Beyond the Release Date: Kansas Supreme Court Holds “Foreseeable Future” Extends Past Incarceration for Parental Unfitness Under K.S.A. 38-2269(b)(5)

Introduction

In In re K.W.D. and E.L.D. (Nos. 126,718, 126,719), the Supreme Court of Kansas affirmed the termination of a father’s parental rights to his two minor children following a Child in Need of Care (CINC) adjudication. The decision squarely addresses whether a felony conviction and imprisonment can, standing alone, support a parental unfitness finding and, crucially, what “foreseeable future” means under K.S.A. 38-2269(a) when the parent’s incarceration has a defined end date.

The father argued the district court improperly relied “on incarceration alone” and failed to account for his imminent release and efforts achievable in prison. The Court of Appeals affirmed, and the Kansas Supreme Court granted expedited review. Writing for the Court, Justice Standridge affirmed the lower courts, holding that imprisonment can satisfy K.S.A. 38-2269(b)(5) where, as here, it renders a parent unable to care properly for children and that the “foreseeable future” analysis is child-centered and extends beyond the parent’s release date to the real-world timeframe necessary to resume proper parenting.

The case also includes a pointed dissent by Justice Stegall, warning that the majority’s approach creates a new, judge-made standard that risks compounding systemic disadvantages for incarcerated parents by effectively requiring them to demonstrate post-release stability before unfitness can be deemed likely to change in the “foreseeable future.”

Summary of the Opinion

The Court reaffirms that natural parents have a fundamental constitutional right to parent, but the State may terminate upon clear and convincing evidence of unfitness unlikely to change in the foreseeable future. (Santosky v. Kramer; K.S.A. 38-2269.)
Imprisonment for a felony is an independent statutory “condition of unfitness” if it renders a parent unable to care properly for a child. K.S.A. 38-2269(b)(5).
“Foreseeable future” is evaluated from the child’s perspective and, critically, does not end with the parent’s release date; courts must consider the additional time to secure housing, employment, treatment, and rebuild the parent-child relationship.
Applying that framework, the Court found clear and convincing evidence that father’s incarceration rendered him unable to care for the children and that this condition was unlikely to change in the foreseeable future.
Because any one statutory factor can suffice, the Court did not reach alternative grounds (failure of reasonable efforts and failure to carry out the case plan).
On best interests, the Court (reviewing for abuse of discretion) upheld termination, emphasizing the children’s pressing need for permanency and the availability of a relative placement keeping siblings together.
The Court acknowledged but did not correct a discrepancy in the written termination order adding unfitness factors not supported by the hearing record, because the issue was not preserved and the oral and written orders aligned on the dispositive grounds.

Factual and Procedural Background

The father began serving a five-year sentence in January 2020 for attempted aggravated robbery and domestic violence. By mid-2021, the mother’s methamphetamine use, homelessness, and failure to engage in a safety plan led to CINC proceedings and State custody for K.D. (born 2017) and E.D. (born 2018). The court ordered a reintegration case plan and facilitated telephonic/video contact with the father, who had intermittent contact initially but none after April 2022 due to prison scheduling constraints and the children’s routines and services. The children exhibited significant behavioral and emotional needs, including therapy, special education services, and bathroom training issues attributed to trauma, and they experienced instability across foster placements.

After 16 months without progress toward reintegration, the district court terminated both parents’ rights, finding father unfit under: K.S.A. 38-2269(b)(5) (felony conviction and imprisonment), (b)(7) (failure of reasonable agency efforts), and (c)(3) (failure to carry out a reasonable reintegration plan). The court also found unfitness unlikely to change in the foreseeable future and termination in the children’s best interests due to their need for permanency and the availability of a relative placement with the maternal grandmother. The Court of Appeals affirmed on (b)(5), characterizing support for (b)(7) and (c)(3) as weak. The Kansas Supreme Court affirmed.

Analysis

1) Precedents and Authorities Cited

Santosky v. Kramer, 455 U.S. 745 (1982) – Establishes clear and convincing evidence standard for parental termination proceedings and distinguishes the adjudicative stage from dispositional “best interests” determinations.
In re Adoption of C.L., 308 Kan. 1268 (2018) – Reaffirms the fundamental constitutional right of natural parents to raise their children under both the United States and Kansas Constitutions.
In re B.D.-Y., 286 Kan. 686 (2008) – Clarifies appellate review: deferential to fact-finding; view evidence in light most favorable to the State; ask whether a rational fact-finder could find unfitness highly probable (clear and convincing).
In re Adoption of Baby Girl G., 311 Kan. 798 (2020) – Appellate courts do not reweigh evidence or assess credibility on appeal.
K.S.A. 38-2269(a), (b), (c), (f), (g)(1) – Statutory framework for unfitness, nonexclusive factors (including incarceration), foreseeability, and best interests, including the rule that any one factor “may” suffice.
K.S.A. 38-2201(b)(4) – Directs child-centered timing: children experience time differently and are entitled to timely permanency; proceedings should be resolved without unnecessary delay.
In re D.G., 319 Kan. 446 (2024) – Confirms “foreseeable future” is child-centered and that courts may look to past conduct as a predictor of future behavior.
In re T.H., 60 Kan. App. 2d 536, 494 P.3d 851 (2021) – Illustrates that imprisonment does not invariably equal unfitness if the incarcerated parent maintains meaningful contact, support, and designated caregivers, and completes available tasks.
In re R.S., 50 Kan. App. 2d 1105 (2014) – Best interests findings do not require granular factual findings.
In re Spradling, 315 Kan. 552 (2022) – Defines abuse of discretion standard for dispositional decisions.
In re M.S. (cited by panel) – Past behavior can predict future conduct; children’s perspective on time controls.
In re K.O. (unpublished) – Contrasts where incarceration is comparatively short and the parent has a well-established bond; such facts may defeat a foreseeability finding premised on incarceration alone.

These authorities collectively ground the Court’s core holdings: (i) incarceration is a statutorily enumerated condition of unfitness, (ii) any one factor can justify termination if it renders a parent unable to care properly for the child, (iii) “foreseeable future” is child-centered, and (iv) best interests are assessed with primary attention to the child’s physical, mental, and emotional health.

2) The Court’s Legal Reasoning

a) Unfitness under K.S.A. 38-2269(b)(5): Incarceration as an Independent Condition

The Court emphasized that a felony conviction and imprisonment constitute a distinct statutory ground that may render a parent unable to care properly for a child. But it expressly rejected any per se rule: imprisonment “does not extinguish the ability to parent.” The opinion gives a practical set of indicators that can attenuate unfitness during incarceration—maintaining regular meaningful contact, arranging a stable caregiver, sending financial support, and engaging in case planning. As an example of how incarceration may be insufficient to establish unfitness, the Court cited In re T.H., where the incarcerated parent did those things.

On the facts here, the father did not achieve those alternative forms of parenting. His contact ceased months before the termination hearing due to scheduling constraints; there was no consistent financial support through formal channels; and no designated stable caregiver. Meanwhile, the children’s trauma-related needs were acute and destabilizing. The evidence thus clearly and convincingly supported that incarceration rendered him presently unable to care properly for the children.

b) “Foreseeable Future” Extends Beyond the Release Date

The opinion’s most consequential clarification is its construction of “foreseeable future.” The Court held that the analysis “does not end merely because the underlying condition—such as imprisonment—has a defined endpoint.” The statutory focus is forward-looking and child-centered: not only “when” a parent will be physically available, but “whether” the parent will be able to care properly for the child in a timeframe that is reasonable for the child. In concrete terms, courts may assess the realistic post-release runway needed to:

Secure stable housing and employment;
Complete treatment or assessments (e.g., mental health, substance use) and follow recommendations;
Rebuild the parent-child relationship through consistent visitation and involvement; and
Demonstrate sustained compliance with case plan tasks to ensure safe parenting capacity.

Applying this to the record, the Court noted: the children had already been in State custody for 16 months; father’s projected earliest release was still many months away at the time of the hearing; and even after release he would need additional time to complete tasks, find housing, avoid problematic placements (notably, the paternal grandmother had credible abuse history), and reestablish bonds with young children who had spent much of their lives without him. Thus, the unfitness condition was unlikely to change within a timeframe reasonable to these children.

c) Any One Factor Suffices; No Need to Reach Other Grounds

Because K.S.A. 38-2269(f) allows termination based on any one factor if it renders a parent unable to provide proper care, the Court declined to reach additional findings under (b)(7) (failure of reasonable efforts) and (c)(3) (failure to follow a reasonable reintegration plan). Practically, this signals that well-developed records on a single statutory factor can sustain termination if the foreseeability prong is satisfied.

d) Best Interests: Primary Focus on the Children’s Health and Permanency

The Court reaffirmed that once unfitness is established, the inquiry shifts from “can the parent’s rights be terminated?” to “should they be terminated, given the child’s needs?” Reviewing for abuse of discretion, the Court upheld termination. It credited the trial court’s findings that the children exhibited severe behavioral and developmental needs, suffered instability across placements, and had a viable path to permanency with a maternal grandmother who kept siblings together and had actively pursued ICPC approval and contact. The Court also noted that, while Kansas appellate courts have commonly referenced a preponderance standard for this stage, the Court has not formally adopted it; here, the district court expressly used the higher “clear and convincing” framing.

3) The Dissent: A Warning Against Judicial Expansion

Justice Stegall dissented, arguing the majority reshapes K.S.A. 38-2269(a) by allowing courts to look beyond the presently existing condition (incarceration) and its foreseeable end to require proof of post-release stability as part of the unfitness/foreseeability inquiry. In his view:

Because father’s incarceration had a known end date (and in fact ended within roughly 16 months of the termination order), the condition was “likely to change in the foreseeable future,” so incarceration alone could not sustain unfitness through the foreseeability prong.
The majority’s extension effectively forces parents to prove that a host of post-release stability factors will be in place within the child’s timeframe, creating a moving target that disproportionately harms incarcerated, poor, and minority parents.
Rigid adherence to the statutory text is the necessary check against subjective, bias-prone decision making in this sensitive area of constitutional rights.

The dissent thus emphasizes due process constraints and cautions against transforming the foreseeability prong into a predictive, multi-factor assessment of general parenting “worthiness” after the original condition ends.

4) Practical Impact and Implications

a) Doctrinal Significance

Clarification of K.S.A. 38-2269(b)(5): Imprisonment can independently establish unfitness where it renders the parent unable to care properly, but it is not invariably dispositive. Courts will examine whether the parent has mitigated incarceration’s effects by sustained engagement, support, and planning.
Foreseeable Future Redefined in Practice: Courts may consider the post-release runway—housing, employment, services, and rebuilding the relationship—when deciding if unfitness is “unlikely to change” within a child-reasonable timeframe. This extends the analysis beyond the release date.
Any One Factor May Suffice: Agencies may rely on a robust record under a single statutory ground rather than stacking multiple marginal factors.
Best Interests Review: Abuse of discretion remains the operative standard, with primary attention to the child’s physical, mental, and emotional health and the availability of stable permanency (especially relative placements keeping siblings together).

b) For Practitioners Representing Incarcerated Parents

Build an “alternative parenting” record even during incarceration:
- Maintain regular, meaningful contact (letters, approved calls, video where available); document every effort and obstacle.
- Designate a trusted, safe caregiver and collaborate with agencies to vet and support that placement.
- Provide financial support through verifiable channels, even modestly.
- Complete all available classes/assessments in custody; secure documentation.
Offer a concrete post-release plan: housing away from unsafe relatives, employment prospects, service follow-through, visitation schedule, and transportation.
Create a record showing why reunification can occur within a timeframe reasonable to the child once released.
Object to written orders that include unannounced unfitness factors; preserve discrepancies between oral and written rulings for appeal.

c) For Agencies and Guardians ad Litem

Document the child-centered timeline: how long the child has been in care, current service needs, placement stability, and the child’s progress or regression.
Develop evidence of the realistic post-release timeline for safe reunification, including needed services and the parent’s ability to engage promptly.
Pursue relative placements early and preserve sibling groups where feasible; these facts featured prominently in the best-interests analysis.

d) Procedural Practice Pointer

The Court noted a discrepancy where the written order listed unfitness factors (drug use; abuse/neglect) not supported by the hearing as to the father, yet the issue was not raised on appeal and the order otherwise matched the oral ruling’s dispositive grounds. The Court declined to correct it sua sponte. Counsel should vigilantly review and, if necessary, challenge written orders that deviate from oral findings, to avoid waiver.

Complex Concepts Simplified

Clear and Convincing Evidence: A high evidentiary standard requiring that facts are highly probable—not mere preponderance, but less than beyond a reasonable doubt.
Unfitness (K.S.A. 38-2269): The parent’s conduct or condition renders them unable to care properly for the child; the statute lists nonexclusive factors (e.g., incarceration).
Foreseeable Future: Assessed from the child’s vantage point. This decision clarifies that courts may consider not just the end of incarceration, but the time needed to become a safe, capable caregiver after release.
Any One Factor May Suffice: A single factor, like imprisonment, can support termination if it actually renders the parent unable to care properly, and the unfitness is unlikely to change soon enough.
Best Interests: A dispositional decision that primarily considers the child’s physical, mental, and emotional health. Reviewed for abuse of discretion.
Appellate Deference: Courts of appeal do not reweigh evidence or assess credibility; they view the record in the light most favorable to the State and ask whether a rational fact-finder could have reached the result under the governing burden.

Conclusion

In re K.W.D. and E.L.D. solidifies two important propositions in Kansas child welfare law. First, incarceration under K.S.A. 38-2269(b)(5) may independently demonstrate parental unfitness if it leaves the parent unable to care properly for the child—a determination sensitive to whether the parent has mitigated incarceration’s limits through sustained engagement and planning. Second, the “foreseeable future” analysis does not end with the parent’s release date; courts may consider the realistic post-release period needed to achieve safe, stable parenting within the child’s timeframe.

The Court’s child-centered approach, paired with a pragmatic assessment of what reunification requires, will likely make it more difficult for incarcerated parents to defeat termination solely by pointing to an upcoming release. At the same time, the opinion explicitly acknowledges that imprisonment is not inherently disqualifying, and it sketches a roadmap for how incarcerated parents can preserve parental capacity. The dissent warns that the majority’s framework risks expanding judicial discretion beyond statutory text and entrenching inequities against disadvantaged parents.

Ultimately, the decision underscores a core statutory and constitutional balance: protecting the fundamental right to parent while ensuring that children receive timely permanency. Going forward, successful advocacy will hinge on robust, concrete records—about children’s needs and timelines, parents’ tangible efforts during incarceration, and credible post-release pathways to safe reunification.