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NOT DESIGNATED FOR PUBLICATION

No. 127,565

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of X.W.,

a Minor Child.

MEMORANDUM OPINION

Appeal from Mitchell District Court; KIM W. CUDNEY, judge. Submitted without oral argument. 

Opinion filed September 20, 2024. Affirmed.

Timothy J. Demel, of Harrison & Demel Law Office, LLC, of Beloit, for appellant natural father.

Mark J. Noah, county attorney, Katie J. Schroeder, guardian ad litem, of Schroeder Law Office, 

LLC, of Beloit, and James M. Johnson, for maternal grandparents, of Frasier, Johnson, & Martin, LLC, of 

Beloit, for appellees.

Before ARNOLD-BURGER, C.J., GREEN and COBLE, JJ.

PER CURIAM: In March 2024, the Mitchell County District Court terminated 

Father's parental rights to X.W. and found adoption to be in her best interests. Father now 

appeals, arguing termination of his parental rights was not in the best interests of X.W. 

because the court overlooked other permanency options. After review, we affirm the 

district court's termination of Father's parental rights.

FACTUAL AND PROCEDURAL HISTORY

Mother and Father married just before X.W. was born in 2012. Mother 

successfully petitioned for an annulment from Father just a few months later, which the 
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district court granted by default judgment The annulment decree specified Mother would 

have sole legal custody of X.W., with any visitation by Father at Mother's sole discretion. 

Father has been incarcerated for most of X.W.'s life and thus has had little to no 

contact with her and provided no financial or parental support. Shortly after X.W. was 

born, Father began serving an 18-month prison sentence, stemming from convictions for 

burglary, theft, and criminal possession of a firearm by a felon. Following that prison 

stint, Father committed more crimes—including aggravated burglary, aggravated and 

simple robbery, kidnapping, and aggravated assault—and in 2016 began serving a prison 

sentence with an expected release date of 2044. See State v. Williams, 117,256, 2018 WL

2375784 (2018).

Mother developed a serious medical condition. In January 2023, when she realized 

her health was deteriorating, Mother initiated contact with Father. Father began 

exchanging messages and phone calls with X.W. and Mother for a few months. Then in 

May 2023, Mother died. The State promptly filed a petition alleging X.W. was a child in 

need of care (CINC) because her only surviving parent could not provide parental care 

due to his incarceration. X.W. and her half-brother were placed with X.W.'s Maternal 

Grandparents. In July 2023, X.W. was adjudicated a CINC.

In September 2023, the district court held a disposition and permanency hearing, 

finding that reintegration with Father was not viable, changed the case plan to "either 

adoption or permanent custodianship," and directed the State to move for termination of

parental rights. Later, the State filed a motion requesting the court to "find the Father of 

the above-named child to be unfit and terminate parental rights, and/or to appoint a 

permanent custodian."

Father opposed the termination of his parental rights and argued termination was 

not in X.W.'s best interests. He revealed that he wished to maintain a relationship with 
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her and would consent to other permanency options that allowed him to keep his rights 

intact. The State argued termination was appropriate because Father had been 

incarcerated for most of X.W.'s life and had failed to provide parental support in any 

way. The State also asserted Father's convictions made him presumptively unfit under 

K.S.A. 38-2271(a)(2), and it further argued that subsections K.S.A. 38-2271(b)(8), (9), 

(11), and (13) applied. As for the termination decision, the State asserted termination was 

in X.W.'s best interests because "[X.W.] does not know the Father. He has never been 

there for her. If he were to pass away today, his estate would consist of nothing. No 

money, no property, [and] no precious memories." In contrast, the State asserted adoption 

was appropriate because 

"Maternal Grandparents are successfully retired and have a comfortable lifestyle. They 

are more than able to care for [X.W.] and provide for all of her needs. In addition, she has 

the benefit of many aunts, uncles and cousins. This is a family that will benefit [X.W.] 

and the family will benefit by her. She has a bright promising future with them."

The district court held the hearing on the State's motion for termination in 

February 2024, during which testimony was provided by a St. Francis Ministries (SFM) 

employee assigned to the case, Maternal Grandfather (Grandfather), Father, and a 

therapist who worked with Father in prison. The court also admitted several exhibits into 

evidence, including court records from Father's numerous criminal cases, Father's lengthy 

history of disciplinary reports from his time in prison, and copies of the messages 

exchanged between Father and X.W. before the CINC proceedings.

Testimony presented at the hearing established that Father's relationship with 

X.W. was "pretty absent." X.W. was aware of Father's incarceration and his release date, 

and she was not actively asking to see him or have contact with him. Father had only sent 

two letters to X.W. since the proceedings were initiated nine months earlier. The most 

recent letter was about two weeks before the termination hearing and it contained 
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inappropriate discussion about the relationship between Maternal Grandparents and 

Mother. X.W. indicated that she wanted to be adopted by her Maternal Grandparents.

SFM and the Kansas Department for Children and Families (DCF) supported 

terminating Father's parental rights and placing X.W. for adoption by Maternal 

Grandparents. Although it was acknowledged that X.W.'s day-to-day life would be 

similar under either adoption or a permanent custodianship, the agencies considered 

adoption preferable. X.W. would receive certain benefits—such as a medical card and an 

adoption subsidy—through adoption that would not be available under a permanent 

custodianship. These benefits would help Maternal Grandparents provide for her and 

were not available under a permanent custodianship. Besides having no contact with 

X.W. for all but a few months of her life, Father provided no financial assistance, nor has 

he ever provided any financial assistance toward X.W.'s care. They believed that Father's 

parental rights should be terminated because he could not provide for X.W. in a financial 

or parenting capacity.

Maternal Grandparents had been involved in X.W.'s life since birth, and they even 

had obtained temporary custody of X.W. at one point while Mother was in a 

rehabilitation facility. Maternal Grandparents wanted to adopt X.W. to "give [her] a 

better life than [she'd] ever had." They had the ability and financial means to take care of 

X.W. because they were both retired and lived near extended family who had offered to 

help as well.

Although Maternal Grandparents were unaware of the contents and extent of 

communication between X.W. and her Father during the last few months of Mother's life, 

X.W. had only asked about Father a few times, including once when they went to clean 

Mother's apartment. While cleaning out Mother's apartment, X.W. wanted to keep a 

picture that Father had drawn of her, so Grandfather allowed X.W. to retrieve it from her 

bedroom. X.W. revealed to Grandfather that Father was "really trying to make himself 
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better" and tried to get X.W. "to talk Mom into sending him some money so he can buy 

books to get an education." X.W. also retrieved Mother's phone in case Father tried to 

reach out.

Given Father's absence from X.W.'s life, Maternal Grandparents suggested they 

would not encourage additional contact with Father because they did not believe he had 

anything to offer "as far as nurturing her to become . . . a good person . . . with morals 

and values." They were skeptical that Father could "change" and believed that "what 

speaks the loudest is leadership by example." Yet Grandfather admitted he was unaware 

of the contents of the messages between Father and X.W. in the months preceding 

Mother's death and was surprised to learn about their existence. Those communications 

effectively ended after Mother's death. 

A licensed clinical social worker from the Lansing Correctional Facility worked 

with Father during the time he had started communicating with X.W. They discussed his 

relationship with X.W., particularly related to parenting and coparenting. Father knew 

that his parenting ability was limited because of his incarceration but he still "wanted to 

do what was in the best interests for [X.W.]," which he believed meant maintaining their 

relationship. The social worker opined that keeping Father in X.W.'s life "will be the best 

possible outcome for her." Yet she admitted she never met with X.W. or Mother.

Father was not employed in prison. He acknowledged the lengthy list of 

disciplinary actions taken against him while in prison—116 in total—which all occurred 

before he began communicating with X.W.

Father discussed the contents of some of his messages with X.W., which included 

her daily activities and school, as well as their shared musical interests. Father also 

discussed his messages with Mother, which touched on reestablishing contact with X.W. 

and being there for her, as well as acknowledging the milestones Father had missed out 
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on. Father believed that Mother's messages indicated she wanted him to have a 

relationship with X.W.

Father acknowledged he was around only "off and on" during the first three years 

of X.W.'s life because of his incarceration. Father believed X.W.'s current placement was 

safe and healthy "[t]o some degree." But he wanted the court to allow him to continue

developing a relationship with X.W. going forward. Father said he "was there from the 

beginning" and "every chance and opportunity that presented itself for me to take care of 

my parental obligations, . . . I stepped up to the plate willingly . . . and will continue to do 

so."

That said, Father explained that he did not list X.W. as a dependent on his 

financial affidavits in his criminal cases because he and Mother were not living together 

at the time those were completed. He also acknowledged his annulment from Mother 

occurred in February 2013—just six months after X.W.'s birth and while he was in prison 

on his previous cases. After his release, Father did not return to living with Mother and 

X.W. at any point. Near the end of his testimony, Father stated that he did not want to

"force" a relationship on X.W. and that he would "respect" X.W.'s wishes so long as "it 

was authentically and genuinely her words and her feelings" to not continue their 

relationship.

The district court found there was clear and convincing evidence of Father's 

unfitness and that terminating his parental rights was in the best interests of X.W. The 

court noted Father did not dispute that his incarceration was a significant factor in his 

unfitness. As for whether to terminate Father's parental rights, the court's primary concern 

was establishing permanency for X.W. The court explained that Father's love for X.W. 

and his willingness to "hang onto the thinnest thread of a connection that you have with 

her" is "admirable," but that his circumstances made him unable to provide emotional or 

physical support. Thus, the court said it would be best for X.W. to be adopted by 
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Maternal Grandparents because she deserved "to have a life of permanency. To know 

where she will be. To know that a permanent custodianship will not be undone."

Father timely appeals.

ANALYSIS

A parent has a fundamental liberty interest protected by the Fourteenth 

Amendment to the United States Constitution to make decisions regarding the care, 

custody, and control of the parent's child. Before a parent can be deprived of the right to 

the custody, care, and control of the child, the parent is entitled to due process of law. In 

re P.R., 312 Kan. 767, 778, 480 P.3d 778 (2021). But this fundamental right to parent is 

not without limits. 312 Kan. at 778. Because child welfare is a matter of state concern, 

the State can intervene to assert its interest "through state processes designed to protect 

children in need of care." In re A.A.-F., 310 Kan. 125, 146, 444 P.3d 938 (2019).

Before terminating a person's parental rights, a district court must find the State 

has proven by clear and convincing evidence that the parent is unfit and that the conduct 

or condition which renders the parent unfit is unlikely to change in the foreseeable future, 

and by a preponderance of the evidence that termination of parental rights is in the best 

interests of the child. K.S.A. 38-2269(a), (g); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ ¶ 1, 

2, 336 P.3d 903 (2014).

Here, the district court found the evidence supported a finding of Father's unfitness 

under K.S.A. 38-2269(b)(5) (conviction of a felony and imprisonment) and K.S.A. 38-

2269(b)(8) (lack of effort by the parent to adjust the parent's circumstances, conduct or 

conditions to meet the needs of the child). Father does not challenge that unfitness ruling. 

Instead, he focuses his argument on whether there was sufficient evidence to establish 
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that it was in X.W.'s best interests to have Father's parental rights terminated, rather than 

order a permanent custodianship. 

In making a best interests determination, the court must give primary 

consideration to the physical, mental, and emotional needs of the child. K.S.A. 38-

2269(g)(1). This decision rests within the sound discretion of the district court, which

makes the decision based on a preponderance of the evidence. In re R.S., 50 Kan. App. 2d 

at 1116. Consequently, we review the district court's best interests finding for an abuse of 

discretion. 50 Kan. App. 2d at 1115-16. A district court exceeds its discretion if its ruling 

stems from an error of law or fact or is "arbitrary, fanciful, or unreasonable." Northern 

Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 

(2013). Father does not point to a legal or factual error, so the question becomes whether 

no reasonable person would reach the same conclusion as the district court. In re R.S., 50 

Kan. App. 2d at 1116.

Typically, when making a termination decision, 

"the court must weigh the benefits of permanency for the children without the presence of 

their parent against the continued presence of the parent and the attendant issues created 

for the children's lives. In making such a determination, we believe the court must 

consider the nature and strength of the relationships between children and parent and the 

trauma that may be caused to the children by termination, weighing these considerations 

against a further delay in permanency for the children." In re K.R., 43 Kan. App. 2d 891, 

904, 233 P.3d 746 (2010).

As Father notes, this court has said a district court must find that "under no 

reasonable circumstances can the welfare of the child be served by continuation of the 

parent-child relationship" before making the decision to terminate parental rights. In re 

Atwood, 2 Kan. App. 2d 680, 681, 587 P.2d 1 (1978). The Kansas Supreme Court, 

however, has since clarified that a court is only required to consider alternatives to 
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termination if an interested party raised such alternatives at trial. In re Brooks, 228 Kan. 

541, 551, 618 P.2d 814 (1980). Instead, the court imposed a modified test: 

"The court should carefully consider any particular alternative remedy proposed by an 

interested party in the case, and if rejected the court should state its reasons for such 

rejection. The drastic remedy of termination of parental rights should not be utilized 

unless the court is satisfied there is no realistic alternative and so finds." 228 Kan. at 551.

So the question turns to whether the district court correctly found that termination 

of Father's parental rights was in X.W.'s best interests. See K.S.A. 38-2269(g)(1). Father 

argues the district court abused its discretion by failing to consider other permanency 

options, such as whether to appoint a permanent custodian without terminating his 

parental rights. He also argues the court's best interests finding was not consistent with 

the evidence presented and the court's other findings. We disagree.

In its written order, the district court correctly noted that Father's only involvement 

in X.W.'s life was a few months after she was born and then some consistent contact for a 

few months right before the CINC proceedings.

"The Father cannot provide emotional or physical support for [X.W.].

"It is best for [X.W.] to be with her Maternal Grandparents as a family.

"[X.W.] has a right to have a life and permanency and to know where she will be.

"[X.W.] needs to be protected from the Father who has not been there for her."

The district court expanded on these findings at the termination hearing, 

explaining the importance of X.W.'s "rights to have a life of permanency. To know where 

she will be. To know that a permanent custodianship will not be undone. That she may be 

adopted [by Maternal Grandparents]." The court further explained:
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"[X.W.] will always know who you are. And when she's an adult, she can make that 

choice. 

"But until then, she needs to be protected from the father who has himself in a 

bad situation for a long period of time in prison. 

"Who hasn't shown us the greatest support for his child. Either physically or by, 

by support, by emotion.

"And you have a long, long history of disciplinary reports. What does that tell 

her?" 

Based on these findings, the district court found termination was in X.W.'s best 

interests for two reasons: (1) to "protect[]" X.W. from Father while he is in prison; and 

(2) because an adoption would be more permanent. These findings are supported by the 

record.

To support its first finding that adoption would protect X.W. while Father was in 

prison, the district court pointed out that Father had only communicated twice with X.W. 

after this case was initiated, the last of which was inappropriate in discussing his 

relationship with Mother. The evidence revealed that in the letter, Father told T.W. how 

Maternal Grandparents had disowned Mother and were not supportive of X.W.'s birth. 

The danger of such a communication is evident, and it was not unreasonable for the 

district court to conclude that this could endanger X.W. Regardless of whether Maternal 

Grandparents were allowed to adopt X.W. or simply be permanent custodians, letters 

such as this would foment distrust and perhaps hatred of the only stable parental figures 

in X.W.'s life. The district court presented a compelling case that based on Father's 

criminal behavior, including multiple disciplinary reports while in prison, and his lack of 

any contact with X.W. during her lifetime, he would be a bad influence on X.W.—from 

which she deserved the court's protection.

The second factor relied upon—that adoption would provide more permanency to 

X.W—was also supported by the evidence and not unreasonable. 
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First, Father had never, nor could he, provide financial support to X.W. If the 

court were to bypass adoption and grant a permanent custodianship, X.W. would no 

longer be eligible for an adoption subsidy or a medical card. Although Maternal 

Grandparents had adequate financial resources to care for X.W., such benefits—when 

Father was providing no support—would enhance the family income available to care for 

X.W.

Second, the district court found that an adoption would be more permanent 

because it could not be "undone" as easily. Although Father challenges the evidentiary 

support for such a finding, a review of the statutes helps provide context for the judge's 

statement.

Kansas law only allows appointment of a permanent custodian in these 

circumstances:

"(1) With the consent and agreement of the parents and approval by the court;

"(2) after a finding of unfitness pursuant to K.S.A. 38-2269, and amendments 

thereto; or

"(3) after termination of parental rights pursuant to K.S.A. 38-2270, and 

amendments thereto." K.S.A. 38-2272(a). 

That statute further describes how the parental rights of a biological parent and a 

permanent custodian will be shared. As a baseline, "a permanent custodian shall stand in 

loco parentis and shall exercise all of the rights and responsibilities of a parent except the 

permanent custodian shall not: (1) Consent to an adoption of the child; and (2) be subject 

to court ordered child support or medical support." K.S.A. 38-2272(c). Under subsection

(d) the court has the authority to "impose limitations or conditions upon the rights and 

responsibilities of the permanent custodian," including the permanent custodian's right to 

"[d]etermine contact with the biological parent." K.S.A. 38-2272(d)(1). Subsection (e) 

further provides that "[a]bsent a judicial finding of unfitness or court-ordered limitations 
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pursuant to subsection (d), a permanent custodian may share parental responsibilities with 

a parent of the child as the permanent custodian determines is in the child's best 

interests." (Emphasis added.) K.S.A. 38-2272(e).

So the establishment of a permanent custodianship opens the door to further 

judicial action regarding the biological parent's interaction with the child. Father could 

unequivocally thwart any adoption by the Maternal Grandparents in the future. So just as 

adoption closes the door to permanent custodianship, permanent custodianship could 

close the door to a future adoption, even if that may be in X.W.'s best interest. And 

second, it allows the court to continue to have jurisdiction to decide whether Father has a 

right to continued contact with X.W. A future court could order that Father should be 

able to continue to write letters to X.W. from prison, perhaps without due regard for the 

impact such letters may have on X.W.'s relationship with the permanent custodian, her 

Maternal Grandparents. By instead ordering adoption, what has been ordered cannot be 

undone.

Father calls our attention to In re T.H., 60 Kan. App. 2d 536, 494 P.3d 851 (2021),

to support his claim that his incarceration is not enough to find that termination of his 

parental rights rather than a permanent custodianship was in X.W.'s best interests. While 

that case also involved a decision to terminate the parental rights of an incarcerated 

father, the court found an abuse of discretion on the district court's part in basing its 

termination decision solely on the father's incarceration and an "arbitrary" one-year 

timeline for permanency. 60 Kan. App. 2d at 559-62. We find Father's reliance on T.H. 

misplaced. The involvement of the father in T.H.'s life was significantly and materially 

different than Father's involvement here.

T.H.'s father was involved in T.H.'s life from birth. He shared custody with mother 

and in fact took full custody of T.H. during times in T.H.'s life when mother caused 

injury to T.H. or otherwise placed him in danger. He provided full financial support for 
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T.H. He had a deep and lifelong bond with T.H. And although he committed a crime that 

required his incarceration for five years, he set aside money to provide for T.H.'s needs 

during that time and arranged for a friend that was well known and liked by T.H. to care 

for him. There was no indication, but for T.H.'s planned incarceration period, that father 

was unfit to care for T.H. before or after his incarceration. The State repeatedly assured 

father that it would agree to a permanent custodianship with father's friend, who it had 

declared a viable placement option. Yet, after father's incarceration, and with no warning 

or rationale provided for its change of plans, it placed T.H. with his grandparents for 

adoption and abandoned any support for a permanent custodianship. We found such an 

action to be an abuse of discretion.

Here, but for the five months of Mother's illness, Father had no real contact with 

X.W. during her lifetime. He provided no financial support. There was no indication of a 

deep bond with X.W. And while T.H. would still be a child when his father was released 

from custody, here Father will not be released until X. W. is over 30 years old.

Father recognizes that he presently has no significant relationship with his child. 

Father also admits his incarceration makes it impossible for him to parent X.W. in 

person. Although he asserts a permanent custodianship was a viable option, we do not 

find the district court's decision denying that request to be unreasonable.

Affirmed.