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NOT DESIGNATED FOR PUBLICATION

No. 122,602

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of M.B. and M.B., 

Minor Children.

MEMORANDUM OPINION

Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Opinion filed December 11, 

2020. Affirmed.

Jack Turner, of Alma, for appellant natural father.

Sherri Schuck, county attorney, for appellee.

Before POWELL, P.J., GREEN and STANDRIDGE, JJ.

PER CURIAM: Father appeals the termination of his parental rights to two of his 

children: M.R.D.B. and M.J.D.B. He argues that the district court erred in finding he was 

unfit because the State never provided him with a plan setting forth goals he needed to 

achieve in order to reintegrate with his children. He also challenges the district court's 

ruling that his unfitness was unlikely to change in the foreseeable future. Finally, he 

asserts that the district court abused its discretion in terminating his parental rights. But 

evidence presented at the termination hearing established Father had been incarcerated on 

a felony conviction for much of the child in need of care (CINC) proceeding, he 

previously emotionally and physically abused the children, he failed to adjust his 

circumstances to meet the needs of his children, and he failed to maintain regular contact 

with the children for the almost four-year period they were not in his physical custody. 

And although the court is required to adopt a permanency plan, there is no requirement 
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that the permanency plan include a goal of reintegration. We find clear and convincing 

evidence supports the district court's finding of unfitness. We further find the district 

court did not abuse its discretion in deciding termination of Father's parental rights was in 

the best interests of the children. Accordingly, we affirm.

FACTS

On July 27, 2018, the State filed CINC petitions as to 10-year-old M.J.D.B. and 8-

year-old M.R.D.B. The petitions alleged that in May 2017, Mother left the children with 

the maternal grandparents in Topeka. Mother left no contact information for either parent, 

no items for the children, and no money for the grandparents to financially support the 

children. The children resided with the grandparents until May 2018, until they moved to 

Wamego to live full time with their maternal aunt and uncle because the grandparents had 

health issues and could no longer care for the children. The uncle filed a report with the 

Wamego Police Department (WPD) on June 27, 2018, because he feared for the 

children's safety should they have to go back and live with Mother. He reported to the 

WPD that Father was in jail in Shawnee County on weapons and drug-related charges, 

Mother was homeless, and both parents had been addicted to methamphetamine for 

several years. The uncle also told WPD that Mother had not financially provided for the 

children at any point while they lived with the grandparents or with the aunt and uncle.

On August 16, 2018, the State served Father at the Shawnee County Jail with a 

summons for the temporary custody hearing. On August 21, 2018, Father filed a series of 

pro se pleadings with the district court requesting court-appointed counsel, challenging 

the assertion that M.J.D.B. and M.R.D.B. were children in need of care, and requesting a 

change of venue to Shawnee County. On August 29, 2018, the district court held the 

temporary custody hearing. Neither parent appeared at the hearing but, relevant here, the 

court appointed Jack Turner to represent Father. The court ultimately found that M.J.D.B. 

and M.R.D.B. were children in need of care because Father was in custody and because 
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Mother did not have stable housing. The court directly placed the children with the aunt 

and uncle—the Department for Children and Families (DCF) was not given custody. The 

court further ordered the aunt and uncle to apply for family preservation services, and it 

also left any decision regarding visitation with the parents to the aunt and uncle. 

Although the court did not give DCF legal or physical custody of the children, it ordered 

DCF to provide family preservation services to the aunt and uncle and submit a 

permanency report to the court before the next scheduled hearing. The court then set the 

matter for adjudication, and both Father and his attorney were notified of the October 24, 

2018 hearing on that issue.

As ordered by the district court, DCF—through its contractor Kaw Valley 

Behavioral Healthcare (KVC)—submitted a permanency report to the court on 

October 15, 2018, in anticipation of the upcoming adjudication hearing. This report, 

authored by KVC Licensed Professional Counselor Paula Dodge, provided the court with 

information about the children in their current placement. The report reflected that Dodge 

physically visited the children in the current placement six times and telephonically 

visited with the children four times between September 4, 2018, and October 12, 2018. 

Dodge also visited the children at their school on one occasion during that time period. 

Based on these visits, Dodge reported that the needs of the children were being met by 

the aunt and uncle; specifically, the children were engaging in individual and family 

therapy to deal with past trauma, were doing well in school, and were attending all 

medical appointments, including a neurologist for one of the children who experienced 

ongoing seizures. Dodge also reported that she had completed a walk-through of the aunt 

and uncle's home and found no issues or concerns, that the uncle was retired and the aunt 

was employed as a registered nurse, and that the aunt and uncle successfully completed 

drug and alcohol screenings. Finally, Dodge noted that the placement family participated 

in case planning on September 20, 2018, and the permanency goal and objectives were to 

work toward renewing KanCare medical insurance for the children and having the court 

grant permanent custody of the children to the aunt and uncle. 
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Although Father got out of jail at some point in September 2018, he failed to 

personally appear for the adjudication hearing on October 24, 2018. Nevertheless, his 

attorney appeared on his behalf. At the hearing, the district court found that M.J.D.B. and 

M.R.D.B. were without the care and control necessary for their physical, mental, and 

emotional health. It also found that they had been physically or emotionally abused or 

neglected and that their parents abandoned them. As a result, the court adjudicated 

M.J.D.B. and M.R.D.B. as children in need of care. The court ordered that the children 

remain in the legal custody of the aunt and uncle and that neither parent would be 

allowed visitation with the children until the parents personally appeared in court. The 

court also ordered continued family preservation services for the children with the 

placement family. The court set the matter for disposition, and notice of the hearing was 

sent to Father at his last known address in Topeka and to Turner. 

On November 27, 2018, about a week before the scheduled dispositional hearing, 

Dodge submitted a second permanency report to the court. The report reflected that 

Dodge physically visited the children in the current placement four times and 

telephonically visited with the children six times between October 16, 2018, and 

November 19, 2018. Dodge also visited the children at their school on one occasion 

during that time period. Dodge reported that the aunt and uncle continued to meet the 

children's medical, dental, and mental health needs, and the children were showing

improvements in school. In meeting with the children individually and together, Dodge 

indicated that both reported being happy and feeling safe in their current living 

environment. Dodge concluded that she felt it would be in the children's best interests to 

maintain legal and physical custody with the aunt and uncle. 

The dispositional hearing was held on December 5, 2018. Although Father was not 

incarcerated when this hearing took place, he once again failed to personally appear. 

Turner appeared on Father's behalf. At the end of the hearing, the district court found that 

"[a]ppropriate public and private agencies have made . . . reasonable efforts to facilitate 
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the permanency plan." In specifying its basis for this finding, the court added that the 

placement family received family preservation services and counseling. It then approved 

and adopted the permanency plan submitted by KVC as the plan for permanency in the 

case: continuing legal and physical custody with the aunt and uncle. The court ordered 

the children to remain in the aunt and uncle's custody with continued family preservation 

services. Because Father had felony charges pending in Shawnee County and because 

Mother could not be located, the court also ordered that neither parent would be allowed 

visitation until further order of the court. Finally, the court set the matter for a

permanency review hearing. Father's attorney signed the order of disposition, which 

included notice of the April 10, 2019 permanency review hearing.

On December 6, 2018, the children's therapist submitted a status report on the 

ongoing mental health of the children. After setting forth a brief review of the children's 

history of trauma in the birth home and the attendant behaviors resulting from that 

trauma, the therapist reported that the children were making significant progress: 

"I have observed a significant change in the children since the start of their 

therapeutic journey. Initially, it was difficult for the children to sit still, answer questions 

without talking over one another, and display even basic impulse control. After several 

months of steady routine, behavior plans and rewards/consequence incentives, and stable 

parenting, both children have shown a dramatic improvement in functionality both at 

home and within the therapeutic environment."

In summarizing the treatment plan and progress, the therapist reported:

"Our therapy goal is to process the abuse and trauma from the past in a safe 

therapeutic environment and decrease in anger, anxiety, and acting out in their home 

environments. Objectives Include 1) learning 2-3 coping skills to utilize when feeling 

overwhelmed or experiencing intrusive memories of abuse/neglect and 2) Decrease in 

anxiety/anger by practicing deep breathing, relaxation, and age appropriate mindfulness 

training.
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"Currently, both children have displayed positive progress toward treatment 

goals and objectives."

At the end of the report, the therapist recommended that the children "continue 

with individual therapy at this time with their aunt and uncle as custodians." 

The district court held the permanency review hearing on April 10, 2019, as 

scheduled. At that time, Father was back in custody and did not personally appear for the 

hearing, but Turner appeared on Father's behalf. The court took notice of the therapist's 

report and ordered the children to remain in the legal and physical custody of the aunt and 

uncle with continued family preservation and counseling services. It further ordered that 

neither parent was allowed visitation with the children until they contacted their attorneys 

and appeared at the next hearing. The court set the matter for another permanency review 

hearing. Father's attorney signed the journal entry, which included notice of the next 

permanency review hearing scheduled for May 22, 2019. Because Father was now in 

custody, the court ordered that Father be transported for the May 22, 2019 hearing.

At some point before the permanency hearing, Father wrote a letter to the aunt 

asking about the children. In the letter, Father described how he and Mother both suffered 

from drug addiction and how they previously squatted in abandoned homes with no 

water, no heat, and very little food. It was the first time Father contacted the aunt or uncle 

since M.J.D.B. and M.R.D.B. began living with them.

On May 2, 2019, about two weeks before the next permanency hearing, Dodge 

submitted a third permanency report to the court. The report reflected that Dodge 

physically visited the children in the current placement four times and visited with the 

children by text three times between January 24, 2019, and April 24, 2019. Dodge

updated the court on the children's progress as it related to health, school, and home, 

noting rules in the home regarding homework and use of electronics. Dodge reported that 
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the children had expressed fear to their therapist about leaving their current placement 

and going back to their natural parents. Dodge also reported that she was unaware if the 

natural parents were employed and noted that Father was last known to be in jail awaiting 

trial. Dodge concluded that she felt it would be in the children's best interests to maintain 

legal and physical custody with the aunt and uncle: 

"This worker feels that [the children] continue to be in a safe and stable home 

with [aunt and uncle]. They appear to be happy about being in the home, and they will 

verbalize how they want to stay where they are. [Aunt and uncle] allow and encourage 

the children to continue having contact with their older siblings. They continue to nourish 

the positive growth of the children by providing the children with love, support, stability, 

limits and rules: along with assuring their medical, dental, vision and mental health 

needs are being met."

The permanency review hearing took place on May 22, 2019, as scheduled and 

Father was present in person and with his attorney. In its journal entry, the district court 

found the parents failed to make the progress necessary to have reintegration as a 

permanency goal. We note as an aside here that, in fact, reintegration was never the 

permanency goal in this case. The court reaffirmed this fact in its journal entry when it 

found that appropriate public or private agencies (in this case, KVC) made reasonable 

efforts to assist and support the placement family (aunt and uncle) in accomplishing the 

current permanency goal. In this case, that goal was to maintain physical and legal 

custody of the children with the aunt and uncle to meet their needs and keep them safe. 

Based on the facts presented and the court's finding that the natural parents had made no 

reasonable efforts to care for and see the children while out of their care and custody, 

despite knowing where they had been placed, the court changed the permanency plan 

from maintaining physical and legal custody of the children with the aunt and uncle to 

adoption or permanent custodianship. To that end, the court ordered the State to file a 

motion to terminate parental rights or a motion to establish a permanent custodianship 

within 30 days.
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On June 18, 2019, the State filed its motion to terminate Mother and Father's 

parental rights. The motion alleged that Mother left the children with the grandparents, 

neither parent provided any type of support for the children while in the grandparents' 

care, and neither parent communicated with the grandparents or left any personal contact 

information. After the children went to live with the aunt and uncle in May 2018, the 

motion alleged that neither parent provided the children with any support and that Father 

had only attempted to contact the aunt and uncle about the children once. Otherwise, 

neither parent communicated with the aunt or uncle. The motion further alleged that 

Father was released from custody for a brief period, but during that time, he admitted that 

he made no effort to go through his attorney to seek permission from the court to see or 

contact M.J.D.B. and M.R.D.B. and did not provide financial or other support for the 

children in any way. The motion also alleged Father previously admitted to struggling 

with substance abuse, to not having stable and permanent housing, and to having 

previous CINC cases involving M.J.D.B. and M.R.D.B. and Father's other older children. 

The State asserted that Mother and Father failed to adjust their circumstances to meet 

their children's needs due to their issues with drug abuse, lack of steady housing, and 

Father's consistent incarceration. The State asked the court to find the parents unfit and to 

terminate their parental rights.

Two weeks before the scheduled termination hearing, KVC filed its fourth 

permanency review report to the court. The report reflects that a member of the KVC 

family preservation team physically visited the children in the current placement six 

times and visited with the children by text three times between January 24, 2019, and 

June 27, 2019. This report essentially mirrors the report submitted on May 2, 2019, with 

updates where needed. After reviewing the children's progress as it related to their health, 

school, and home, the report recommended that the children remain in the legal and 

physical custody of the aunt and uncle and that KVC continue to provide family 

preservation services to maintain that placement.
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The district court held the termination hearing on July 24, 2019, as scheduled.

However, the hearing proceeded only as to Mother because there was a medical 

emergency involving one of the witnesses scheduled to testify as to why Father's parental 

rights should be terminated. After assessing the evidence, the district court found Mother 

to be unfit for three reasons: (1) her drug use rendered her incapable of caring for the 

children, (2) failure of reasonable efforts by the appropriate agency to reintegrate the 

family, and (3) her lack of effort to adjust her circumstances and failure to carry out a 

reasonable court-approved reintegration plan. The court then concluded that it was in 

M.J.D.B. and M.R.D.B.'s best interests to terminate Mother's parental rights. A 

termination hearing as to Father was scheduled for September 18, 2019.

After a series of continuances for various reasons, the district court held the 

termination trial as to Father on January 13, 2020. In support of its motion to terminate 

Father's parental rights, the State called three witnesses: (1) the maternal grandfather, (2) 

the maternal aunt, and (3) the children's therapist. The grandfather testified that he and 

the grandmother took custody of the children in 2016 or 2017. Mother provided the 

grandfather with a signed and notarized letter dated February 1, 2018, stating that she was 

giving custody of both children to the grandparents. He described Mother and Father's 

relationship as volatile and dysfunctional—when the children lived with the parents, there 

were instances of domestic violence between the parents and there had been "a lot of law 

enforcement contact" with the parents during that time. He also described how during 

that time both parents were addicted to drugs and they were squatters. The grandfather 

also testified that he and the grandmother previously took custody of M.J.D.B. and 

M.R.D.B. in 2011 during prior CINC proceedings where it was alleged that Father was 

incarcerated and Mother was on drugs. Grandfather testified that the children had lived 

with him and grandmother several times on and off again since the children were born. 

After the children came to live with the grandparents in 2016 or 2017, the grandfather 

testified that neither parent provided any kind of support for the children, Father only 
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came to visit the children once or twice, and Father never contacted the grandparents to 

discuss a plan to care or provide for the children while in the grandparents' care. 

The aunt then took the stand and testified that she and the uncle assumed custody 

of M.J.D.B. and M.R.D.B. in May 2018—this was largely due to the fact that the 

grandmother previously suffered a stroke and neither grandparent could physically care 

for the children any longer. She said that when the children first came to live with them, 

they exhibited severe behaviors. She described how M.J.D.B. would have fits of rage and 

bang his head against the wall and how both children were so attached to each other that 

they could not be separated. The aunt testified that the children told her about regularly 

witnessing their parents fighting and being violent. M.J.D.B. told his aunt and uncle 

about a time he watched Father "shoot up" Mother with a needle in Mother's leg. 

M.J.D.B. also told her about a time Father punched him in the stomach for breaking 

something and about another time where he witnessed Father beheading one of the family 

dogs and boiling its skull in a pot. Since living with the aunt and uncle, the aunt testified 

that she saw improvements in the children's behaviors—they improved in school, and 

they would talk with aunt and uncle versus acting out. She noted, however, that the 

children would regress and get extremely upset every time a court hearing drew near. She 

explained that the children told her they were afraid of Father and they feared going back 

to live with him. The aunt also testified that while the children lived with aunt and uncle, 

neither parent provided the children with any type of support and that Father only wrote 

one letter to her asking about the children.

The children's therapist testified next. She had been treating M.J.D.B. and 

M.R.D.B. since July 2018 and noted they consistently attended appointments once every 

other week or once every three weeks. When she first met with the children, the therapist 

testified that they presented with multiple severe issues, including: impulsiveness, 

anxiety, depression, emotional dysregulation or inappropriate emotional expression, 

dissociation from trauma, and an inability to be separated. She said that both children 
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disclosed several instances of physical abuse and neglect by the parents. She testified that 

M.J.D.B. also told her that Father punched him in the stomach and that several times he 

recounted the story about witnessing Father killing and mutilating one of the family dogs. 

The therapist explained that the children reported not getting fed sometimes while living 

with the parents and that their older sibling would often prepare meals for them. She also 

described the children's reports of witnessing domestic violence between the parents. 

They told her that when the parents were violent with one another, the older sibling 

would take the children and hide them downstairs with a knife so the children could 

protect themselves. They also told her that they witnessed their parents using drugs. The 

therapist testified that both children were scared of going back to live with their parents 

and that they reported they would not feel safe with the parents. These fears would 

manifest as nightmares of their parents trying to steal them away from the aunt and 

uncle's home. She testified these fears usually occurred around court dates. Since first 

seeing the children, the therapist testified she saw huge improvements in their behaviors, 

such as a decrease in their anxiety, depression, and feelings of worthlessness. She 

explained that the children were exhibiting fewer impulsive behaviors and could be 

separated. She said they were doing well in school and could follow routine and structure, 

which is something they could not do before. The therapist specifically testified that she 

believed it was not in the children's best interests to return to Father's custody because 

there would be a lot of regression. Before she would even consider suggesting visits 

between the children and Father, the therapist said Father would need individual therapy, 

there would need to be family therapy, psychological evaluations would be necessary, 

and Father would have to complete a parenting evaluation and anger management 

courses. 

After the close of the State's evidence, Father testified on his own behalf. He stated 

his belief that Mother was only taking the kids to the see their grandparents for a 

weekend—he did not know she was permanently dropping them off. He admitted that he 

did not try to see the children while they were in the grandparents' care because he 
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testified that he and the grandparents did not get along and he was afraid they would call 

the police. He confirmed the grandfather's testimony that he only saw the children twice 

while they were in the grandparents' care. Father also testified that he never went to see 

the children while they were in the aunt and uncle's custody. Father admitted that he was 

incarcerated for much of the CINC proceedings; specifically, he was in custody between 

May or June 2018 to September 2018 and again starting in March 2019. At the time of 

his termination trial, he was in prison on felony charges and was expected to be released 

in late February 2020. He testified that he was released for a short period between 

September 2018 and March 2019. During that time he had a job, but he explained he did 

not provide any financial support to the children because the aunt and uncle would not let 

him see the children. However, he then stated that he was paying child support during 

that time, but later admitted that he was actually paying child support arrearages from a 

previous CINC matter involving M.J.D.B. and M.R.D.B. Father finally admitted that he 

did not provide any additional financial support to the children. Also during that time, he 

stated he completed substance abuse treatment, but he did not provide his attorney or the 

court with proof that he had done so. Father admitted that he did not try to attend any 

parenting classes during that time. He also could not explain why he did not appear for 

the adjudication hearing or why he did not contact his attorney at that time.

Father testified that he wanted to be involved in his children's lives, but he never 

had an opportunity throughout the CINC proceedings to do so. Father claimed that no 

social worker ever contacted him and that he knew of no plans to reintegrate with 

M.J.D.B. and M.R.D.B. He testified that after he was scheduled to be released from 

prison, he planned on attending job training in Kansas City for two weeks and he was 

going to work on securing stable housing for himself and the children. Father indicated 

he knew reintegration would not happen right away but that he would do what the court 

told him to do to be a "responsible father" for his children. Father denied ever using drugs 

in front of the children, he denied abusing the children, and he denied ever killing the 

family dog. However, Father admitted that in the three to four years the children were not 
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in his custody, he only saw them twice, he did not request custody of the children, he did 

not provide any financial support for the children, and he only contacted the aunt once to 

inquire about the children. 

DCF worker Lisa Carbon then briefly testified. She specifically stated that

permanency plans with the goal of reintegration usually were only made when children 

were placed in DCF's custody. Because the children in this case were directly placed with 

the aunt and uncle, DCF did not develop a permanency plan with the goal of 

reintegration. 

After considering the evidence and arguments presented, the district court first 

determined there was clear and convincing evidence that Father was unfit to parent the 

children. In reaching this conclusion, the court explained that in the three to four years 

the children were not in his custody, he failed to adjust his circumstances to meet their 

needs. The court stated that between 2016 and June 2018, Father was not incarcerated, 

and the evidence showed that he did nothing to adjust his circumstances to take care of 

M.J.D.B. and M.R.D.B. during that time. Father was in jail from June 2018 to September 

2018, during which time he was aware of the proceedings because he filed pro se 

pleadings in August 2018 and had an attorney appointed to represent him. Yet, after he 

got out of jail, Father failed to appear for the adjudication and dispositional hearings, 

which the court explained was further evidence that Father lacked concern for the 

children and continued failing to adjust his circumstances. The court further found that 

Father failed to maintain any regular contact or communication with the children during 

the CINC proceedings and had physically or emotionally abused the children over the 

years.

The district court then ruled that Father's unfitness was unlikely to change in the 

foreseeable future. Noting that the children had not been in Father's custody for almost 

four years, the court found that although he may soon be released from prison, Father had 
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showed the court that he would not be able to parent his children without the court 

specifically telling him what to do. 

Based upon the children's therapist's testimony, the events reported by the 

children, and the significant improvements the children had made since coming into the 

care of the aunt and uncle, the district court ordered that it was in M.J.D.B. and 

M.R.D.B.'s best interests to terminate Father's parental rights. 

ANALYSIS

K.S.A. 2019 Supp. 38-2269(a) provides that a district court may terminate parental 

rights if it finds by clear and convincing evidence that the parent is unfit and that the 

parent's unfitness is unlikely to change in the foreseeable future. When reviewing these 

termination decisions, appellate courts must consider whether, after reviewing all the 

evidence in a light most favorable to the State, it is convinced that a rational fact-finder 

could have found it highly probable that the parent's rights should be terminated. 

Appellate courts do not reweigh conflicting evidence, pass on the credibility of witnesses, 

or redetermine questions of fact when reviewing these determinations. In re K.L.B., 56 

Kan. App. 2d 429, 445, 431 P.3d 883 (2018).

When a parent challenges a district court's decision not to order a reintegration 

plan, such a question raises a legal issue, which this court reviews de novo. In re P.J., 56 

Kan. App. 2d 461, 468, 430 P.3d 988 (2018).

On appeal, Father challenges the district court's ruling that he is unfit to parent 

M.J.D.B. and M.R.D.B. and that his unfitness is unlikely to change in the foreseeable 

future. As to unfitness, Father first argues that he could not be unfit because the district 

court never afforded him the opportunity to successfully reintegrate with his children as 

no permanency plan with a goal of reintegration was ever created and no reasonable 
15

efforts were made on any agency's part to rehabilitate the family. He further argues that 

there was insufficient evidence in the record to support the court's finding of unfitness. 

As to the foreseeable future, Father asserts that the district court incorrectly determined 

his conduct was unlikely to change in the foreseeable future because he was not given a 

chance to work toward reintegration once he was out of prison. 

1. Unfitness

a. Lack of reintegration plan

Father first argues that he was never provided with the opportunity to comply with 

a reintegration plan before termination. He notes that K.S.A. 2019 Supp. 38-2263(b) 

specifically requires a district court to order the development of an initial permanency 

plan once a child is subject to the court's jurisdiction under the revised Kansas Code for 

Care of Children (KCCC), K.S.A. 38-2201, et seq. He further asserts that K.S.A. 2019 

Supp. 38-2263(c) requires the permanency plan to be written and that it be created in 

consultation with the natural parents where possible. Father argues that the district court 

never created a reintegration plan as required by statute, and as a result, he never had a 

chance to successfully work toward reintegration with his children. Father's argument 

necessarily assumes that reintegration is always the goal of any permanency plan that is 

created. But as explained below, this argument is misplaced.

Putting Father's argument into context, the KCCC outlines the procedure for CINC 

cases. First, the State files a petition alleging that a child is in need of care based on one 

or more statutory circumstances outlined in K.S.A. 2019 Supp. 38-2202(d). Once a CINC 

petition has been filed, a district court usually holds a temporary custody hearing to 

determine appropriate temporary placement for the child. See K.S.A. 2019 Supp. 38-

2235(a); K.S.A. 2019 Supp. 38-2243. If a child has been taken into police protective 

custody, the court must hold a temporary custody hearing within 72 hours of the child 
16

being placed in police protective custody. K.S.A. 2019 Supp. 38-2235(a)(2); K.S.A. 2019 

Supp. 38-2243(b). Where, as here, the child has not been taken into police protective 

custody, the court need only to set the matter for such a hearing within 30 days of the 

petition being filed. K.S.A. 2019 Supp. 38-2235(a)(1). Whenever a district court 

determines that a temporary custody order is warranted, it may decide to place the child 

with a parent, a relative, any unlicensed person with close emotional ties to the child, a 

youth residential or shelter facility, or the DCF Secretary. K.S.A. 2019 Supp. 38-

2243(g)(1).

The district court then holds an adjudication hearing to determine whether the 

State has presented clear and convincing evidence that the child is a child in need of care.

If the child is a child in need of care, the court must enter an order adjudicating the child 

as such. If not, the court must dismiss the petition. Any adjudication order must be 

entered within 60 days of the filing of the CINC petition, subject to limited exceptions. 

K.S.A. 2019 Supp. 38-2251.

In conjunction with or within 30 days following adjudication, the district court 

usually holds a dispositional hearing. K.S.A. 2019 Supp. 38-2253(b). Once a child has 

been adjudicated a child in need of care, the court convenes this hearing to consider 

various permanent living arrangements for the child. K.S.A. 2019 Supp. 38-2253(a). 

There is more complexity to the statutory scheme governing dispositional orders than the 

other orders discussed so far. The timing for dispositional orders is dictated by K.S.A.

2019 Supp. 38-2253(b), which states "[a]n order of disposition may be entered at the time 

of the adjudication if notice has been provided . . . but shall be entered within 30 days 

following adjudication, unless delayed for good cause shown." The substance of the 

dispositional hearing and attendant order are addressed by K.S.A. 2019 Supp. 38-2253, 

which states:
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"(a) At a dispositional hearing, the court shall receive testimony and other 

relevant information with regard to the safety and well being of the child and may enter 

orders regarding:

(1) Case planning which sets forth the responsibilities and timelines necessary to 

achieve permanency for the child; and

(2) custody of the child."

Under K.S.A. 2019 Supp. 38-2255(b) and (c), there are two roads that may be 

taken regarding custody—either the district court places the child in the parent's custody 

or it removes the child from parental custody. If the latter, the court must make certain 

findings. For example, it must find probable cause that certain conditions exist, such as 

"allowing the child to remain in [the] home is contrary to the welfare of the child." 

K.S.A. 2019 Supp. 38-2255(c)(1)(B). And if the court makes the required findings and 

removes the child from the parent's custody, it may award custody to: (1) a child's 

relative, (2) a person with whom the child has close emotional ties, (3) any other suitable 

person, (4) a shelter facility, (5) a youth residential facility, or (6) the Secretary. This 

custody order "shall continue until further order of the court." K.S.A. 2019 Supp. 38-

2255(d). In addition, if the person to whom custody is awarded is not a parent, a 

permanency plan that conforms to the requirements of K.S.A. 2019 Supp. 38-2264 

(permanency hearing: purpose, procedure, time for hearing, and authorized orders) must 

be prepared. K.S.A.2019 Supp. 38-2255(e).

Where, as here, a district court awards custody to an out-of-home relative or 

placement, K.S.A. 2019 Supp. 38-2255(e) provides that a permanency plan shall be 

prepared. If that permanency plan is presented at the dispositional hearing, the court may 

determine if reintegration is a viable option or not. K.S.A. 2019 Supp. 38-2255(e). 

However, K.S.A. 2019 Supp. 38-2257 provides: "If a child is placed outside the child's 

home at the dispositional hearing and no permanency plan is made a part of the record of 

the hearing, a written permanency plan shall be prepared pursuant to K.S.A. 2019 Supp.

38-2263, and amendments thereto." If the court determines at the dispositional hearing 
18

that reintegration is not a viable alternative, it must initiate proceedings to terminate 

parental rights as outlined in K.S.A. 2019 Supp. 38-2255(f).

If the district court does not address permanency at the dispositional hearing, the 

matter usually proceeds to a permanency hearing. The purpose of a permanency hearing 

is to determine progress toward accomplishing the permanency plan. K.S.A. 2019 Supp. 

38-2264(a). The court generally decides at this hearing whether reintegration is viable or 

not. K.S.A. 2019 Supp. 38-2264(b). This hearing must be held within 12 months of the 

date the court authorized the child's removal from the home. K.S.A. 2019 Supp. 38-

2264(f). Where, as here, the court determines that reintegration is no longer a viable 

option, it must initiate proceedings to terminate parental rights as outlined in K.S.A. 2019 

Supp. 38-2264(i).

In this case, the district court held a dispositional hearing on December 5, 2018. 

Before the dispositional hearing was held, KVC filed with the court a family preservation 

court report, expressly stating that the preservation (or permanency) goal was to ensure 

the safety of the children by keeping them placed with their aunt and uncle. To further 

that goal, KVC recommended that the children continue in the legal and physical custody 

of their aunt and uncle. Although Father was not incarcerated when this hearing took 

place, he failed to personally appear. Turner appeared on Father's behalf. At the end of 

the hearing, the district court found that "[a]ppropriate public and private agencies have 

made . . . reasonable efforts to facilitate the permanency plan." In specifying its basis for 

this finding, the court added that the placement family received family preservation 

services and counseling. It then approved and adopted the permanency plan submitted by 

KVC as the plan for permanency in the case: continuing legal and physical custody with 

the aunt and uncle. 

Based on our review of the record, KVC properly drafted a permanency plan for 

the children and the district court later adopted that plan in its order of disposition. So 
19

while the KCCC may require development of a general permanency plan for a child that 

is in need of care, it does not require the court to order the development of a permanency 

plan with a specific goal of reintegration as Father argues on appeal. Father cites to no 

legal authority showing otherwise. As previous panels of this court have found, a district 

court is not necessarily required to provide a parent with an opportunity to reintegrate 

with his or her children or to develop a reintegration plan before termination. See, e.g., In 

re P.J., 56 Kan. App. 2d at 468 (recognizing that development of reintegration plan 

before termination is not compulsory); In re J.G., 12 Kan. App. 2d 44, 51, 734 P.2d 1195

(1987), overruled on other grounds by In re B.D.-Y., 286 Kan. 686, 702-03, 187 P.3d 594 

(2008) (concluding that "development of a reintegration plan prior to termination of 

parental rights is not mandatory" and finding that district court's failure to order a 

reintegration plan was not error); In re K.M., No. 111,109, 2014 WL 3907119, at *6-8 

(Kan. App. 2014) (unpublished opinion) (recognizing that because district court 

determined reintegration was not viable option, it was not required to order reintegration 

plan for Father to complete); In re R.M.C.H., No. 104,249, 2011 WL 1344774, at *5 

(Kan. App. 2011) (unpublished opinion) (finding that because district court determined 

that reintegration was not viable option, it was not required to develop reintegration plan 

before terminating parental rights). Because the district court was not required to develop 

a reintegration plan as to Father, this basis for challenging the district court's finding of 

unfitness has no merit. 

b. Insufficiency of the evidence 

Because the district court was not required to order a reintegration plan in this 

case, the analysis turns to whether clear and convincing evidence supported the district 

court's finding of unfitness. K.S.A. 2019 Supp. 38-2269(a) provides that a district court 

may terminate parental rights after a child has been adjudicated a child in need of care.

The statute lists nonexclusive factors the court shall consider in making an unfitness 

determination. K.S.A. 2019 Supp. 38-2269(b). The court must also consider a separate 
20

list of nonexclusive factors when a child is not in the parent's physical custody. K.S.A. 

2019 Supp. 38-2269(c). Any one of the factors in K.S.A. 2019 Supp. 38-2269(b) or (c) 

may, but do not necessarily, establish grounds for termination of parental rights. K.S.A. 

2019 Supp. 38-2269(f).

In this case, the district court relied on three specific factors in finding Father 

unfit: (1) There was clear and convincing evidence that Father previously physically and 

emotionally abused and neglected the children as outlined in K.S.A. 2019 Supp. 38-

2269(b)(4); (2) there was clear and convincing evidence that Father had been convicted 

of a felony and incarcerated for that crime as provide in K.S.A. 2019 Supp. 38-

2269(b)(5); and (3) there was clear and convincing evidence that Father failed to adjust 

his circumstances to meet the needs of his children as noted in K.S.A. 2019 Supp. 38-

2269(b)(8). 

On appeal, Father does not specifically challenge any of these findings. Rather, he 

focuses his argument on a factor that the district court did not rely on in making the 

unfitness determination: K.S.A. 2019 Supp. 38-2269(c)(3). K.S.A. 2019 Supp. 38-

2269(c)(3) provides that a parent can be declared unfit if the child has not been in that 

parent's physical custody and that parent fails to carry out a reasonable court-approved 

reintegration plan. This argument ties back into Father's original argument that the district 

court was required to order a reintegration plan for Father to follow. However, because 

the district court was not required to order a reintegration plan as to Father and because it 

did not rely on this factor in declaring Father unfit, we may disregard Father's analysis as 

to this point.

But even if we analyze the factors the district court actually relied upon, there is 

sufficient evidence supporting its ruling that Father was unfit to parent M.J.D.B. and 

M.R.D.B. pursuant to K.S.A. 2019 Supp. 38-2269(b)(4), (b)(5), and (b)(8). 
21

(1) K.S.A. 2019 Supp. 38-2269(b)(4)

A district court may find a parent unfit if there is clear and convincing evidence 

that a parent physically, mentally, emotionally, or sexually abused or neglected their 

child. K.S.A. 2019 Supp. 38-2269(b)(4). Here, there is clear and convincing evidence to 

support this finding.

At the termination trial, two of the State's witnesses testified in detail about how 

the children reported witnessing domestic violence between their parents and how they 

were the targets of physical and emotional abuse and neglect. The aunt described 

instances where the children told her they regularly witnessed Mother and Father fighting 

and being violent with one another. M.J.D.B. reported to his aunt and uncle about a time 

he saw Father "shoot up" Mother with a needle in Mother's leg. He also recounted 

disturbing details to his aunt about how Father once punched him in the stomach and how 

Father beheaded one of the family dogs and boiled its skull in a pot.

The children's therapist reinforced the aunt's testimony. She also described reports 

from M.J.D.B. about how Father punched him in the stomach and killed and mutilated 

one of the family dogs. The therapist testified that M.J.D.B. recounted the story about the 

dog several times over the course of his treatment with her. The therapist also explained 

how both parents neglected the children by failing to feed them, and their older sibling 

would have to prepare meals for them. She testified that both children told her this older 

sibling would protect the children when Mother and Father fought by hiding them in the 

basement and giving them a knife to protect themselves. Both children also told her that 

they witnessed their parents using drugs when they lived with Mother and Father. 

Both the aunt and the therapist explained that M.J.D.B. and M.R.D.B. consistently 

reported they were afraid of going back to live with their parents and that they would not 

feel safe with Mother and Father. Any time a court hearing drew near, the children would 
22

regress and become extremely upset because of their fears about returning to their 

parents' custody.

At the termination proceedings, Father specifically refuted these allegations. On 

appeal, however, Father does not contest the court's finding under K.S.A. 2019 Supp. 38-

2269(b)(4) that he physically, mentally, emotionally, or sexually abused or neglected his 

children. Because this court does not reweigh the evidence or witness testimony and 

because the record supports a finding that both children were physically and emotionally 

abused and neglected, there is clear and convincing evidence to support the district 

court's finding based on K.S.A. 2019 Supp. 38-2269(b)(4).

(2) K.S.A. 2019 Supp. 38-2269(b)(5)

A district court may find a parent unfit if that parent was convicted of a felony and 

imprisoned. K.S.A. 2019 Supp. 38-2269(b)(5). Here, there is clear and convincing 

evidence to support this finding.

The CINC proceeding was initiated in late July 2018. By the time the district court 

held the termination hearing as to Father in January 2020, Father had been incarcerated 

twice. The first time he was in the Shawnee County Jail between June 2018 and 

September 2018. The second time he was in prison for a criminal possession of a firearm 

conviction, and he served that sentence from March 2019 to February 2020. Father did 

not dispute these facts at the termination hearing. Between July 2018 (when the case was 

initiated) and February 2020 (when Father was released), Father was in custody for an 

aggregate total of approximately 14 months.

Significantly, as of the date of the termination hearing, Father still had one month 

remaining on his prison sentence, and he also admitted that he would be on postrelease 

supervision following his release. He was unable to testify about any concrete plan 
23

following his release to secure stable employment, obtain stable housing, or generally 

articulate any goals to become a better, more responsible parent for his children. Rather, 

he testified that he would do whatever the district court told him to do to reintegrate with 

his children. Because the record supports a finding that Father was incarcerated on felony 

charges during the CINC proceeding and before his rights were terminated, there is clear 

and convincing evidence to support the district court's finding based on K.S.A. 2019 

Supp. 38-2269(b)(5).

(3) K.S.A. 2019 Supp. 38-2269(b)(8)

A district court may find a parent unfit if there is clear and convincing evidence 

that the parent has failed to adjust his or her circumstances, conduct, or conditions to 

meet the needs of the children. K.S.A. 2019 Supp. 38-2269(b)(8). Here, the evidence 

supports this finding.

The evidence presented at the termination hearing overwhelmingly established 

that Father consistently failed to adjust his circumstances and conduct over the course of 

the CINC proceeding. As noted above, he was incarcerated for a majority of the yearand-a-half long proceeding. During the six months he was out of custody, he failed to 

communicate with his attorney about the case, and he failed to appear at the October 

2018 adjudication hearing and the December 2018 dispositional hearing. During that 

time, even though Father testified he obtained employment, he admitted that he did not 

provide the children with any financial support. He also admitted that he never attempted 

to meet the district court's threshold requirements that would enable him to visit the 

children while he was out of custody. Throughout the entire proceeding, Father only 

communicated with the aunt about the children once. Father never attempted to 

communicate or stay in touch with the children.
24

Even before the CINC case was filed, Father made no attempt to be involved in his 

children's lives. M.J.D.B. and M.R.D.B. spent three to four years living with either their 

grandparents or their aunt and uncle. In those three to four years, Father only visited the 

children twice despite knowing where they were located. Aside from the letter he sent to 

the aunt inquiring about the children, there was no other evidence that Father attempted 

to contact the relatives or the children directly or indirectly during those three to four 

years. He never provided the relative placements with any type of support during that 

time or with any contact information.

The evidence further showed that Father had been in and out of custody since 

2007. He had been involved in two previous CINC matters—one that also involved 

M.J.D.B. and M.R.D.B. He also admitted that when the children lived with the parents, 

both parents were addicted to drugs and without stable housing. Furthermore, when 

confronted by the State about his plans to care for the children upon his release from 

prison in February 2020, Father was unable to articulate any specific plan to do so. He 

simply testified that he would do whatever the court told him to do.

Because the record supports a finding that Father failed to adjust his conduct and 

circumstances to meet the children's needs, there is clear and convincing evidence to 

support the district court's finding based on K.S.A. 2019 Supp. 38-2269(b)(8).

2. Foreseeable future

Father next argues that the district court erred in finding that his unfitness was 

unlikely to change in the foreseeable future. He specifically asserts that he would have 

been able to reintegrate with his children following his release from prison. However, he 

recognizes that he would have "need[ed] time to get on his feet" once he was out of 

custody. Despite that, he argues he would have been able to follow all reasonable plans 

and tasks required of him to reintegrate with his children.
25

Clear and convincing evidence must also support a district court's finding that the 

conduct or condition rendering a parent unfit is unlikely to change in the foreseeable 

future. This court examines the term "foreseeable future" from the perspective of a child. 

Children and adults have different perceptions of time, and a child has the right to 

permanency within a time frame that is reasonable to them. See K.S.A. 2019 Supp. 38-

2201(b)(4). A district court may look to a parent's past conduct as an indicator of future 

behavior. In re K.L.B., 56 Kan. App. 2d at 446-47. 

The evidence presented at the termination hearing established that Father's 

unfitness was unlikely to change in the foreseeable future. In first analyzing Father's past 

conduct, the evidence established that in the three to four years the children were in 

relatives' custody, Father failed to maintain regular contact with the children or the 

placements, and he failed to visit with the children. During that time, Father wrote the 

aunt only once and saw M.J.D.B. and M.R.D.B. twice. He also never provided any type 

of financial support for the children. Furthermore, even when Father had the opportunity 

to participate in the CINC proceedings, he failed to do so. While he was out of custody 

between September 2018 and March 2019, he did not communicate with his attorney and 

he did not appear for key hearings. Father only appeared for the permanency hearing in 

May 2019 and the two termination hearings in July 2019 and January 2020, respectively. 

This lack of participation in the children's lives and in the CINC proceedings is certainly 

an indicator that Father would not adjust his unfit conduct in the future.

Furthermore, the State presented clear and convincing evidence that even if Father 

was released from prison and could work toward reintegration, it would take a 

considerable amount of time for him to do so. The children had already been out of his 

custody for three to four years preceding termination. While it is true that Father would 

be released from prison only six weeks after his termination hearing, he could not provide 

any concrete plan to obtain stable employment and housing. His testimony showed that 

he could not act upon his own initiative to become a better, more responsible parent for 
26

M.J.D.B. and M.R.D.B. In fact, he specifically testified that the court had to tell him what 

he needed to do to get his children back—a remark that the district court relied on in 

making its finding. Furthermore, the children's therapist testified that Father would need 

to attend several parenting classes, anger management classes, regular individual therapy 

sessions, and consistent family therapy sessions before she believed it would be a good 

idea for the children to have visitation with Father. Simply put, by January 2020, the 

CINC proceedings had already been going on for 18 months, and there was no indication 

as to how long such a process would take to merely establish a visitation schedule 

between Father and the children upon Father's release from prison. 

Given the length of time the children had been out of Father's custody, the length 

of time of the CINC proceedings, and the unknown variables following Father's release 

from prison, the district court correctly determined based on the evidence that Father's 

unfitness was unlikely to change in the foreseeable future. As such, the district court did 

not err in determining that Father was unfit. 

3. Best interests

Father argues the district court abused its discretion in finding termination of 

parental rights was in the best interests of the children because there was no direct 

evidence about the emotional trauma the children would suffer should Father's rights be 

terminated.

Upon making a finding of unfitness of the parent, "the court shall consider 

whether termination of parental rights as requested in the petition or motion is in the best 

interests of the child." K.S.A. 2019 Supp. 38-2269(g)(1). In making such a decision, the 

district court shall give primary consideration to the physical, mental, and emotional 

needs of the child. K.S.A. 2019 Supp. 38-2269(g)(1). A decision about the best interests 

of a child rests within the district court's sound discretion. As such, the appellate courts 
27

review these determinations for an abuse of discretion. In re R.S., 50 Kan. App. 2d 1105, 

1115-16, 336 P.3d 903 (2014). A judicial action constitutes an abuse of discretion if: (1) 

no reasonable person would take the view adopted by the trial court, (2) it is based on an 

error of law, or (3) it is based on an error of fact. In re M.S., 56 Kan. App. 2d 1247, 1255, 

447 P.3d 994 (2019).

Here, there was considerable evidence establishing that the district court 

considered M.J.D.B. and M.R.D.B.'s best interests—i.e., their physical, mental, and 

emotional needs—before terminating Father's parental rights. In fact, the court 

specifically pointed to three things supporting its ruling: (1) the children's progress in 

therapy, (2) the children's numerous reports of abuse and neglect by the parents, and (3) 

the children's significant behavioral and emotional improvements while in their aunt and 

uncle's custody. Given the weight of the evidence presented at the termination hearing, 

the clear progress the children made in therapy and while living with their aunt and uncle, 

and the fact that the children reported several times that they were scared of Father and of 

returning to live with him, a reasonable person could have also concluded that it was in 

the children's best interests to terminate Father's parental rights. And as Father does not 

allege on appeal any factual or legal mistakes by the district court, the court did not abuse 

its discretion in terminating his parental rights.

Affirmed.