from "'adult time'" in care proceedings "in
the sense that a year . . . reflects a much longer portion of a minor's life than an adult's").
The district court acknowledged the concept of child time and endeavored to apply it
here.

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When the sufficiency of the evidence supporting a district court's decision to
terminate parental rights is challenged, an appellate court will uphold the findings of
unfitness and unlikelihood of change if, after reviewing the evidence in the record in a
light most favorable to the prevailing party, they are supported by clear and convincing
evidence. Stated another way, the appellate court must be persuaded that a rational fact-
finder could have found it highly probable that the circumstances justify unfitness and
unlikelihood of change as components of the termination of parental rights. In re B.D.-Y.,
286 Kan. at 705. In evaluating the record, the appellate court does not weigh conflicting
evidence, pass on the credibility of witnesses, or determine factual questions. In re
Adoption of B.B.M., 290 Kan. 236, 244, 224 P.3d 1168 (2010); In re M.H., 50 Kan. App.
2d 1162, 1170, 337 P.3d 711 (2014). Here, we must view the evidence presented at the
hearing in a light favoring the State, as the party prevailing in the district court.

At the time of the termination hearing in January 2019, J.T. was statutorily unfit as
a result of his felony conviction and imprisonment. Not to belabor the obvious, persons
serving prison sentences cannot parent their children in any conventional sense while
they are incarcerated. They are unable to provide a home and typically cannot offer
meaningful financial or emotional support under those circumstances. See In re A.L.E.A.,
No. 116,276, 2017 WL 2617142, at *4 (Kan. App. 2017) (unpublished opinion). J.T.'s
situation was cast in that mold. The ground, however, rests on an actual conviction and
present incarceration rather than on a prediction of miscreancy—no matter how sound the
prognostication might seem. As a result of his imprisonment, J.T. also did not
communicate with S.T. for an extended time, another statutory ground supporting
unfitness. We find no error in the district court's determination that J.T. was unfit in
January 2019.

But we part ways with the district court on the unlikelihood of change, the other
component necessary to support a finding of statutory unfitness under K.S.A. 2018 Supp.
38-2269(a). Here, the district court proceeded on the assumption that J.T. would be
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released from prison in July 2019, about six months after the termination hearing. We
have no basis to reject that assumption in assessing the district court's decision. Since we
are bound by the appellate record, we do not know whether J.T. has been released or
remains in prison.

One of the assigned social workers testified that absent a termination order, J.T.
would be permitted to resume visits with S.T. upon his release from prison and to
reengage working toward other objectives necessary for family integration. The social
worker suggested that process would take at least six months following J.T.'s release. But
she agreed that given S.T.'s age, J.T. would be able to bond with the child during that
time.

We cannot say the evidence furnishes a sufficient basis for a fact-finder to
conclude J.T.'s unfitness would be unlikely to change in the foreseeable future. The two
bases on which the district court found J.T. to be unfit would have been substantially
mitigated within six months of the termination hearing assuming J.T. were released from
prison in July 2019. As we have said, the district court premised its rulings on that
assumption, and we review them in that light. Even taking account of child time and
S.T.'s young age, the district court erred in finding those conditions would persist
sufficiently long to support termination of J.T.'s fundamental parental right. The district
court erred in that conclusion, undermining the termination order.

Before turning to the matter of remedy, we mention a couple of points. First, given
our conclusion the district court missed the mark on unfitness, we need not and do not
consider the district court's finding that S.T.'s best interests were served by termination, a
ruling we would review for abuse of discretion based on a preponderance of the evidence.
See In re R.S., 50 Kan. App. 2d at 1115-16. Second, J.T.'s criminal history—at least as
portrayed in the appellate record—is troubling. As we have said, J.T. was convicted of a
felony in 2017 and, notwithstanding this termination case, managed to violate his
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probation, resulting in an extended prison term that derailed his efforts to achieve legal
and physical custody of S.T. The record also shows J.T. had three convictions in Wichita
municipal court between 2007 and 2010 for battery or domestic battery of three different
women. And he had charges filed against him in a number of other cases the district court
judicially noticed, although we can't determine the outcome in them from this record.
J.T.'s course of conduct, particularly after S.T.'s birth, indicates an unwillingness or
inability to conform and reform his criminal behavior, even though the stakes included
the loss of any continuing relationship with his son.

We now consider the appropriate remedy. As of now, S.T. remains a child in need
of care. We have not disturbed that ruling. Nor have we reversed the district court's
findings that J.T. was unfit at the time of the termination hearing because of his
incarceration and lack of communication with S.T. He may still be in prison and unfit.
We don't know.

On remand, the district court, therefore, should take the steps necessary to assess
whether S.T. continues to be in need of care, meaning J.T. is unable to presently parent
him adequately. S.T. should remain in the legal custody of the Department and in the
physical custody of his present placement while the assessment takes place. We presume
the assessment will entail some investigation by the Department or an assigned social
service agency. Depending on the circumstances, the district court may then consider
either a revised family unification plan or a new termination hearing.

Reversed and remanded for further proceedings.