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NOT DESIGNATED FOR PUBLICATION

No. 124,131

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of A.H. and C.P.,

Minor Children.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER, judge. Opinion filed February 4, 

2022. Affirmed.

Jordan E. Kieffer, of Jordan Kieffer, P.A., of Bel Aire, for appellant natural mother. 

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

Before GARDNER, P.J., BRUNS and CLINE, JJ.

PER CURIAM: Mother appeals the termination of her parental rights to her 

children A.H. and C.P. Mother does not challenge the district court's findings regarding 

her present unfitness, but rather challenges the district court's findings regarding her 

unfitness in the foreseeable future and the best interests of the children. Finding no error, 

we affirm.

Factual and Procedural Background

In May 2020, A.H., C.H., and C.P. were placed in police protective custody 

following multiple allegations concerning Mother's ability to care for the minor children. 

A few days later, the State filed a petition alleging the children were in need of care and 

the district court immediately placed the children in the protective custody of the 

Department for Children and Families (DCF). Mother and the three alleged fathers 
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waived their right to a temporary custody evidentiary hearing. Upon their waiver, the 

district court found there was probable cause to believe the children's health or welfare 

may be endangered without further care, and it was in their best interests to remain in out 

of home placement with DCF. 

Mother and the father of A.H. entered a no contest stipulation at the adjudication 

hearing a few months later. The father of C.P. was found in default after failing to appear. 

Relying on the facts in the State's petition, the district court found that as to Mother and 

the fathers of A.H. and C.P., clear and convincing evidence showed: (1) the children 

were without adequate parental care, control or substance; (2) the children were without 

the care or control necessary for their physical, mental or emotional health; (3) the 

children had been physically, mentally, or emotionally abuse or neglected, or sexually 

abused; and (4) the children had been residing in the same residence with a sibling under 

18 years of age who had been neglected or abused. The district court also adopted the 

proposed permanency plan and ordered visitation to be at the discretion of DCF or Saint 

Francis Ministries (SFM).

On February 9, 2021, the State moved to find the parents unfit and to terminate

parental rights as to A.H and C.P. At the time of termination, these children were six

years old and two years old, respectively. The State's motion alleged that Mother and the 

fathers of A.H. and C.P. were each unfit parents unable to care properly for the children

based on six factors under K.S.A. 2020 Supp. 38-2269(b) and (c). 

Two months later, the district court held a termination hearing considering the 

parental rights of Mother and C.P.'s father. At the start of the hearing, the district court 

found father in default for failing to appear and terminated his parental rights based on 

the State's proffered evidence and the district court's consideration of five factors under 

K.S.A. 2020 Supp. 38-2269(b) and (c). 
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After Mother testified on her own behalf, the State presented the testimony of 

Tayla Warren. Warren was the manager of the 316 Hotel, where the family had lived for

a few months before the children were placed in protective custody. Warren testified to 

Mother's drug use, the family's eviction for nonpayment, and the care she provided for 

the children, primarily A.H., when Mother left the children unsupervised at the hotel. 

Melissa Schmidt, A.H.'s therapist, also testified. She stated that she began 

providing services to A.H. in July 2020, but A.H. only recently began making progress in 

therapy. Apart from the initial meeting, Schmidt had not spoken with Mother. Schmidt, 

however, did not opine on the State's motion to terminate Mother's parental rights 

because she felt she did not have enough information. 

Chyncia Howard, Mother's therapist, testified to her concern for Mother's 

substance abuse—indicating Mother had admitted to relapsing in the past but denied 

using methamphetamine when confronted with her most recent positive drug test results. 

Howard conceded Mother had made progress in her sobriety and she "recognizes that 

there was an issue" that caused the removal of the children from her care. Even so, she 

maintained her prognosis for Mother remained "guarded" because Mother "has to do the 

work." Howard stated Mother was doing the work but contended Mother is "only at the 

beginning stages." 

The family's permanency specialist at SFM, Mallory Zimmerman, testified 

alongside her supervisor, Mattie-Kay Stewart. Zimmerman testified to her experience 

working with Mother and the children the prior year. First, she stated Mother did not 

complete the majority of the urine analysis or hair follicle testing that SFM had 

requested. Second, Zimmerman spoke to Mother's failure to complete case plan tasks, 

including Mother's inability to find stable income and housing. In addition to testimony 

regarding visitations and A.H.'s "parentified" behavior, Zimmerman testified at length 

about Mother's actions towards Zimmerman and other SFM staff. Zimmerman testified 
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that Mother claimed to hire private investigators to look into the case, Mother indicated 

she would kidnap the children, Mother believed people were following her after 

visitations, and Mother made threatening comments that made Zimmerman concerned for 

her own safety. Zimmerman testified that Mother should not be given more time to show 

progress because Zimmerman did not foresee Mother's issues of unstable income and 

housing changing in the near future. 

Stewart underscored Zimmerman's concerns, and testified A.H. needed secure 

adults in her life due to the trauma she had experienced as a child. Stewart also testified 

to Mother's inability to show secondary change and opined that secondary change was

important to show Mother was ready for reintegration. Mother's dishonesty with SFM 

throughout these proceedings further supported Stewart's opinion that Mother's unfitness 

was unlikely to change in the foreseeable future. Stewart concluded it would be in both 

children's best interests to terminate Mother's parental rights. 

The district court took the matter under advisement after closing statements. Three 

days later, the district court announced its ruling from the bench. It found Mother "was 

not credible on the issue of her methamphetamines usage" because her testimony 

contradicted itself and conflicted with the testimony of the other witnesses. The district 

court also found Mother's testimony about the events that occurred at the 316 Hotel was 

not credible; rather, Warren was a "very credible witness" for those events. Generally, the 

district court made the following findings: 

• Hair samples collected from C.P and C.H. tested positive for methamphetamine 

nearly two weeks after they were placed in police protective custody. Over the 

prior year, Mother had three hair follicles test positive for methamphetamines, and 

three urine samples tested positive for methamphetamine. 

• Mother told Warren she was using methamphetamines while living at the 316 

Hotel. A.H. sought assistance for Mother while at the hotel because Mother was 
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unresponsive. A.H. told Warren she was scared for Mother's safety on five or six 

occasions because Mother was "using needles." Warren witnessed needle caps in 

Mother's hotel room and witnessed needle tracks on Mother's arms. 

• Mother's testimony regarding her methamphetamine use was inconsistent. She 

initially testified she relapsed a single time in June 2020, but she contradicted this 

testimony by stating she relapsed most recently in October 2020. This 

contradictory testimony, combined with the testimony of Howard, discredited 

Mother's testimony about her methamphetamine usage. 

• Mother and her three children began living at the 316 Hotel around April 9, 2020,

and they were removed by the Wichita police for non-payment on May 5, 2020. 

Four days later, Cecil, a hotel employee and friend of Mother, paid Mother's 

delinquent hotel bill and the family moved back into the 316 Hotel. Mother soon 

became delinquent again on her hotel bill. 

• Warren testified the 316 Hotel is in a "very dangerous part of Wichita" and A.H. 

frequently wandered unsupervised to the hotel lobby, parking lot, and along the 

street. A.H. was frequently observed wandering the parking lot without shoes, and 

she was often seen wearing the same dress for multiple days.

• The staff at the 316 Hotel discovered the children unsupervised at the hotel on 

several occasions. On these occasions, hotel staff could not locate Mother for 

periods ranging from 15 minutes to several hours. The staff would feed the 

children at the nearby McDonald's. Warren and her husband provided food, 

clothing, and hygiene to the children. A.H. spent the night with Warren on some 

occasions when Mother could not be located. 

• At the time of termination, Mother had been living in a rental in Wichita for five

weeks. She used her pandemic stimulus money to pay the rent and deposit, but 

Mother's father leased the home because Mother did not have verifiable income. 

Mother will be responsible for the rent and utility bills after her father moves out, 

but she has depleted the stimulus funds. Prior to living in this rental, Mother lived 

in her father's camper, with friends, or in hotels. The district court found Mother 
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had lived in Hutchison, Towanda, Coffeyville, El Dorado, and Wichita during the 

pendency of this case. 

• Mother was unemployed at the time of the evidentiary hearing and was last 

employed the two and a half years prior. Even so, Mother testified she was starting 

a new job the week after the termination hearing by providing private home 

healthcare. 

• Mother conceded many of her domestic partners have been physically violent to 

her, have criminal records, and have been sex offenders. Mother conceded that 

C.P.'s father had a lengthy criminal record and physically abused her, but she 

continued to have contact with him and he was named as the father of Mother's 

twins that were due on October 5, 2021. 

The district court relied on these factual findings to find Mother was unfit to care 

for the needs of A.H. and C.P. To reach its decision, the district court considered and 

applied these factors under K.S.A. 2020 Supp. 38-2269:

• The use of intoxicating liquors or narcotics or dangerous drugs of such duration or 

nature as to render the parent unable to care for the ongoing physical, mental or 

emotional needs of the children under K.S.A. 2020 Supp. 38-2269(b)(3);

• The physical, mental, or emotional abuse or neglect or sexual abuse of the children 

under K.S.A. 2020 Supp. 38-2269(b)(4);

• The failure of reasonable efforts made by appropriate public or private agencies to 

rehabilitate the family under K.S.A. 2020 Supp. 38-2269(b)(7);

• The lack of effort on the part of Mother to adjust her circumstances, conduct or 

condition to meet the needs of the children under K.S.A. 2020 Supp. 38-

2269(b)(8); and 
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• The failure to carry out a reasonable plan approved by the court directed toward 

the integration of the children into Mother's home under K.S.A. 2020 Supp. 38-

2269(c)(3). 

The district court then held that Mother's unfitness was unlikely to change in the 

foreseeable future and that termination of Mother's parental rights was in the best 

interests of the children. 

Mother timely appeals. 

Analysis

A parent has a constitutional protected liberty interest in the relationship with his 

or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S. Ct. 1388, 71 L. 

Ed. 2d 599 (1982); Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 

49 (2000) (stating the interest of parents in the care, custody, and control of their children 

is a fundamental liberty interest); In re B.D.-Y, 286 Kan. 686, 697-98, 187 P.3d 594 

(2008). Accordingly, the State may terminate the legal bonds between parent and child 

only upon "clear and convincing evidence that the parent is unfit by reason of conduct or 

condition which renders the parent unable to care properly for a child and the conduct or 

condition is unlikely to change in the foreseeable future." K.S.A. 2020 Supp. 38-2269(a). 

If the district court makes such a finding, it must then consider whether termination is in 

the best interests of the child. The court's primary concern here is the physical, mental 

and emotional health of the child. K.S.A. 2020 Supp. 38-2269(g)(1).

Mother does not challenge the district court's finding that she is unfit under the 

five factors the district court considered. See K.S.A. 2020 Supp. 38-2269(b)(3), (b)(4), 

(b)(7), (b)(8), (c)(3). Rather, Mother challenges whether the State presented clear and 

convincing evidence that her unfitness was unlikely to change in the foreseeable future. 
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Mother also challenges the district court's finding regarding the best interests of the minor 

children. 

Mother's Unfitness is Unlikely to Change in the Foreseeable Future.

We must first determine whether clear and convincing evidence supports the 

district court's decision regarding Mother's future unfitness. K.S.A. 2020 Supp. 38-

2269(a). To do so, we must view the record in the light most favorable to the State—as 

the prevailing party below—to decide whether a rational fact-finder could have found it 

highly probable that Mother's unfitness is unlikely to change in the foreseeable future. In 

reviewing the record, we are not to reweigh the evidence, pass on the credibility of 

witnesses, or redetermine factual questions. In re Adoption of Baby Girl P., 291 Kan. 

424, 430-31, 242 P.3d 1168 (2010).

Although there is no set amount of time that constitutes the "foreseeable future" in 

a parental termination proceeding, K.S.A. 2020 Supp. 38-2201(b)(4) acknowledges "that 

the time perception of a child differs from that of an adult and [the State should] dispose 

of all proceedings under the code without unnecessary delay." Accordingly, Kansas 

courts are to measure time in a termination case based on "'the child's perspective, not the 

parent['s], as time perception of a child differs from that of an adult.'" In re S.D., 41 Kan. 

App. 2d 780, 790, 204 P.3d 1182 (2009) (finding a period of 11 months of incarceration 

not to be within the foreseeable future from a child's perspective). Kansas courts may 

reasonably look to the past conduct of a parent as being indicative of future behavior. In 

re K.L.B., 56 Kan. App. 2d 429, 447, 431 P.3d 883 (2018). 

The State presented evidence to show Mother would need to provide a secure 

environment for the children by finding stable housing and income. In addition, she 

would be required to successfully complete a parenting plan and be introduced into the 
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children's life over a period of time. Further, she would need to find a way to avoid drugs 

and violence—which are serious concerns based on her prior history.

Mother primarily contends the evidence did not support the district court's 

foreseeable future finding because she had made some progress on most of her case plan 

tasks. But, as Stewart testified, Mother's completion of case plan tasks did not show 

Mother demonstrated "secondary change"—which Stewart testified was an important 

factor for reintegration and in the future:

"Secondary change assures—not assures, but it gives us hope that there has been 

change and there is long-term change available for us to assess and look—and look at the 

evidence presented in front of us.

. . . .

"I do not believe that [Mother] has admitted an understanding of why her 

children are in DCF custody and her role in that. In working with Saint Francis, I do not 

believe that [Mother] has made appropriate steps towards secondary change." 

Stewart added that she would not feel comfortable sending the children home with 

Mother for the foreseeable future because Mother had not demonstrated "her ability to 

make change and long systematic change." 

The evidence also showed Mother continued to deny her issues with substance 

abuse, which her therapist, Howard, diagnosed as "severe." Hair samples collected from 

Mother, C.P. and C.H., tested posited for methamphetamines soon after the children were 

placed in police protective custody. In addition to Mother's positive hair follicle test in 

May 2020, evidence showed that Mother tested positive for methamphetamines and 

amphetamines—by either hair follicle or uranalysis test—on four occasions over the 

course of the proceedings. 
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Despite these tests, Mother repeatedly denied the results and provided inconsistent 

explanations. When confronted with the children's positive hair follicle results, Mother 

testified she had "no idea" why the children had methamphetamine in their system but

agreed it was "concerning." When confronted with her own test results, Mother initially 

claimed she was clean until she had "one relapse" in June 2020. Yet she contradicted this 

testimony later by admitting to a relapse in October 2020. And this testimony was further 

contradicted by Howard's testimony, who stated Mother admitted to her that she last used 

methamphetamine in January 2021. 

Although she admitted to two relapses on the stand, Mother consistently denied 

her positive hair follicle test from February 2021. She conceded the test result was 

positive, but maintained she was clean and had not been given a copy of the results upon 

her request. On another occasion, Mother opined that someone, B.P. or a friend, was 

putting liquified meth into the "vape juice" of her vape pen which may have caused her 

positive test result.

Additionally, the State presented evidence that Mother had completed only one of 

the three substance abuse treatment programs she had attended. She was unsuccessfully 

discharged from a treatment program during the pendency of this case due to her failure 

to attend. At termination, Mother testified she had been seeing Howard for substance 

abuse treatment since November 2020, but Howard clarified she did not begin treating

Mother's substance abuse until March 2021. Howard opined that she likes to see people 

in substance abuse treatment for three months before the substance abuse program is 

complete and Mother can move on to aftercare. She testified that if Mother "continues to 

maintain her appointments, and I see her for three months, she can then enter into what 

we call aftercare, and aftercare would also include her therapy." 

Although Mother provided three clean drug tests leading up to the termination 

hearing, Mother was not compliant with most of SFM's requests for drug testing until 
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March 2021. And both Zimmerman and Stewart testified Mother's termination testimony 

was the first time they have heard Mother admit to using methamphetamine. 

Given the facts that led to the children's removal from her care, Mother's refusal to 

acknowledge her methamphetamine use is significant. The State presented evidence that 

prior to her removal, A.H. expressed concern to Warren on five or six occasions that

Mother was "using needles." On one occasion, Warren called emergency services 

because A.H. believed Mother had overdosed from "using needles." When confronted 

with this evidence at trial, Mother conceded she used needles when using 

methamphetamine but denied using in front of A.H. Mother said she was cutting her son's 

hair with a friend when emergency services was called because A.H. believed Mother 

had overdosed. 

As noted above, Howard testified that Mother was making progress in her sobriety 

but was "only at the beginning stages." Mother's early progress fails to show Mother's 

unfitness because of her methamphetamine use is likely to change in the foreseeable 

future. In fact, Mother's testimony was the only evidence presented that suggested 

Mother's unfitness based on her drug use would change in the foreseeable future. But, as 

noted, the district court found Mother's testimony regarding her methamphetamine use 

was not credible and we do not pass on credibility determinations on appeal. See In re 

Adoption of Baby Girl P., 291 Kan. at 430-31.

Mother's lack of stable housing and employment are additional issues shown to be

unlikely to change in the foreseeable future. Although Mother testified she was living in a 

three-bedroom rental home in Wichita at the time of termination, Zimmerman testified 

that Mother had reported living in "six or seven" difference residences the year before.

And the longest period Mother had lived at any single residence was four months in 

Wichita, but Mother never provided proof of housing for that residence. 
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Mother had been living with her father in their Wichita rental home for five weeks

at the time of termination, but Mother's own testimony showed she did not have stable 

housing during the pendency of this case. It is unclear how long Mother had lived in 

Hutchinson, but she moved there in August 2020 after the children had been removed 

from her care. At some point, Mother began living with friends and in hotels—moving 

back and forth from Coffeyville to Wichita—until December 2020 when she began living 

in El Dorado. Mother lived in El Dorado with her father for two weeks before moving 

into her father's camper in Wichita. She lived in her father's camper for two months until 

she moved into the Wichita rental. 

Although Mother testified that she was on the lease, Zimmerman contradicted 

Mother's testimony by stating that the lease listed Mother solely as an occupant. Mother 

clarified that her father was on the lease because she did not have a verifiable income at 

the time of application. She also testified the landlord knew why her father applied and 

indicated that her name would be put on the lease once she had verifiable income. Mother 

then conceded she was solely an occupant on the lease but opined "it shows attempt" to 

find stable housing. 

While Mother may have completed the case plan task of finding stable housing, 

the State's evidence showed that Mother's housing situation was not stable for the 

foreseeable future due to her lack of employment and diminished stimulus funds. Mother 

testified that she used her COVID-19 stimulus money to pay the rent, deposit, and 

utilities. But she also testified she "tapped out" her stimulus money after paying the rent 

and buying furniture. Mother's diminished stimulus funds are concerning given Mother 

testified she had been unemployed for two and a half years at the time of termination, 

despite being court-ordered to find and maintain full-time employment. Even more, the 

termination report created by Zimmerman and Stewart indicated Mother told SFM she 

was employed on five occasions, yet she never provided proof of employment. 
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Mother testified she was starting a new job the week after the termination hearing, 

earning $12 per hour, working 36 hours a week. But even so, Mother's testimony is the 

only evidence suggesting Mother may have stable employment in the foreseeable future. 

To the contrary, the State's evidence showed that Mother remained unemployed at the 

time of termination despite a court order for her to find a job. Although she testified that 

she would start a new job the following week, the State showed that Mother had been

dishonest with SFM about her employment in the past. In this respect, it is reasonable for 

us to look to Mother's past conduct as being indicative of her future behavior. See In re 

K.L.B., 56 Kan. App. 2d at 447.

The State showed that it was unlikely that Mother's lack of stable housing and 

stable employment would change in the foreseeable future. Both Zimmerman and Stewart 

specified these issues as barring reintegration. Zimmerman had concerns for Mother's 

housing stability because she was not on the lease and her father may have to enter 

hospice due to an illness. When asked if Mother should be given more time before 

terminating her rights, Zimmerman answered negatively because she did not believe 

"stable housing or a stable income will be in the near future." Zimmerman consistently 

indicated Mother's future unfitness was due to housing, employment, and substance abuse 

issues. Stewart reiterated Zimmerman's testimony. 

And as detailed above, the evidence showed that at the time of removal, Mother 

was using methamphetamine, was unemployed, and was living with her three children in 

a hotel. At the time of termination, these issues persisted despite a few clean drug tests, 

Mother's occupation of a rental, and alleged future employment. Mother has not shown 

she made long-term changes to the conduct that lead to the removal of her children. See 

In re K.L.B., 56 Kan. App. 2d at 447.

As another panel of this court noted, "[w]e must judge these cases based mostly 

upon actions, not intentions, and we must keep in mind that a child deserves to have some 
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final resolution within a time frame that is appropriate from that child's sense of time." In 

re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237 (2008). At the time for termination, 

A.H. was six years old and C.P. was two years old, and they had been removed from 

Mother's care for over one year—roughly half of C.P.'s life. Viewing the evidence in the 

record in a light most favorable to the State, we find clear and convincing evidence 

supporting the district court's determination that Mother's unfitness is unlikely to change 

in the foreseeable future.

Termination of Mother's Rights Was in the Best Interests of the Children.

Having found unfitness, the district court must then decide whether termination of 

parental rights is "in the best interests of the child" K.S.A. 2020 Supp. 38-2269(g)(1). 

Giving "primary consideration to the physical, mental and emotional health of the child," 

the district court makes that determination based on a preponderance of the evidence. 

K.S.A. 2020 Supp. 38-2269(g)(1). In re R.S., 50 Kan. App. 2d 1105, 1116, 336 P.3d 903

(2014). The best interests issue is essentially entrusted to the district court acting within 

its sound judicial discretion. 50 Kan. App. 2d at 1115-16. So an appellate court reviews 

the best interests decision for an abuse of discretion. A district court exceeds that broad 

latitude if it rules in a way no reasonable judicial officer would under the circumstances, 

if it ignores controlling facts or relies on unproven factual representations, or if it acts 

outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. 

ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State v. Ward, 

292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

Mother argues the district court abused its discretion in finding termination of her 

parental rights was in the best interests of the children because the children are young 

"and had many years of childhood remaining, during which Mother could continue to 

bond to them and be a significant part of their lives." Mother's brief argument is solely 
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that the district court's best interests finding was unreasonable. But given the testimony 

presented at trial, Mother's argument is not persuasive. 

The State presented evidence that A.H.'s behavior was "parentified" around 

Mother and her siblings. For example, Zimmerman testified that A.H. tried to calm 

Mother down when Mother was upset, and she would change C.P.'s diaper and serve food 

while Mother did not help. Stewart found A.H.'s behavior concerning because A.H. was 

acting as the parent by recognizing and co-regulating Mother's emotions:

"Children should be concerned with who they're playing with at recess, who they 

are going to go see, you know, on weekends or things like that of a child's nature. At six 

years old, the child should not be concerned with adult responsibilities such [a]s paying 

rent, where I'm going to live, am I going to be able to eat. That is not the mindset of a 

typical developing child." 

Stewart also testified that A.H. will require a secure environment to grow because 

she has "experienced multiple adverse childhood experiences" that will impact the rest of 

her life. Stewart testified A.H. "needs a secure, stable, nurturing environment with adults 

who can co-regulate with her and who are often regulated themselves . . . . She needs a 

secure, stable adult." 

Stewart later testified that termination was in A.H.'s best interests because A.H.'s 

attachment to Mother is not healthy and A.H. would continue to be put in a position as 

parent to Mother and her siblings. Stewart also believed termination was in C.P.'s best 

interests because Mother has not shown "an appropriate amount of parenting" or "an 

appropriate amount of long-term systematic change." Zimmerman's testimony was 

consistent with Stewart's, indicating termination was in the children's best interests

because they "need stability, and that's not what they would receive if they were to go 

home with [Mother] today." 
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The district court gave primary consideration to the physical, mental, and 

emotional health of the children when it terminated Mother's parental rights, and Mother 

has not shown the district court's decision was unreasonable. Having reviewed the facts, 

the law, and the record, we find no abuse of discretion in the district court's decision to 

terminate Mother's parental rights to A.H. and C.P.

Affirmed.