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NOT DESIGNATED FOR PUBLICATION

No. 126,612

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of K.S., K.R., K.S., and K.S.,

Minor Children. 

MEMORANDUM OPINION

Appeal from Saline District Court; JACOB PETERSON, judge. Submitted without oral argument. 

Opinion filed January 12, 2024. Affirmed.

Laurel M. Driskell, of Kennedy Berkley, of Salina, for appellant natural mother. 

Nathan L. Dickey, assistant county attorney, for appellee.

Before ATCHESON, P.J., MALONE and BRUNS,JJ.

PER CURIAM: The natural mother (Mother) of four minor children appeals the 

termination of her parental rights. On appeal, Mother contends that there is not sufficient 

evidence in the record to support the termination of her parental rights. She argues that 

there is insufficient evidence to find that she is unfit to parent her children. Based on our 

review of the record on appeal, we find that there is sufficient evidence to establish by 

clear and convincing evidence that Mother is unfit and that the condition of unfitness is 

unlikely to change in the foreseeable future. In particular, we find clear and convincing 

evidence in the record to support a finding of unfitness under K.S.A. 38-2269(b)(7) and

(b)(8). Moreover, we find that the termination of Mother's parental rights is in the best 

interests of the minor children. As a result, we conclude that the district court did not err 

in terminating her parental rights. Thus, we affirm.
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FACTS

On August 23, 2021, the Kansas Department of Children and Families (DCF) 

removed K.S. (born in 2012), K.R. (born in 2015), K.S. (born in 2018), and K.S. (born in 

2020) from the home of former foster parents with whom Mother had left them two days 

earlier. A few days later, the State filed a child in need of care (CINC) petition, and the 

district court entered an ex parte order placing the children into protective custody. In 

making this decision, the district court noted that the children had previously been in the 

custody of the State and had only returned to their Mother earlier that summer. 

At a temporary custody hearing held on September 1, 2021, the district court 

found probable cause to believe that the allegations in the CINC petition were true and

placed the children in the temporary custody of DCF. The following month, the district 

court adjudicated the four children to be in need of care. All four children were placed 

together in the home of foster parents who had cared for the children during a previous 

CINC case. They remained in that placement during the pendency of this case. 

At a permanency hearing held on October 6, 2022, the district court found that 

reintegration was no longer viable. A few weeks later, the State moved to terminate 

Mother's parental rights and later amended its motion on two occasions. The second 

amended motion was filed to add a previously unknown father as a party. However, the 

children's fathers are not parties to this appeal.

On April 26, 2023, the district court held an evidentiary hearing on the motion to 

terminate Mother's parental rights. At the hearing, the State presented the testimony of 

William Carr, a child protection specialist with DCF, who had investigated Mother and 

her living conditions. The State then called Lori McNelly, who is a permanency specialist 

and case manager with St. Francis Ministries. 
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McNelly testified about her work with the family since June 2022 as well as her 

development of a case plan in an attempt to reintegrate the children with Mother. 

McNelly testified that there were concerns with Mother's mental health, instability in her 

living arrangements, and inability to maintain employment. In McNelly's opinion, Mother 

had difficulty making parenting decisions "that were safe and appropriate for the 

children."

McNelly also testified about Mother's failure to complete the requirements of her 

case plan relating to seeking help for her mental health issues. McNelly testified that 

"[t]here would be gaps in between [Mother's] therapy that would be 8 weeks, 6 weeks, 7 

weeks, where she was not attending appointments. It got to the point where the Mental 

Health center canceled her appointments for her noncompliance and inconsistency and 

took her off the appointment schedule." 

Further, McNelly testified that Mother failed to complete family therapy as 

required by the case plan. In discussing Mother's inability to maintain stable housing, 

McNelly testified that Mother lived with a former boyfriend in his residence. McNelly 

described the living conditions as "volatile" and opined that "it's not a safe and stable 

home." Also, McNelly testified that although Mother and her boyfriend were required 

under the case plan to participate in couples counseling, they were unable to do so 

because the boyfriend failed to follow through with receiving individual therapy for his 

underlying issues. 

Additionally, McNelly testified that Mother failed to maintain consistent 

employment as required by the case plan. According to McNelly, Mother's employment 

was sporadic, and she never provided proof of income to show that she could adequately 

provide for the needs of her four children. McNelly also pointed out that Mother failed to 

complete parenting classes as required by the case plan. Although Mother went to two 
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classes, she failed to complete the course. McNelly also explained that Mother failed to 

follow up on locating appropriate childcare for the youngest child.

McNelly testified that Mother's visitation with the children was still supervised at 

the time of the termination hearing, and she had failed to complete a journal in which she 

would document her visits with the children and describe how she handled things. Based 

on her work with the family, McNelly opined that she "would be concerned for [the 

children's] safety and wellbeing" if reintegrated with Mother. McNelly was also 

concerned because Mother had not provided documentation that she was receiving 

mental health services that would be necessary for successful reintegration. 

Next, Mother testified on her own behalf regarding the case plan as well as what 

she had done to complete the assigned tasks. She testified regarding her living conditions, 

her employment, and her mental health. Even though she contended that she maintained a 

safe and stable living environment, Mother admitted on cross-examination that she had 

been arrested just a couple of days prior to the hearing. She testified that it was related to 

a "domestic violence case" but exercised her Fifth Amendment right not to testify about 

the details. Nevertheless, she testified that she intended to move out of her boyfriend's 

residence. Mother also testified on cross-examination that she had been arrested in the 

past month for driving under the influence (DUI) and admitted that it was not her first 

DUI. 

At the close of evidence, the district court reviewed the evidence on the record. 

After doing so, the district court concluded that the State had proven Mother's unfitness 

by clear and convincing evidence and that the condition is unlikely to change. The district 

court also concluded that the termination of Mother's parental rights "is in the best 

interest[s] of the children based on the children's physical, mental and emotional 

wellbeing." In reaching this conclusion, the district court found that "the children need

. . . stability."
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On May 12, 2023, the district court entered a journal entry setting forth the reasons 

for its decision. In the journal entry, the district court found that "[t]he evidence is clear 

and convincing that [Mother is] unfit by reason of conduct or condition which renders 

[her] unable to care properly for [the children] and the conduct or condition is unlikely to 

change in the foreseeable future." Specifically, the district court found that its 

determination was based on K.S.A. 38-2269(b)(1), (b)(7), (b)(8), and (b)(9). Finally, the 

district court determined that "termination of parental rights is in the best interests of the 

[children] and the physical, mental or emotional needs of the [children] would best be 

served by termination of parental rights."

Thereafter, Mother timely appealed.

ANALYSIS

The sole issue presented on appeal is whether there is sufficient evidence in the 

record to support the district court's decision to terminate Mother's parental rights. 

Mother contends that she reasonably carried out the requirements of the case plan 

approved by the district court. Likewise, she contends that the record lacks sufficient 

evidence of her unfitness to parent. In response, the State contends that the district court 

properly terminated Mother's parental rights based upon clear and convincing evidence of 

her unfitness. 

After a child has been adjudicated to be a child in need of care, a district court may 

terminate a parent's rights if it finds by clear and convincing evidence that the parent is 

unfit by reason of conduct or condition which renders the parent unable to properly care 

for the child and that the conduct or condition of unfitness is unlikely to change in the 

foreseeable future. K.S.A. 38-2269(a). On appeal, a district court's decision to terminate a 

parent's rights will be upheld if—after reviewing all the evidence in the light most 

favorable to the prevailing party—we find that the district court's factual findings are 
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supported by clear and convincing evidence. In reviewing the evidence, we are not to 

reweigh conflicting evidence, pass on the credibility of witnesses, or redetermine 

questions of fact. In re Adoption of Baby Girl G., 311 Kan. 798, 806, 466 P.3d 1207 

(2020), cert. denied 141 S. Ct. 1464 (2021). 

In its journal entry, the district court found that the evidence supported its findings 

that Mother was unfit under K.S.A. 38-2269(b)(1), (b)(7), (b)(8) and (b)(9), which state: 

"(b) In making a determination of unfitness the court shall consider, but is not 

limited to, the following, if applicable: 

(1) Emotional 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;

. . . .

(7) failure of reasonable efforts made by appropriate public or private agencies to 

rehabilitate the family;

(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

(9) whether, as a result of the actions or inactions attributable to the parent and

one or more of the factors listed in subsection (c) apply, the child has been in the custody 

of the secretary and placed with neither parent for 15 of the most recent 22 months 

beginning 60 days after the date on which a child in the secretary's custody was removed 

from the child's home."

We pause to note that the district court discussed several other factors on the 

record at the conclusion of the termination hearing. But a signed order of a district court 

controls over a corresponding oral recitation in civil cases. Steed v. McPherson Area 
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Solid Waste Utility, 43 Kan. App. 2d 75, 87, 221 P.3d 1157 (2010). Our court has

consistently applied this principle to district court decisions under the Revised Kansas 

Code for Care of Children, K.S.A. 38-2201 et seq. See In re R.J., No. 122,230, 2021 WL 

137346, at *10 (Kan. App. 2021) (unpublished opinion) (termination of parental rights); 

In re I.G., No. 122,010, 2020 WL 2296918, at *2 (Kan. App. 2020) (unpublished 

opinion) (termination of parental rights); In re N.M., No. 118,652, 2018 WL 2749803, at 

*8 (Kan. App. 2018) (unpublished opinion) (child in need of care finding).

Accordingly, we will look to the reasons set forth by the district court in its journal 

entry. Specifically, we will focus on the district court's determination that Mother is unfit 

under K.S.A. 38-2269(b)(7) and (b)(8). Based on our review of the record on appeal in a 

light most favorable to the State as the prevailing party, we find that that there is clear 

and convincing evidence upon which one could conclude that Mother failed to make 

reasonable efforts to complete the assigned tasks under the case plan to rehabilitate the 

family. See K.S.A. 38-2269(b)(7). In addition, we find that there is clear and convincing 

evidence upon which one could conclude that Mother displayed a lack of effort to adjust 

her circumstances or conduct to meet the basic needs of her children. See K.S.A. 38-

2269(b)(8). 

Mother does not dispute that DCF, St. Francis Ministries, and the district court 

made reasonable efforts to reintegrate the children into her care. Rather, she argues that 

she made significant progress in completing the assigned tasks in the case plan. In other 

words, she asserts that she has not failed to make reasonable efforts to complete the 

requirements of the case plan approved by the district court. 

Nevertheless, a review of the record on appeal reveals that there is evidence that is 

both clear and convincing upon which a reasonable fact-finder could conclude that 

Mother failed to complete the tasks assigned to her in the case plan. In particular, there is 

evidence in the record which is sufficient to establish that Mother failed to maintain 
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stable employment and a safe housing situation. Although we have no doubt that Mother 

loves her children and desires reintegration with them, the record clearly and 

convincingly reveals that many of the tasks assigned to her remained uncompleted. 

While Mother highlights the few positive steps she took to complete the case plan, 

she downplays the significant evidence presented by the State to establish her unfitness. 

As the record reveals, this case has been going on for a long period of time and several of 

the children had previously been in the State's custody for nearly two years. In fact, they 

had only been reintegrated with Mother for about two months before she left the children 

with their foster parents. Thus, we conclude that the district court did not err in 

determining that Mother did not make the required efforts to satisfy K.S.A. 38-

2269(b)(7). 

Turning to K.S.A. 38-2269(b)(8), a review of the record reveals not only Mother's

lack of compliance with the tasks assigned under the case plan but also her continuing to 

live in an unstable environment with her boyfriend and—only days before the termination 

hearing—being arrested on a charge relating to a domestic violence case. In addition, 

shortly before the hearing she had been arrested for a DUI. She has not adjusted her 

circumstances or conduct to meet the needs of her children. Accordingly, when viewed in 

a light most favorable to the State, we do not find it to be unreasonable for the district 

court to find by clear and convincing evidence that Mother failed to change her conduct 

or conditions in order to meet the needs of her minor children.

Because we conclude that the district court did not err in finding by clear and 

convincing evidence that Mother was unfit under K.S.A. 38-2269(b)(7) and (b)(8), it is 

unnecessary for us to review whether there is also clear and convincing evidence in the 

record to support the district court's determination that Mother was also unfit under 

K.S.A. 38-2269(b)(1) and (b)(9). This is because any one of the statutory factors—

standing alone—can be sufficient to find a parent to be unfit. See K.S.A. 38-2269(f).
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Furthermore, we note that Mother does not challenge the district court's determination 

that her unfitness is unlikely to change in the foreseeable future or that the termination of 

her parental rights is in the best interests of the children. 

In summary, we recognize that Mother desires reintegration with her children. 

Likewise, we do not discount her good intentions wanting to now take the steps necessary 

to be reintegrated with her children. "But we must judge these cases based mostly upon 

actions, not intentions, and we must keep in mind that a child deserves to have some 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). Consequently, we affirm the 

district court's decision to terminate Mother's parental rights in this case.

Affirmed.