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NOT DESIGNATED FOR PUBLICATION

No. 121,474

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of A.B., M.R., S.R., J.R., M.B., J.B., and K.R.,

Minor Children.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed April 10, 2020. 

Affirmed.

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

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

Before ATCHESON, P.J., WARNER, J., and WALKER, S.J.

PER CURIAM: After an evidentiary hearing, the district court terminated Mother's 

parental rights as to six of her natural children and ordered a permanent custodianship for 

Mother's oldest child, A.B. Mother contends the evidence did not support the district 

court's decision to terminate her parental rights or establish a permanent custodianship, 

but instead showed she was making progress—albeit slowly—toward being able to 

provide a home for her children. She also claims termination was not in the children's 

best interests, as they had expressed a desire to reintegrate with her, and termination 

would not only separate the children from her, but likely from each other. 

The decision whether to terminate a person's parental rights is grave and often 

difficult. But it is not the role of this court to reweigh evidence or second-guess the 
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district court's reasonable exercise of its discretion. These principles direct the outcome in 

this case. After carefully reviewing the parties' arguments, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On October 31, 2016, Wichita police responded to a welfare check regarding 

Mother's six children, then ranging in age from 12 to 1 years old, after their greatgrandmother reported one of the children—J.R.—had several injuries on his buttocks. 

The great-grandmother also reported that earlier that evening Mother had spanked J.R. 

with a belt approximately six times on his back and arms because he had taken Mother's 

crackers. When they arrived at the scene, the responding officers spoke with A.B., the 

oldest child, who informed them she had called law enforcement a month earlier because 

Mother "beats" her. She also told the officers that she and her siblings did not feel safe 

around Mother. Mother informed the officers that the great-grandmother was angry 

because she had observed Mother "whooping" J.R. after he stole things. The officers 

placed all six children in protective custody. 

Hospital staff examined J.R. and found several significant injuries consistent with 

abuse—a cigarette burn on his temple and myriad scars and lesions on his thighs and 

buttocks. The hospital staff indicated J.R. had too many scars on his body for them to 

accurately document. Mother subsequently admitted to disciplining her children by 

slapping their hands or hitting them with a shoe or leather belt, depending on their age. 

On November 2, 2016, the Kansas Department for Children and Families (DCF)

filed a Child in Need of Care petition on behalf of the children. The district court issued a 

protective custody order the same day. The next day, the court ordered the children be 

placed in temporary custody; it adjudicated them as children in need of care on

November 22, 2016. In May 2017, Mother gave birth to her seventh child, who was 

placed in police protective custody shortly after birth. On May 31, 2017, DCF filed a 
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Child in Need of Care petition for the newborn, K.R.; the court ordered temporary 

custody the next day and adjudged the child to be a child in need of care on November 3, 

2017. Most of the children have lived in multiple foster homes since their placement in 

protective custody, in part because the foster parents could not control the children's

behavior. 

During the course of this case, Mother's reintegration plan required her to (1) cease 

using drugs, (2) attend therapy for various mental health issues, (3) secure stable housing, 

and (4) gain full-time employment and a steady income. Throughout 2017, the court

ordered the children remain in DCF custody but found reintegration to still be viable. It 

made those decisions based on updates from St. Francis Community Services (SFCS)—

the organization responsible for placing the children in foster homes and helping mother 

regain her children—and other care coordinators. But by March 2018, the court found 

reintegration was no longer viable and requested the district attorney to file a motion to 

terminate Mother's parental rights. The State filed its motion in April, and the district 

court set the termination hearing for July 2018. 

Mother had a history of drug use. She was evaluated for drug treatment in January 

2017 and began in June 2017. The drug-treatment program entailed 16 therapy sessions, 

2 per week for eight weeks. Mother attended 60-70% of her scheduled sessions but 

missed several appointments. She completed her 16 sessions between June and December 

2017 before being discharged in February 2018. 

Throughout her case, Mother submitted numerous urinalyses (UA) and hair 

follicles for drug testing. Some of these tests came back negative, but throughout the 

proceedings the tests also demonstrated Mother's continued drug use:

• In November 2016 (at the outset of the proceedings), Mother submitted a UA that 

tested positive for marijuana. 
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• In January 2017, two months into the CINC proceedings and while Mother was 

pregnant with K.R., Mother submitted a hair follicle test that returned positive 

results for cocaine.

• In June 2018, a month before the termination hearing, Mother's hair follicle 

submission again tested positive for cocaine.

Although Mother admitted she used marijuana the day police took her children, she 

denied consuming cocaine. She explained the first positive cocaine test may have resulted 

from laced marijuana, she blamed the second on her coming into contact with cocaine on 

a friend's dresser.

In June 2017, Mother also began attending therapy to address her PTSD and major 

depression diagnoses. As these diagnoses impact how she handles stress, which 

influences her parenting, her course of therapy focused on cultivating a positive support 

system. Stress management is particularly important because several of her children have 

mental illness diagnoses and receive counseling. During therapy, Mother never admitted 

she abused her children; she maintained others had done so. But she recognized her role 

in placing her children in potentially abusive situations. She attended 16 of her 28 therapy 

sessions; in the months before the July 2018 termination hearing, she stopped attending 

as frequently. At the termination hearing, she stated she would be willing to resume her 

treatment. 

Mother had a tumultuous housing history. Before February 2017, she lived with a 

friend. Around March, she used her tax return to rent a house through November. In 

October, however, her landlord attempted to evict her. She began living with a cousin 

from October 2017 to July 2018. In late 2017, Mother applied for and reported meeting 

with someone about public housing, but given the long wait list, she did not obtain 
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placement. She eventually borrowed $300 from a friend for a deposit on a three-bedroom 

apartment, which she would move into on August 1, 2018. 

Finally, Mother's employment was sporadic. In January and February 2017, she 

worked at Five Guys restaurant. She left after developing preeclampsia during her 

pregnancy with K.R.; her doctor ordered bed rest from March until the child's birth in 

May. She worked at Wendy's for a week in February 2018 before leaving after catching 

the flu. Sometime in May 2018, she worked at a strip club for two weeks. And in late 

June 2018, she found a job at an inventory company, though her two paychecks prior to 

the termination hearing showed she had only worked 12 hours collectively. Mother 

explained part of this was training, and she could work more hours in the future. While 

unemployed, Mother stated she applied for 10-15 jobs per day, but SFCS case workers

could not verify this. She also applied for SSI, though Mother currently is ineligible to 

receive any State financial assistance besides food stamps. 

From November 2016 to February 2018, Mother worked with the same SFCS case 

workers, who monitored Mother's supervised visits and met with her monthly to gauge 

her progress. Mother also called them several times each week. In May 2017, SFCS 

recommended moving towards reintegration—overnight visits with the older children and 

custody of the newborn—but by February 2018, SFCS recommended adoption based on 

Mother's lack of employment and housing. 

The February 2018 recommendation also coincided with a change in social 

workers; Mother's case was reassigned to another case worker. When that case worker

unexpectedly died shortly after the transfer, a new case worker took over in early April 

2018. Although SFCS staff met with mother in March and April, the new case worker did 

not meet with Mother until June. Neither Mother nor the case worker tried to call each 

other during that time. 
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The district court held an evidentiary hearing on the State's termination request on 

July 31 and August 1, 2018. At the termination hearing, the Director of Reintegration at 

SFCS stated she would like to see six months of stable employment and housing and 

continued drug treatment and therapy before recommending reintegration; those goals 

had not been achieved in the 21 months the case had been pending. The court also heard 

from Mother's friends, who stated they would support her in raising the children. 

At the close of evidence, the court terminated Mother's parental rights for her six 

youngest children and placed A.B. in a permanent custodianship. It did so based on 

Mother's lack of stable employment and housing and her intermittent therapy attendance 

and most recent positive drug test. Mother also had acknowledged the children's abuse 

but had not taken responsibility for her role, either in causing the children's injuries or in 

failing to protect them from injuries caused by others. These facts, combined with the 

case's 21-month duration, led the district court to conclude Mother was an unfit parent 

and this unfitness would not change for the foreseeable future. 

Finally, the court considered the children's interests. The court noted that the four 

oldest children, who had endured a history of abuse and Mother's lifestyle, each had 

serious and continuing mental health diagnoses. The court was also concerned about "the 

possible danger these kids could be in"; it found that the "safety" of the children was at 

risk, particularly because four of the five known fathers of the children had criminal 

records for violent and dangerous offenses. Therefore, giving "primary consideration" to 

"the physical, mental, and emotional health of the children," the court found it was in 

their best interests to terminate Mother's parental rights concerning her six youngest 

children and to establish an alternative permanent custodianship for A.B.

Mother appeals.
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DISCUSSION

A parent has a constitutionally 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); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). At the 

same time, children have the right "to receive proper care, control[,] and guidance"; when 

a child's rights are threatened in the course of the parent-child relationship, the State "has 

the duty to intervene in the [child's] behalf." Lennon v. State, 193 Kan. 685, Syl. ¶ 2, 396 

P.2d 290 (1964). Proceedings involving the termination of parental rights lie at the 

intersection of these often-competing interests. 

Before terminating a parent's rights or appointing a permanent custodianship, a 

district court must find the State has proven the parent is unfit; the conduct or condition 

which renders the parent unfit is unlikely to change in the foreseeable future; and 

termination of parental rights (or permanent custody) is in the best interests of the child.

K.S.A. 2019 Supp. 38-2269(a), (g). Due to the fundamental nature of parental rights, any 

findings regarding a parent's unfitness must be proved by clear and convincing evidence. 

K.S.A. 2019 Supp. 38-2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 

(2014). When reviewing a finding of parental unfitness, this court must determine, after 

considering all the evidence in a light favoring the State, whether a rational fact-finder 

could have found that finding to be highly probable. In re B.D.-Y., 286 Kan. at 705. We 

do not reweigh conflicting evidence, pass on the credibility of witnesses, or otherwise 

independently decide disputed questions of fact. 286 Kan. at 705.

After finding a parent unfit, the district court must determine if termination of 

parental rights (or establishment of a permanent custodianship) is "in the best interests of 

the child"—or here, children. K.S.A. 2019 Supp. 38-2269(g)(1); see also K.S.A. 2019 

Supp. 38-2269(g)(3) ("If the court does not terminate parental rights, the court may 

authorize appointment of a permanent custodian."). This assessment gives "primary 
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consideration to the physical, mental and emotional health of the child." K.S.A. 2019 

Supp. 38-2269(g)(1). Because determining the child's best interests is inherently a 

judgment call, we will only overturn a district court's best-interests determination when it 

constitutes an abuse of discretion. In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 2. A district 

court exceeds the broad latitude it is afforded if it rules in a way no reasonable person 

would have under the circumstances, ignores controlling facts or relies on unproven 

factual representations, or acts outside the appropriate legal framework. State ex rel. 

Secretary of DCF v. Smith, 306 Kan. 40, 60, 392 P.3d 68 (2017).

Mother raises two overarching arguments in her appeal. First, Mother argues the 

State did not prove by clear and convincing evidence that she was an unfit parent. Mother 

contends she made reasonable progress toward reintegration, and the court's conclusions 

to the contrary were not supported by the record. Mother attributes any gaps in 

communication or shortfalls to the reassignment of case workers from SFCS, not her own 

conduct. Second, Mother claims the district court erred in its best-interests analysis, 

particularly because its termination decision likely will not only separate the children 

from Mother but also from one another. We address each of these claims in turn.

1. The State proved Mother's unfitness by clear and convincing evidence.

K.S.A. 2019 Supp. 38-2269 lists several nonexclusive factors a court considers—

singularly or in combination—in determining whether a parent is unfit. The district court 

here cited the following provisions when it terminated Mother's parental rights:

• K.S.A. 2019 Supp. 38-2269(b)(7) (failure to rehabilitate the family); 

• K.S.A. 2019 Supp. 38-2269(b)(8) (lack of effort to adjust Mother's circumstances 

to meet the children's needs);
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• K.S.A. 2019 Supp. 38-2269(c)(3) (failure to carry out a reasonable court-approved 

plan directed toward reintegration with Mother). 

Any of these factors alone may be sufficient to support unfitness. K.S.A. 2019 Supp. 38-

2269(f).

Mother claims that the record does not indicate by clear and convincing evidence 

that she was unfit. In particular, Mother argues that the decision by SFCS case workers in 

February 2018 was based not on her conduct, but on changes in SFCS staff who worked 

on her case. She also contends the district court's ruling failed to consider the progress 

she had made—that she completed drug treatment, had signed a lease for an apartment, 

and now had a job. 

Mother presented these same arguments to the district court, and that court was not 

persuaded. On appeal, it is not the role of this court to reweigh the evidence, but to 

determine whether there is sufficient evidence in the record by which a court could 

conclude it was highly probable that Mother was unfit to parent these children. In re 

B.D.-Y., 286 Kan. at 705. The evidence presented below meets this standard. 

The record indicates that SFCS made reasonable efforts to reintegrate the family. 

Mother had the same case workers for 16 months, from November 2016 to February 

2018. During that time, SFCS referred Mother to substance-abuse treatment and therapy 

while also encouraging her to find housing and employment. Communication may have 

become less frequent after the February 2018 case reassignment, but Mother still

interacted with SFCS staff in March and April 2018 during monthly meetings. And 

Mother also was responsible for contacting SFCS if she needed assistance.
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Likewise, there is ample evidence in the record indicating Mother's lack of effort 

in changing her circumstances and failure to carry out the court-approved reintegration

plan:

• During the 21 months this case was pending before the district court, Mother 

maintained independent housing for approximately eight months. 

• During the 18 months she could work while she was not on bed rest during her 

pregnancy, Mother was sporadically employed and worked few hours.

• Mother initially attended some of her therapy sessions but stopped. Since her 

diagnoses impact how she manages stress, this treatment is particularly important 

given her numerous children and their own mental health diagnoses.

• Mother did progress and finish her drug-treatment program, but one month before 

the termination hearing (four months after finishing the program), she tested 

positive for cocaine. 

Similarly, there was evidence at the termination hearing to support the district 

court's conclusion that Mother will remain unfit for the foreseeable future. Although 

Mother stated she had been working since the end of June 2018, she had only worked 

about 12 hours total during that time, and the district court noted she had turned down 

opportunities to work additional time and gain additional income. While Mother had 

signed a new lease beginning August 1, 2018, the court indicated there was no record of 

Mother maintaining stable housing. And Mother had demonstrated recent drug use. The 

record supports the district court's conclusion that Mother's circumstances were not likely 

to change.
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2. The district court did not abuse its discretion in analyzing the best interests 

of the children.

Mother also argues the district court erred when it determined that it was in the 

best interests of the children to terminate Mother's parental rights (or, in the case of A.B., 

to establish a permanent custodianship). Mother argues such action would not be in the 

children's interests because they are attached to her, and termination would entail 

separating the children from each other as well as from her.

A district court's analysis of the best interests of the child is governed by K.S.A. 

2019 Supp. 38-2269(g)(1). Under that statute, after a court has made a finding that a 

parent is unfit, "the court shall consider whether termination of parental rights . . . is in 

the best interests of the child." K.S.A. 2019 Supp. 38-2269(g)(1). The statute further 

instructs the court to "give primary consideration to the physical, mental and emotional 

health of the child"—directing that "[i]f the physical, mental or emotional needs of the 

child would best be served by termination of parental rights, the court shall so order."

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

Our review of the record demonstrates the district court considered the factual 

allegations and arguments presented and ultimately concluded it was in the six younger 

children's best interests to terminate Mother's parental rights and, in the case of A.B., to 

establish a permanent custodianship. In particular, the court noted that the four oldest 

children—who had lived with Mother the longest and thus had witnessed the lack of 

stability and history of abuse—all had been diagnosed with serious mental health

conditions. The court also noted a serious concern for the children's safety, especially 

given their past physical abuse and Mother's repeated decisions to engage in romantic 

relationships with men who had violent criminal histories. 

SFCS staff indicated six to nine months would be needed to determine whether 

Mother should be reintegrated with her children. But at the time of the hearing, only one 
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of the children—A.B.—was older than 10; three of the children were under the age of 6. 

The case had already progressed for 21 months. The district court noted that an additional 

six to nine months would not be workable from the perspective of these younger children, 

who barely knew Mother. 

The district court did not abuse its discretion in analyzing the children's best 

interests. Thus, the court did not err in terminating Mother's parental rights with regard to 

the six youngest children. With regard to A.B., who was 14 at the time of the hearing, the 

court found a permanent custodianship—rather than termination—to be the best course of 

action since A.B. had known Mother the longest and wished to continue to have some 

kind of relationship with her; the permanent custodianship accomplished that goal while 

still protecting A.B.'s health and safety. This conclusion, like the court's termination 

decision, was reasonable and supported by the evidence in the record. 

Affirmed.