1

NOT DESIGNATED FOR PUBLICATION

No. 121,298

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of A.R.,

A Minor Child.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; GREGORY D. KEITH, judge. Opinion filed April 24, 2020. 

Affirmed in part, reversed in part, and remanded.

Grant A. Brazill, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, for appellant 

natural father.

Anita Settle Kemp, of Wichita, for appellant natural mother.

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

Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.

BUSER, J.: Mother and Father appeal the termination of their parental rights to 

their son, A.R., born in 2015. They contend the State failed to present sufficient evidence 

that they were unfit to parent, and their unfitness was unlikely to change in the 

foreseeable future. Father also argues his due process rights were violated when he was 

allowed to proceed pro se without being given an opportunity to obtain substitute counsel 

or be provided with information regarding the dangers of self-representation.

We find that Father has not preserved his due process argument for appellate 

review. First, he has failed to comply with Kansas Supreme Court Rule 6.02(a)(5) (2020

Kan. S. Ct. R. 34). Second, while claiming constitutional error, Father has failed to assert 
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or brief prejudice as a result of that claimed error. Accordingly, the due process issue is 

procedurally barred and dismissed. Regarding Father's claim that there was insufficient 

evidence of his unfitness to parent A.R., we hold the district court did not err in 

terminating Father's parental rights.

Regarding Mother, we find the district court erred in terminating her parental 

rights to A.R. because there was insufficient clear and convincing evidence that Mother's 

unfitness was unlikely to change in the foreseeable future. Accordingly, the termination 

of Mother's parental rights is reversed, and the case is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2016, the Department of Children and Family Services (DCF) 

received a report alleging physical neglect of A.R. In particular, A.R. was malnourished 

and weighed only 18.63 pounds at his 20-month doctor's appointment. In fact, his height 

and weight were not reflected on the normal growth chart, indicating that he was failing 

to thrive. Mother and Father were reportedly feeding A.R. only watered-down milk, raw 

vegetables, cereal, and water. Shortly thereafter, A.R. was placed in protective custody, 

and the parents agreed to family preservation services.

Efforts to preserve the family were less than successful. In March 2017, A.R. was 

admitted to the hospital because of his low weight. A few days later, the State filed a 

child in need of care (CINC) petition. Among other concerns, the petition alleged the 

parents' roommate had a conviction for indecent liberties with a child, but the parents 

allowed him to provide a significant amount of care for A.R. Moreover, Father did not 

permit family preservation workers to interact with A.R. during visits, and the parents 

were not following feeding recommendations for A.R.
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The district court placed A.R. in the temporary custody of DCF. Mother and 

Father appeared at an adjudication hearing in April 2017. They both entered no contest 

statements, and the court adjudicated A.R. as being a CINC. The district court ordered 

A.R. to remain in DCF custody and directed Mother and Father to complete case plan 

tasks designed to reintegrate A.R. with his parents.

In the meantime, Mother gave birth to a baby girl in May 2017. Mother and Father 

gave legal guardianship of the baby to their landlord's girlfriend to avoid the possibility 

of the baby being placed in State custody. The parents planned to end the guardianship 

once the CINC case was over.

At a review hearing in April 2018, Father expressed dissatisfaction with his 

appointed counsel and asked to represent himself. The court promptly granted his request.

In October 2018, the State moved to terminate the parental rights of Mother and 

Father. The district court held a hearing in January 2019. The following facts are taken 

from stipulations, testimony, and exhibits from the termination hearing.

Mother testified that A.R. was in state custody because she had not been properly 

feeding him. Mother acknowledged that she was unaware of A.R.'s increasing nutritional 

needs and that was her fault. Mother believed that she knew how to feed A.R. now 

because she had taken a parenting class and had sought help from others. Mother did not 

have any concerns about raising her children because she had enough resources to assist 

her.

When Mother and Father attended their visits with A.R., the visits typically went 

well. Nevertheless, Mother and Father were still having one-hour supervised visits at the 

time of trial. Of note, ordinarily, parents progress beyond one-hour supervised visits by 

this time, but Father had been unable to produce a urinalysis (UA) that was drug-free.
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Father's UAs and hair follicle tests regularly tested positive for marijuana.

Although Father testified that he quit using marijuana in 2004, he explained the routinely 

positive test results were caused by individuals using marijuana that he detains as a 

bounty hunter. Father also opined that because he was a heavy smoker for 13 years, "it's 

not going to be out of [his] system that quick." Although Mother tested positive for 

marijuana use on one occasion, caseworkers had no concerns about her using illegal 

drugs.

Lizabeth Rinehart, the family's case manager from August 2017 until November 

2018, reported that Father frequently became frustrated during their interactions, and he 

was verbally abusive at times. Father admitted he had had problems with the 

caseworkers, but he said this was because the caseworkers lied to the parents about what 

they needed to do to increase their visitation. Father also admitted he had an anger 

problem, but that he had completed an anger management class. While Father said the 

class had been helpful, Rinehart testified that he needed more help in controlling his 

anger.

Caseworkers reported that Father was very controlling of Mother. He would often 

talk over her, take the phone away from her, or answer questions directed at her. 

Similarly, caseworkers had concerns about Mother's ability to make parenting decisions 

without Father. A clinical assessment reported Mother "appeared deeply dependent on 

[Father], to an unhealthy degree," and Father "seemed to have a high need for control and 

fosters dependency in his relationship with Mother." Father denied controlling Mother. 

Instead, Father said he helped her when she needed it. Mother also did not believe Father 

was controlling her.

Mother and Father had been together since 2004 but they were not married. At a 

hearing in August 2018, the district court told Mother "she had to choose between [A.R.] 

or Father," so they separated a couple months later. They had planned to live together 
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after the case had ended, although Mother testified that she would not reunite with Father 

until he produced clean UAs.

Caseworkers raised doubts that the parents had separated. Deanna Atkinson, the 

family's support worker since June 2018, testified she recently had a conversation with 

Father about Mother's visits. Atkinson told Father she did not want to discuss Mother's 

visits with him because Mother and Father had been having separate visits for the past 

couple months. Father told Atkinson that he needed to know about Mother's visits 

because he coordinates their rides.

Atkinson recalled another occasion when she conducted a surprise visit at 

Mother's home. When she knocked on the door, she heard Father yell, "Who is it?" Father 

then looked out the window, but no one answered the door. Mother texted Atkinson a few 

hours later to ask if Atkinson had knocked on her door. Mother said she did not answer 

because she was in the shower. Although Atkinson testified that she was not necessarily 

concerned Father was there, she was concerned that she was not allowed access to the 

home.

Father testified he still had contact with Mother after they separated. Their 

separate visits were scheduled consecutively, so he saw her at visits with A.R. He also 

admitted that he stopped by her apartment to check on her and see if she needed anything 

for the children. Mother testified she still asked Father to come over to talk about the 

children.

Father owned a bounty hunting business for 21 years. In 2018, he testified that he 

earned $1,000. In 2016, due to a change in licensing requirements for bounty hunters, 

Father was unable to obtain a license because he had an Illinois felony conviction for 

aggravated criminal sexual abuse. Father testified that he had planned to present proof of 
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employment at the trial, but he had accidentally left the document at home. Father never 

provided proof of employment.

Mother was not employed but she received disability benefits due to having 

cerebral palsy. She planned to support her children with those benefits. Mother had 

investigated finishing high school in order to obtain employment. She did not know how 

much it cost to raise a child, but she planned on obtaining that information from 

caseworkers.

Mother testified that she was taking medication for depression and anxiety. She 

started individual therapy in January 2018 but stopped after three visits. According to 

Mother, she became ineligible for medical benefits and insurance would not cover the 

expense. Recently, Mother started individual therapy again, but she missed several 

appointments due to buses being late. During this proceeding her father died, and Mother 

completed a grief counseling class. Her clinical assessment indicated that she may have 

cognitive deficits. The assessment also reported a diagnosis of dependent personality 

disorder, although Mother insisted that she could do things by herself.

Father testified that he has bipolar disorder. He had previously been on 

medication, but he stopped taking it more than 20 years ago because he did not think it 

was necessary. Father completed a medical evaluation in 2018 without any 

recommendations for medication.

Mother had lived at her current residence for six months, and she had lived at her 

previous residence for two to three years. Although Father had previously lived with 

Mother, he moved out when the two separated in October 2018. Father was living for free 

in a rental property until the landlord could find a paying tenant.
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Caseworkers testified that Father had not completed several court orders and had 

not demonstrated any secondary change. While Mother had demonstrated primary change 

by completing all her court orders, she had not demonstrated secondary change. 

Caseworkers still had concerns about her relationship with Father and whether she could 

parent on her own. Mother appeared to have separated from Father in order to comply 

with the district court's order, not because she had any concerns regarding Father.

Rinehart and another caseworker recommended termination. Their primary 

concern with Father was his inability to produce a drug-free UA. Their primary concern 

with Mother was her relationship with Father. Rinehart acknowledged, however, that she 

had not worked with Mother since November 2018, so her situation may have changed.

Atkinson was unsure about her recommendations regarding termination. She 

testified that she could probably recommend termination of Father's rights because he 

still had positive UAs. As for Mother, Atkinson had concerns about whether she could 

parent alone, and she did not know if this would improve over time. She acknowledged, 

however, that Mother had made some progress since separating from Father.

After considering the evidence, the district court terminated the parental rights of 

Mother and Father. The court found both parents presently unfit and unlikely to become 

fit in the foreseeable future. The court also found it was in A.R.'s best interests to 

terminate the parental rights. Mother and Father appeal.

ISSUES RELATING TO FATHER'S DUE PROCESS RIGHTS

For the first time on appeal, Father contends his due process rights were violated 

when the district court allowed him to proceed pro se without appointing substitute 

counsel or informing him of the dangers of self-representation. The record does not show 

when Father was originally appointed counsel, but Judy Fowler entered her appearance as 
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appointed counsel at the adjudication hearing in April 2017. About a year later, during a 

review hearing, the following colloquy took place:

"MS. FOWLER: I would advise the Court, I have given you a copy of a letter—

a note that my client wrote to me this afternoon requesting a new attorney be—actually, 

that I no longer represent.

"THE COURT: [Father].

"[FATHER]: Yes, Your Honor.

"THE COURT: What concerns do you have with Ms. Fowler?

"[FATHER]: The concerns I have with Ms. Fowler, Your Honor, is [Mother's] 

attorney gives her privileged information that my attorney doesn't tell me, as our son 

acting out after phone calls, after visits. I'm not being told that information.

"As of February 22nd, when we had court, [Mother's] attorney stood up and said 

that they were interested in getting the child returned to his mother. My attorney did not 

stand up and correct that. Therefore, Your Honor, I would like to represent myself in 

court instead of having Ms. Fowler do it.

"THE COURT: If you want to represent yourself, that's your right.

"Ms. Fowler, thank you for the service you have given to the court. I am going to 

excuse you from further representation on this case. [Father] can represent himself."

Father's note to Fowler was not included in the record on appeal. We observe that 

the district court did not inquire of Fowler about the contents of the note, whether she had 

attempted to mitigate Father's concerns regarding her representation, and whether, in her 

opinion, there was a breakdown in the attorney-client relationship. Moreover, the district 

court did not question Father regarding whether the instances he cited in his note 

represented a breakdown in the attorney-client relationship or whether a substitute 

counsel might be appropriate. Finally, the district court did not make inquiry of Father to 

determine if he knowingly waived his statutory right to counsel.

Father represented himself for the rest of the proceedings, including during the 

termination hearing in January 2019.
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Father now argues the district court should have appointed substitute counsel. 

Alternatively, he argues the court should have informed him of the dangers of selfrepresentation. In short, Father contends the district court denied him procedural due 

process.

The State objects to our consideration of Father's due process issue: "Father has 

failed to comply with Rule 6.02(a)(5). He does not acknowledge that the argument he 

now seeks to raise was never before the district court, let alone articulate an exception to 

the general rule on appealability."

It is undisputed that Father did not raise this issue before the district court. 

Generally, issues not raised before the district court may not be raised on appeal. See 

State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several exceptions to 

this general rule, however, including: (1) the newly asserted theory involves only a 

question of law arising on proved or admitted facts and is finally determinative of the 

case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent 

denial of fundamental rights; and (3) the judgment of the trial court may be upheld on 

appeal despite its reliance on the wrong ground or having assigned a wrong reason for its 

decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

While there are exceptions to the general rule, an appellant must explain why an 

issue should be considered for the first time on appeal. As provided in State v. Williams, 

298 Kan. 1075, Syl. ¶ 4, 319 P.3d 528 (2014):

"Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39-40) provides that a 

party briefing an issue on appeal must make a reference to the specific location in the 

record on appeal where the issue was raised and ruled upon. If the issue was not raised 

below, there must be an explanation why the issue is properly before the court. A party 

failing to explain why an issue being raised for the first time on appeal is properly before 

the court risks having that issue deemed waived or abandoned."
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Of particular relevance to the issue before us, in State v. Godfrey, 301 Kan. 1041, 

350 P.3d 1068 (2015), the defendant in a criminal case sought to raise a constitutional 

due process argument for the first time on appeal. Our Supreme Court, citing Rule 

6.02(a)(5), held that it

"requires an appellant raising a constitutional issue for the first time on appeal to 

affirmatively invoke and argue an exception to the general rule that such claims may not 

be raised for the first time on appeal. Failure to satisfy Rule 6.02(a)(5) in this respect 

amounts to an abandonment of the constitutional claim." 301 Kan. 1041, Syl.

Moreover, citing Williams, the Supreme Court reiterated, Supreme Court "Rule 

6.02(a)(5) means what it says and is ignored at a litigant's peril." Godfrey, 301 Kan. at 

1043. Godfrey's constitutional due process claim was not reviewed by our Supreme 

Court.

Father's failure to comply with Supreme Court Rule 6.02(a)(5) is especially 

noteworthy since, although the State objected to this failure in its appellee's brief, Father 

did not file a reply brief to answer the State's objection and inform us as to the relevant 

exception that would warrant our review of the due process issue for the first time. 

Father's omission in this regard is similar to the appellant's failure to file a reply brief in 

Godfrey. See 301 Kan at 1044.

Father's failure to comply with Supreme Court Rule 6.02(a)(5) is consequential. 

We conclude this failure constitutes an abandonment of the issue, a procedural bar, and, 

as a result, we decline to consider the due process issue.

There is a second reason why we are not considering this due process issue. As the 

State notes in its briefing, assuming that Father's due process rights were violated, Father 

has not asserted or briefed that prejudice resulted from this constitutional infirmity. On 
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the other hand, the State has persuaded us that if there was a due process violation, given 

the factual circumstances of this case it was harmless error.

When an error infringes on a party's federal constitutional rights, a court will 

declare a constitutional error harmless only when the party benefiting from the error 

persuades the court "beyond a reasonable doubt that the error complained of will not or 

did not affect the outcome of the trial in light of the entire record, i.e., proves there is no 

reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 

569, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 

L. Ed. 2d 705 [1967]).

Was Father prejudiced by his pro se representation? At the outset, we note that 

through most of this litigation Father was not pro se but was represented by Fowler who 

was able to provide advice to Father about the critical importance of complying with the 

case plan objectives and court orders in order to avoid parental termination.

As discussed later in this opinion, at the time of the termination hearing, Father's 

pro se representation did not affect the outcome of the termination hearing because the 

evidence on several termination factors was uncontested and overwhelming. For 

example, Father's UAs repeatedly showed that he was using marijuana and Father 

acknowledged that he had not provided proof of employment. He also acknowledged his 

bipolar disorder and anger problems. During the lengthy litigation, Father showed a 

persistent lack of effort to adjust his parental circumstances and conduct to meet the 

needs of A.R. Father also substantially failed to comply with the court-ordered case plan 

designed to integrate A.R. into the parental home.

While an attorney undoubtedly would have mounted a better defense, given the 

clear and convincing evidence that Father was unfit to parent, we are convinced beyond a 
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reasonable doubt that any claimed due process error Father complains of did not affect 

the outcome of the termination hearing in light of the entire record. See 292 Kan. at 569.

In summary—assuming without deciding that the district court violated Father's 

due process rights—given Father's failure to claim or brief prejudice, and the State's 

showing that the claimed error did not affect the outcome of the trial in light of the entire 

record, we conclude that any error was harmless. As a result, there is no need to address 

the merits of the due process issue for the first time on appeal.

STANDARDS OF REVIEW AND LAW RELATING TO TERMINATION OF PARENTAL RIGHTS

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). Given the 

inherent importance and unique character of that relationship, the right has been deemed 

fundamental. Accordingly, the State may extinguish the legal bonds between parent and 

child only upon clear and convincing proof of parental unfitness. K.S.A. 2019 Supp. 38-

2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).

As provided in K.S.A. 2019 Supp. 38-2269(a), the State must prove the parent is 

unfit "by reason of conduct or condition" making him or her "unable to care properly for 

a child" and that the circumstances are "unlikely to change in the foreseeable future." The 

statute contains a nonexclusive list of nine conditions that singularly or in combination 

constitute unfitness. K.S.A. 2019 Supp. 38-2269(b). If a parent no longer has physical 

custody of a child, the statute lists four other factors to be considered K.S.A. 2019 Supp. 

38-2269(c).

In reviewing a district court's determination of unfitness, an appellate court must 

be convinced, based on the full evidentiary record considered in a light favoring the State 
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as the prevailing party, that a rational fact-finder could have found that decision "highly 

probable, i.e., [supported] by clear and convincing evidence." In re B.D.-Y., 286 Kan. at 

705. The appellate court may not weigh conflicting evidence, pass on the credibility of 

witnesses, or otherwise independently decide disputed questions of fact. 286 Kan. at 705. 

In short, any conflicts in the evidence must be resolved in favor of the State.

In considering the foreseeable future, courts should use "child time" as the proper 

measure. As the revised Kansas Code for Care of Children, K.S.A. 2019 Supp. 38-2201 

et seq., recognizes, children experience the passage of time in a way that makes a month 

or a year seem considerably longer than it would for an adult, and that different 

perception typically points toward a prompt, permanent disposition. K.S.A. 2019 Supp. 

38-2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re G.A.Y., 

No. 109,605, 2013 WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion) ("'child 

time'" differs from "'adult time'" in care proceedings "in the sense that a year . . . reflects 

a much longer portion of a minor's life than an adult's").

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. 2019 Supp. 38-2269(g)(1). As 

directed by the language of K.S.A. 2019 Supp. 38-2269(g)(1), the district court gives 

"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. See In 

re R.S., 50 Kan. App. 2d at 1116. The assessment of the child's best interests is entrusted 

to the district court acting within its sound judicial discretion. 50 Kan. App. 2d at 1115-

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An appellate court reviews the best interest decision for 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. 
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See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 

P.3d 1106 (2013); Ward, 292 Kan. 541, Syl. ¶ 3.

TERMINATION OF FATHER'S PARENTAL RIGHTS

Father contends the district court's finding of unfitness was not supported by clear 

and convincing evidence. He asserts the State did not present any evidence that his 

mental health issues or drug use affected his parenting ability. While he does not deny the 

initial findings of physical neglect, Father claims the State did not present evidence of 

ongoing abuse or neglect at the time of trial. Finally, in response to his failure to 

complete case plan tasks, he claims the tasks were either unreasonable or reasonable 

efforts did not help him achieve those tasks.

At the conclusion of the termination hearing, the district court made a general 

finding that "[Father's] testimony is not credible to this Court." The district court found 

Father was unfit to parent A.R. under six separate subsections of K.S.A. 2019 Supp. 38-

2269. We will separately address the district court's findings as they relate to individual 

subsections.

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

Under K.S.A. 2019 Supp. 38-2269(b)(1), a district court may terminate parental 

rights when clear and convincing evidence shows the presence of "[e]motional illness, 

mental illness, mental deficiency or physical disability of the parent, of such duration or 

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

emotional needs of the child."

The district court found Father unfit under this factor because he was diagnosed 

with bipolar disorder and stopped taking medication in 1997. The court also found that 
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Father's demeanor in the courtroom showed why caseworkers had concerns regarding his 

anger management.

The evidence shows that Father had an emotional or mental illness, because he 

admitted to having bipolar disorder and anger problems. Father testified that he stopped 

taking medication for his bipolar disorder because he felt it was under control. Reports 

show that Father completed a clinical assessment in October 2018 recommending 

individual therapy and medication management. Rinehart testified at trial that "[i]t's very 

difficult for someone with bipolar to manage without medication." However, after Father 

completed a medication evaluation in December 2018, he was not recommended for any 

medications.

Regarding Father's anger, he acknowledged that he had an anger problem, but 

believed the situation was helped by completing an anger management class. Rinehart 

testified that she believed Father needed "more than that."

Although Father had a diagnosis of bipolar disorder and an anger management 

problem, we are not convinced there is clear and convincing evidence that these mental 

health conditions, alone, rendered Father unfit to care for A.R. See In re J.L., No. 

110,993, 2014 WL 4627604, *6 (Kan. App. 2014) (unpublished opinion) (reversing 

district court because evidence did not show parent's mental health issues rendered her 

unable to care for child).

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

Under K.S.A. 2019 Supp. 38-2269(b)(3), a district court may terminate parental 

rights when clear and convincing evidence shows "the use of intoxicating liquors or 

narcotic 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 child."
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Regarding this factor, the district court found most, if not all, of Father's UAs 

tested positive for marijuana, including a UA he submitted on the day of trial. The court 

also found Father had given "inconsistent and unbelievable reasons" for positive drug test

results. The district court emphasized in August that it had admonished Father that he 

needed to produce clean UAs. The district judge added, "I cannot put a child back into a 

home until there is a commitment to sobriety. And even with termination on the line, you 

could not provide a clean UA."

On appeal, Father candidly concedes: "It is undisputed in this case that Father 

continued to test positive for marijuana." Instead, he briefly argues that no evidence 

showed a connection between his drug use and a failure to meet A.R.'s needs.

Our court has previously held a parent's drug use alone does not necessarily mean 

a child is a CINC or that a parent is unfit. See In re L.C.W., 42 Kan. App. 2d 293, 301, 

211 P.3d 829 (2009). But Father's case is distinguishable from In re L.C.W. where the

parents' drug use was unproven. 42 Kan. App. 2d at 299-00. Here, in contrast, Father 

tested positive for marijuana or THC about 20 times throughout the proceedings and 

never produced a clean UA.

This evidence clearly shows Father's persistent use of marijuana, and an 

unwillingness or inability to modify his addictive behavior. It is understatement to 

observe that a parent habitually under the influence of illegal drugs is unable to provide 

the essential care for a young child's physical, mental, and emotional needs. Moreover, 

Father's use of illegal drugs was done with full knowledge that his failure to produce 

clean UAs would result in continued limitations on his visitations with A.R., in addition 

to risking termination of his parental rights. As the State points out, "Father's actions 

prevented the visits from becoming unsupervised, lasting for a longer period of time, or 

occurring in the home." Still, Father was either unable or unwilling to curtail his illegal 
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drug use which adversely affected A.R.'s need for parental love, care, and attention 

during these proceedings.

Additionally, Father exhibited an awareness that his illegal drug use was 

detrimental to good parenting by providing inconsistent and farfetched accounts to 

explain his positive UA results. Father told one care provider that he smoked marijuana 

for pain relief, and he had had only three positive UAs. He told another care provider he 

was exposed to marijuana through his job as a bounty hunter. The district court noted, 

"[Father] testified that he quit in 2004, 15 years ago, and he hasn't used [marijuana] but 

still continues to have dirty UAs from that. It's unbelievable." Father was fully aware that 

his habitual use of marijuana was considered by the district court to be detrimental to 

reintegration with A.R.

In sum, the record shows Father routinely and persistently used marijuana during 

the 22 months this litigation was pending, despite knowing that his illegal conduct would 

limit his ability to visit his son and provide A.R. with essential love and emotional 

support. Even with the prospect of having his parental rights terminated, Father lied about 

his illegal drug use, did not curtail his use, and thereby exhibited his inability to care for 

A.R.'s physical, mental and emotional needs in a drug-free environment.

Clear and convincing evidence proved Father's parental unfitness under this factor.

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

Under K.S.A. 2019 Supp. 38-2269(b)(4), a district court may terminate parental 

rights when clear and convincing evidence shows "physical, mental or emotional" abuse 

or neglect or sexual abuse of a child. K.S.A. 2019 Supp. 38-2202(t) defines neglect as 

"acts or omissions by a parent . . . resulting in harm to a child, or presenting a likelihood 

of harm, and the acts or omissions are not due solely to the lack of financial means of the 
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child's parents or other custodian." Especially relevant to this appeal, neglect may include 

"[f]ailure to provide food . . . necessary to sustain the life or health of the child." K.S.A. 

2019 Supp. 38-2202(t)(1).

There was uncontroverted evidence that at the outset of this case, A.R. was 

neglected. The circumstances leading to the filing of the CINC petition were that A.R. 

was dangerously underweight because Mother and Father were not feeding him properly, 

and the parents left him in the care of a convicted child sex offender.

While Father does not contest that early on, A.R. had a failure to thrive due to 

Father's failure to provide sufficient nutrition to the child, Father contends this fact does 

not support a finding that he is presently unfit to parent A.R. Father points out that he 

completed parenting and nutrition classes. Additionally, he argues that the convicted sex 

offender was required to move out of the residence.

Father's neglect of A.R. at the beginning of this proceeding was sufficiently 

serious as to require A.R.'s hospitalization. The record also shows that Father had 

difficulty following basic feeding recommendations for A.R., especially when he diluted 

A.R.'s prescribed high-calorie formula with milk.

On the other hand, we agree with Father that the focus of our inquiry should be on 

whether "the parent is unfit" due to neglect of his son. (Emphasis added.) See K.S.A. 

2019 Supp. 38-2269(a), (b)(4); In re D.H., 57 Kan. App. 2d 421, 433-34, 453 P.3d 870

(2019). In this regard, subsequent to A.R.'s hospitalization, Father did take steps to 

successfully complete parenting and nutrition classes. Moreover, reports on Father's 

visitations with A.R. indicated that Father provided food to A.R. and encouraged him to 

eat.
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On this record, we are not persuaded there was clear and convincing evidence that 

at the time of the adjudication hearing, Father was unfit due to his neglect of A.R.

K.S.A. 2019 Supp. 38-2269(b)(7), K.S.A. 2019 Supp. 38-2269(b)(8), and K.S.A. 2019 

Supp. 38-2269(c)(3)

Finally, the district court found Father unfit under three separate but related 

subsections: K.S.A. 2019 Supp. 38-2269(b)(7), "failure of reasonable efforts made by 

appropriate public or private agencies to rehabilitate the family;" K.S.A. 2019 Supp. 38-

2269(b)(8), "lack of effort on the part of the parent to adjust the parent's circumstances, 

conduct or conditions to meet the needs of the child;" and K.S.A. 2019 Supp. 38-

2269(c)(3), "failure to carry out a reasonable plan approved by the court directed toward 

the integration of the child into a parental home."

The district court found that Father had not completed some of the court orders 

and case plan tasks in a timely manner. For example, Father did not complete drug 

treatment on time or participate in individual therapy. Father also failed to provide proof 

of employment, income, or documentation related to his employment. Although Father 

claimed employment as a bounty hunter for 21 years, he testified that he only earned 

$1,000 in income in 2018. At the hearing, Father testified that he had planned to present 

proof of employment in court, but he had accidentally left it at home.

There were other indications of Father's limited income given that he was living in 

a rental property free of charge until his landlord was able to find a paying tenant. Before 

the CINC petition was filed, caseworkers had to provide the family with groceries. 

During the proceedings, caseworkers gave bus passes to the family more than once. On 

one occasion, Father reported that he was donating plasma to obtain money to pay for an 

assessment.
20

In addition to not providing proof of employment, Father also failed to submit any 

clean UAs despite his achievement plan, which required that he produce three 

consecutive UAs before visitations with A.R. would increase. This is a substantial failure 

to comply with a reasonable plan aimed at reintegration. Despite these explicit 

instructions, Father submitted at least 17 positive UAs and four positive hair follicle tests 

between March 2017 and December 2018. He never produced a single clean UA. Despite 

the overwhelming evidence of continued drug use, Father simply denied using marijuana 

at all.

Lastly, the record is replete with examples of Father's anger problem and how it 

adversely impacted the implementation of the reintegration plan. Father was often 

uncooperative with and hostile towards caseworkers. For example, he was overheard 

saying he wanted to "knock the [expletive] out" of a caseworker. On one occasion, a 

caseworker commented that she had observed Father speaking to A.R. and Mother in a 

"rather harsh tone." The district judge also noted that he had observed Father's demeanor 

in the courtroom and, as a result, he could understand why caseworkers were concerned 

about his lack of anger control.

In summary, there was clear and convincing evidence to support the district court's 

legal conclusion that Father was unfit under K.S.A. 2019 Supp. 38-2269(b)(7); K.S.A. 

2019 Supp. 38-2269(b)(8); and K.S.A. 2019 Supp. 38-2269(c)(3). Although public and 

private agencies made reasonable efforts to rehabilitate Father, these efforts were for 

naught. During almost two years of litigation, Father showed a lack of effort to adjust his 

parental circumstances and conduct to meet the needs of A.R. Lastly, Father substantially 

failed to implement the court-ordered case plan designed to integrate A.R. into the 

parental home.

As provided in K.S.A. 2019 Supp. 38-2269(a), the State must prove the parent to 

be unfit "by reason of conduct or condition" making him or her "unable to care properly 
21

for a child" and that the circumstances are "unlikely to change in the foreseeable future." 

In reviewing the district court's determination of unfitness, we are convinced, based on 

four of the six factors found by the court, and the full evidentiary record considered in a 

light favoring the State, that a rational fact-finder could have found that decision "highly 

probable, i.e., [supported] by clear and convincing evidence." In re B.D.-Y., 286 Kan. at 

705.

Moreover, clear and convincing evidence also shows that Father is unlikely to 

change in the foreseeable future. A.R. had been in state custody for 22 months, almost 

half of his life. During those 22 months, Father has repeatedly failed to modify his 

behavior in order to complete important case plan tasks or comply with court directives. 

Given this history, it is unlikely Father's condition would improve in the foreseeable 

future based on child's time.

Finally, on appeal, Father does not challenge the district court's finding that 

termination is in the best interests of A.R. Still, the child was almost four years old at the 

time of the termination hearing. He was reportedly doing well in his placement. A 

reasonable person could agree that A.R. needed permanency with caretakers who would 

provide for his health, welfare and safety.

Accordingly, we affirm the termination of Father's parental rights to A.R.

TERMINATION OF MOTHER'S PARENTAL RIGHTS

Finally, Mother argues the evidence is insufficient to support the district court's 

finding that she is presently unfit to parent and will remain so for the foreseeable future. 

Mother also asserts the district court abused its discretion in finding that it was in A.R.'s 

best interests to terminate her parental rights.
22

The district court found Mother was unfit to parent A.R. under K.S.A. 2019 Supp. 

38-2269(b)(7), K.S.A. 2019 Supp. 38-2269(b)(8), and K.S.A. 2019 Supp. 38-2269(c)(3). 

While the district court found Mother unfit under three factors, it focused on one key fact 

to reach this conclusion—Mother had not ended her relationship with Father even though 

the court had ordered her to do so. The court found their separation was a "farce," and 

Mother had not exhibited secondary change because she did not personally feel the need 

to distance herself from Father.

At the termination hearing in January 2019, Mother testified that she did not 

believe that Father controls her or interferes in her expressing opinions or making 

decisions regarding A.R. Still, Mother testified that she complied with the district court's 

directive and separated from Father in November 2018. Although the parents do not 

reside together, Mother acknowledged that Father continues to support her with 

transportation and occasional meals. Mother testified that she still asked Father to come 

over to talk about the children. She indicated the separation would continue until Father 

maintains sobriety from illegal drug use.

Rinehart, who provided social work assistance until November 2018, testified that 

she did not advise Mother to separate from Father, but she attempted to explain to Mother 

about the district judge's directive of separation from Father. According to Rinehart, she

had no concerns that Mother would be able to pay for utilities and food. Rinehart had no 

contact with Mother after December 2018.

Atkinson, a family support worker, assisted the family since June 2018. She was 

concerned about Father's influence on Mother and testified to her uncertainty regarding 

whether termination was appropriate. Atkinson also testified Mother had made progress 

since separating from Father. Additionally, she stated her willingness to continue 

working on the case since Mother and Father's separation was so recent. By continuing 
23

the proceedings, she testified it would allow her to assess how Mother parents on her 

own.

Letitia Herrman, another social worker, testified that she was involved in the case 

since February 2018. She recommended termination, in part, because although the 

parents have separated, she was concerned if it is a real separation. According to 

Herrman, although Mother had made primary changes, she would need to see secondary 

changes—such as more consistency in attending therapy and maintaining her separation 

from Father. Herrman opined that it would take six months to determine if reintegration 

was still an option.

Turning to the statutory factors which the district court based its termination order 

on, we do not find evidentiary support for termination based on K.S.A. 2019 Supp. 38-

2269(b)(7), "failure of reasonable efforts made by appropriate public or private agencies 

to rehabilitate the family" or K.S.A. 2019 Supp. 38-2269(c)(3), "failure to carry out a 

reasonable plan approved by the court directed toward the integration of the child into a 

parental home." On appeal, the State candidly concedes: "The district court 

acknowledged that [M]other had completed the case plan tasks." Our independent review 

of the record persuades us that the agencies tasked with the responsibility to reintegrate 

Mother with A.R. performed well and, as a result, Mother substantially complied with her 

case plan tasks.

It is clear that the district court's primary basis for termination was K.S.A. 2019 

Supp. 38-2269(b)(8), "lack of effort on the part of the parent to adjust the parent's 

circumstances, conduct or conditions to meet the needs of the child;" Applying this 

factor, the evidence was mixed regarding whether Mother's separation from Father was 

sincere and intended to be long lasting.
24

Our reading of the evidence persuades us that while Mother was reluctant to 

separate herself from Father, given the short period of time between the separation and 

the termination hearing, we are unable to say it is highly probable that Mother was 

unlikely to maintain this separation in the foreseeable future. See K.S.A. 2019 Supp. 38-

2269(a). In particular, the testimony of Atkinson and Herrmann suggested that the short 

duration of the separation may not have been sufficient to evaluate the success of 

Mother's separation. Although Mother continues to have codependency issues, she had

been attending individual therapy.

Since Mother substantially complied with her case plan requirements and 

separated from Father two months prior to the termination hearing, we conclude there 

was not clear and convincing evidence that in the foreseeable future Mother would not 

continue to adjust her circumstances, conduct, or conditions to meet the needs of A.R. by 

continuing the separation from Father. Accordingly, we conclude the district court erred 

in ordering the termination of Mother's parental rights to A.R.

Affirmed in part, reversed in part, and remanded.

***

BURGESS, S.J., dissenting: I dissent. I agree with the majority's opinion except for 

the reversal of Mother's termination of parental rights. Mother's argument on appeal is 

that the district court lacked sufficient clear and convincing evidence of unfitness. 

Believing that there is sufficient clear and convincing evidence, I would affirm.

The mental health professionals involved with the case identified several issues 

regarding Mother. Predominant among them was Mother's low level of functioning, lack 

of insight, and a diagnosed dependent personality disorder. A person with such a 

diagnosis will sacrifice their own needs, wants, and necessities in order to maintain a 
25

relationship with another regardless of whether that relationship is healthy or not. In 

many instances that person is not only willing to sacrifice their own interests but also the 

needs, wants, and necessities of their children in order to stay in the relationship.

In this case, it is clear Mother's relationship with Father was beyond toxic. Father 

was domineering over mother, was aggressive and threatening with caseworkers, used 

drugs knowing his drug use was a major concern in the case, and essentially took no steps 

to change his behavior over the duration of the case. The record is replete with examples 

of Mother's lack of acknowledgment of her situation or any definitive efforts to remove 

herself and A.R. from Father's influence.

During the course of the case, there are many examples of Mother's failure to 

resolve her dependency on Father. There was a period she did not go to therapy. Father 

attempted to control Mother's interaction with the caseworkers, and she allowed it. 

Caseworkers observed that Mother was unable to make decisions without Father's input 

and she would defer decisions to him. Father communicated with caseworkers regrading 

Mother's appointments with doctors, therapists, and others for Mother. Mother stated that 

she did not believe Father controlled her. She remained in the relationship throughout the 

case until they "separated" two months before the termination hearing. Mother separated 

not because she acknowledged how Father's conduct prohibited reintegration but only 

because her attorney urged her to. The caseworkers testified that they did not believe the 

parties had, in fact, separated. During this two-month period, Father continued to arrange 

Mother's transportation, was regularly at Mother's residence, and arrived with Mother at 

her visits. Their lives were still clearly intertwined. Mother specifically testified that she 

intended to get back with Father after the case was over.

Mother did try to complete orders. But there is clear and convincing evidence that 

issues mother was facing at the inception of this case remained throughout the case and at 

the time of termination. Making the statement that she intended to continue her 
26

relationship with Father after the court was no longer involved clearly shows that Mother 

had not resolved her dependency issues or gained any insight on how unhealthy 

relationships impact her, let alone A.R. Even if Mother could separate from Father, which 

seems to be a longshot, without having thoroughly addressed her codependent personality 

disorder and without greater insight than she displayed over the course of this case, a risk 

continues that Mother and A.R. might find themselves in a situation no different than the 

one she has been in.

I believe that there was sufficient clear and convincing evidence to support the 

district court's finding of unfitness. I further believe that the district court's finding that 

the situation was unlikely to change and that it was in the best interest of the child to 

terminate parental rights was proper. This finding is based on the same evidence that the 

issues confronting Mother remained unresolved, in spite of the intervention offered to 

Mother over the duration of the case, and Mother's stated intention of continuing an 

unhealthy relationship with Father.