In re C.K.

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NOT DESIGNATED FOR PUBLICATION

No. 115,755

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of
C.K., YOB 2002, a female, and
R.A.K., YOB 2005, a male.

MEMORANDUM OPINION


Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed March 31, 2017.
Affirmed.

Napoleon S. Crews, of Crews Law Firm, of Lawrence, for appellant natural mother.

Jody M. Meyer, of Lawrence, for appellant natural father

Kate Duncan Butler, assistant district attorney, and Charles E. Branson, district attorney, for
appellee.

Before GARDNER, P.J., PIERRON and ATCHESON, JJ.

Per Curiam: C.K. (born in 2002) and R.A.K. (born in 2005) are the natural
children of K.W. (Mother) and W.K. (Father). The children were twice adjudicated
children in need of care. The district court held a termination trial on August 10-14, 2015,
September 24, 2015, and October 28-29, 2015. The court terminated Mother's and
Father's parental rights, and both parents appeal.

Mother and Father divorced in 2011, and the children lived with Mother while
Father worked overseas in Iraq. In November 2011, the Department for Children and
Families (DCF) took C.K. and R.A.K. into protective custody, and a court adjudicated
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them children in need of care (CINC) on February 6, 2012. The basis for this first CINC
petition was R.A.K. had accused Mother's boyfriend, W.R., of sexual abuse. DCF
substantiated W.R. for abuse against R.A.K. W.R. appealed the finding, but DCF upheld
it. A jury acquitted W.R. of the associated criminal charges in October 2012. The
children reintegrated with Mother in January 2013, and the CINC case concluded in July
2013. As part of the custody order and parenting plan concluding the CINC case, Mother
was instructed not to allow contact between the children and W.R. Father stopped going
overseas to Iraq in November 2012.

In September 2013, R.A.K. told a social worker for DCF that W.R. was living in
his home. He identified W.R. as his dad. He said W.R. was aggressive and "yells and
stuff like that." The same social worker interviewed C.K. C.K. denied W.R. was living in
their home. Mother denied W.R. was in her home.

On April 27, 2014, law enforcement responded to a domestic disturbance call at
Mother's home. During an argument, W.R. had "head-butted" Mother and broken a glass
door. Mother had a large swollen knot on her head. Mother told police W.R. was her
fiancé, and he had been living with her since July 2013. W.R. told police he had been
living with Mother since November 2012.

On May 2, 2014, a DCF social worker interviewed R.A.K. and C.K. about the
incident. R.A.K. stated W.R. lived in their home. He said he had heard Mother and W.R.
fighting sometimes. C.K. said W.R. had been living in their home since August 2013, and
Mother and W.R. often argued. The DCF social worker interviewed Mother who said she
and W.R. had gotten in a fight at a bar, and W.R. had followed her home. Mother said she
did not know how she got the knot on her head or how the glass door shattered. She
denied that W.R. was living with them. When confronted with the children's stories, she
said R.A.K. was not credible and did not know timelines.

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On May 5, 2014, the district court entered an ex parte order placing C.K. and
R.A.K. in custody with DCF. In the order, the court found Mother had failed to protect
her children by allowing them to be around W.R., and Father was unavailable because he
was in a federal prison at the time. On May 8, 2014, the State filed a petition seeking to
have C.K. and R.A.K. adjudicated as CINCs. On July 25, 2014, the district court entered
a temporary custody order keeping the children in the temporary custody of DCF. Father
was still incarcerated at the time. The court scheduled a formal hearing on October 29,
2014.

On October 29, 2014, each parent and the guardian ad litem entered a no contest
statement to the allegations contained in the petition that the children were CINCs. The
district court proceeded to hear evidence regarding the disposition. The court then took
the disposition under advisement in order to review the record in the prior CINC case.

On November 17, 2014, the State filed a motion for the court to consider
additional information. The State noted that Mother had testified at the October hearing
that she was no longer in a relationship with W.R. and had not been in a relationship with
him for 6 months. Since the hearing, however, a DCF attorney had seen Mother and W.R.
together at a social gathering. The attorney was familiar with Mother and W.R. because
she had handled the appeal of W.R.'s DCF substantiation.

On March 12, 2015, the district court issued its ruling regarding the disposition.
The court determined that reintegration with either parent was no longer a viable option
and that it was in the children's best interests that the case plan be adoption. The court
ordered the district attorney to file a motion to terminate parental rights within 30 days
pursuant to K.S.A. 2015 Supp. 38-2255(f).

The State filed a motion to terminate Mother's and Father's parental rights to C.K.
and R.A.K. on April 13, 2015. The State filed an addendum to the motion indicating it
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intended to apply a presumption of unfitness to Mother. The termination trial was held on
August 10-14, 2015, September 24, 2015, and October 28-29, 2015.

The permanency plan for Mother required her to stay in contact with agencies and
update her contact information as necessary; sign all necessary releases; complete
parenting and psychological evaluations and follow all recommendations; stay actively
involved in all medical, mental health, school, etc. appointments for R.A.K. and C.K.;
avoid all contact with W.R. and not allow W.R. to have contact with the children; and
maintain safe and stable housing and adequate employment.

The permanency plan for Father required him to stay in contact with agencies and
update his contact information as necessary; sign all necessary releases; complete
parenting and psychological evaluations and follow all recommendations; stay actively
involved in all medical, mental health, school, etc. appointments for R.A.K. and C.K.;
and maintain safe and stable housing and adequate employment.

At the termination trial, Mother testified she was living with W.R. in Lawrence.
W.R. had lived with her off and on from January to July 2013 and moved back in with
her at the end of the summer in 2013. He had moved back in with her less than 2 months
after she signed a parenting plan acknowledging she was not to allow W.R. to be around
the children. Mother admitted she was in a relationship with W.R. at the time of the
October 29, 2014, hearing. She said she lied at that hearing because she wanted her
children back.

Mother testified she was in shock when R.A.K. first told her W.R. had sexually
abused him, and she and W.R. called the police together. Over time, however, she started
to question the allegations. She claimed there was conflicting DNA evidence. She said
she had watched the video of R.A.K.'s interview with police, and R.A.K. denied the sex
abuse had occurred. She could not remember exactly how R.A.K. denied the allegations
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in the video, but she said he changed his story five times. She said R.A.K. denied the
allegations on the stand at trial, but she admitted she had not watched the trial.

Mother had not had any conversations with R.A.K. about the incident since he first
made the allegations, even though R.A.K. remained in her custody for several weeks
afterward. She said R.A.K. had an active imagination and had said questionable things
before. She thought the allegations were possibly a ploy by Father to split up Mother and
W.R. Mother stated she believed W.R. over R.A.K.

Mother testified she was currently working as a massage therapist and making at
least $2,000 a month. She had spent 3 years in the military, had worked for a prison for 1
year, and had run a cleaning business from 2012-2014. She had worked at American
Eagle and a strip club in Topeka. Because she had been in the military, she received VA
benefits. At the time of the trial, she was renting a four-bedroom house for $900 a month.
For a period of time, starting in January 2012, Father had been sending money to Mother
to cover living costs.

Mother told the district court she had been diagnosed with appendix cancer in
September 2014 and had taken 2 months off work. She had two surgeries and went
through a round of chemotherapy. The cancer was currently in remission.

Mother testified that she wanted her family back. By "family," she meant C.K.,
R.A.K., and W.R. She wanted to reintegrate with her children, but she knew that part of
her case plan required her not to have a relationship with W.R. She acknowledged that in
this respect she had not been following the district court's orders.

The case managers and other service providers working with the family did not
express concern regarding Mother's general parenting ability. She provided structure at
home and attended medical appointments. Rather, they consistently expressed concerns
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regarding her ability to keep her children away from W.R. According to Rebecca Cruse,
the family's case manager from December 2011 until March 2012, Mother consistently
believed from the beginning of the case that W.R. had not sexually abused R.A.K. Sally
McVey, a family support worker from June 2015 until August 2015, testified Mother said
W.R. had been found not guilty, so there was no reason he should not be around her
children. Others expressed concern that Mother may have attempted to coach or influence
R.A.K. to deny his earlier allegations during the course of the trial.

Throughout the case, Mother routinely denied she was in a relationship with W.R.
or that W.R. was living with her. She told the children not to tell service providers about
W.R. Nancy Moses, the family's aftercare worker from January 2013 until August 2013,
visited Mother's home at least 18 times in response to suspicions that W.R. was in the
home, but she never found any indication that a man was living in the home. This
contradicted W.R.'s testimony that they never hid the fact he was living with Mother
during this time.

Father testified that since returning from Iraq in November 2012, he had three
criminal convictions. He was convicted of possession of a firearm while under indictment
stemming from an incident in March 2013. He served 18 months in federal prison on that
charge and was released in September 2014. When he was released, he still had a pending
DUI charge from 2011. He spent 60 days in the Leavenworth County Jail on that charge.
He then spent almost a month in the Shawnee County Jail on a battery charge. The
battery charge arose from an incident in February 2013 when Father tried to hit W.R.
with his car.

At the time of the termination trial, Father was on federal probation until
September or October 2017. He was on probation in Shawnee County, one of the terms
of which was that he must stay away from W.R. He was on municipal probation out of
Lansing. He had a suspended license due to the DUI. Father testified he had no new
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criminal charges in the past 2 years. Service providers, however, had seen Father driving
on multiple occasions despite his suspended license. Later in the trial, Father admitted his
probation out of Lansing had been revoked and reinstated. The record is not clear on
when Father's probation was revoked. He admitted his probation was revoked on
December 9, 2015. However, he testified to this on October 29, 2015. His probation was
revoked because he was not reporting as directed, he did not provide proof of substance
abuse treatment, and he was not making payments to the court. He failed to show for a
meeting with his probation officer on September 28, 2015.

Father testified he received an honorable discharge from the military in 2010, and
he was currently serving in the U.S. Army Reserves. Since being released from prison in
September 2014, he had a job at Applebee's and another at a locally owned restaurant.
During his first time on the stand in August 2015, he said he currently had a part-time job
at Wal-Mart and a part-time job helping veterans write resumes. Father testified again in
October 2015. At that time, he had been working at Carrabba's Italian Restaurant for 6
weeks, which was his longest period of employment since being released from prison in
September 2014. He had never actually worked at Wal-Mart, as he previously stated,
because Wal-Mart later did a background check and rescinded his employment offer.

Father received discharge papers while at court on October 29, 2015. The U.S.
Army Reserves discharged Father under other than honorable circumstances. Father
testified the discharge came as a surprise, though he had previously inquired about the
possibility of a discharge.

Since being released from federal prison in September 2014, Father had lived in a
number of different locations. He spent some time at a half-way house before moving to
the domiciliary at the VA. The domiciliary later expelled him due to an incident
involving another resident. He then moved into an apartment with a friend in
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Leavenworth and then moved with that friend into a house in Leavenworth. By October
2015, Father had moved in with a new girlfriend in Blue Springs, Missouri.

Since the divorce, Father had not cared for the children for more than a day or two
at a time. Before November 2012, he spent a significant amount of time working in Iraq.
During the first CINC case, Father indicated he would move back to the United States if
necessary. He preferred, however, to continue working in Iraq because he was earning a
high salary and wanted Mother to continue caring for the children. Nevertheless, he
complained that KVC was making too many demands of Mother as she was a single
parent. According to Father, KVC could not expect Mother to attend the children's school
and medical appointments and hold a full-time job. One service provider noted that
Father made efforts to be involved with his children to the extent possible while he was in
Iraq.

Service providers expressed a number of concerns regarding Father's parenting
ability. Jean Dirks, a psychologist who performed psychological and parenting
evaluations of both parents, noted Father's biggest parenting drawbacks were his decision
to take a high paying job overseas over caring for his children and his desire that Mother
should have continued contact with the children. Caroline Crawford, an outpatient
therapist who provided family therapy, expressed concerns about Father's ability to set
limits and his tendency to make promises to the children. She noted that Father was doing
well at the time of the trial, but she worried how he would bode in the long-term when he
faced triggers. She testified the biggest problems for Father were housing, transportation,
and mental health.

Several service providers noted Father either arrived late to or missed altogether
numerous scheduled appointments or visits with the children. They expressed concerns
regarding his ability to comply with R.A.K.'s care routine. R.A.K. had attention deficit
hyperactivity disorder, Asperger's Syndrome, and an adrenal insufficiency that resulted in
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hypothyroidism. He required several daily medications and regular doctor's
appointments. Father did not have a detailed knowledge of this routine. While Father had
expressed interest in learning R.A.K.'s care routine, he did not follow through. He may
have even failed to give medications in some instances. Father had expressed some doubt
regarding R.A.K.'s Asperger's diagnosis. While he stated he did not necessarily disagree
with it, he had seen "fad" diagnoses. He personally did not see R.A.K. as disabled.

Father testified he had doubts regarding R.A.K.'s allegations of sexual abuse. He
explained he did not have all the evidence, so he could not form an opinion. Based on his
personal experience, he questioned the motives of law enforcement. He did not, however,
question the DCF substantiation of the abuse.

Service providers noted a number of positives regarding Father's parenting
abilities. Ryan Talley, the family's case manager from June 2014 until June 2015, noted
Father had initiated contact in the second CINC case even though he was incarcerated at
the time. Talley had no other concerns with the amount of contact he had with Father
while he was incarcerated. Father wrote letters to his children. Father was developing a
positive bond with C.K. He was able to calm R.A.K. when he became upset.

As for Father's mental health, parenting evaluators testified Father displayed
narcissistic and antisocial personality traits, low impulse control, aggressiveness, and
alcohol use disorder. Dirks explained Father's low impulse control and antisocial
personality traits set a bad example for the children, demonstrating a quickness to anger
and aggression, and an unwillingness to obey the rules. She doubted Father's narcissism
would affect his parenting. However, Erin Sawyer, a KVC psychologist, worried that
Father's narcissism might prevent him from "be[ing] able to anticipate the needs of his
children" or "be[ing] emotionally available to them."

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Father testified he had participated in cognitive thinking classes while
incarcerated. He had participated in PTSD and depression treatment through the VA
while living at the domiciliary. He admitted he had completed treatment for PTSD before
the incident resulting in his expulsion from the VA domiciliary. He had his last drink in
March 2013 and was participating in an alcohol and substance abuse program through
Fort Leavenworth and the VA. He attended AA twice a week through the VA and a local
church. He was participating in an anger management class and family therapy with C.K.
and R.A.K.

Father had a volatile relationship with Mother over the course of the two CINC
cases. While in Iraq, Father sent a stipend to Mother during the first CINC case. He
explained he wanted to alleviate any financial stress she might have so she could focus on
getting the children back. He testified, however, that he had someone follow Mother for 2
weeks while he was in Iraq. Dirks testified that Father had sent Mother emails telling her
to kill herself in December 2011. Mother, who was battling cancer, testified Father had
told her she deserved to have cancer.

Father expressed numerous concerns that Mother was allowing W.R. to have
contact with the children. He notified service providers about his concerns, but he felt
they were not taking adequate action. In February 2013, Father passed out flyers with
W.R.'s mugshot around Mother's neighborhood. He went to W.R.'s home, believing the
children were there and hoped he could catch W.R. in violation of court orders. This visit
to W.R.'s home resulted in Father's battery charge. Mother eventually got a protection
from abuse order against Father in the spring of 2013.

Father demonstrated aggressive behavior towards service providers. Service
providers testified he sent condescending and abrasive emails. Father denied that his
emails were belligerent. Rather, he felt that service providers had been lacking in
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professionalism. He admitted, though, that his style of communication was blunt and
could sometimes be inappropriate.

C.K.'s foster mother testified that Father had made a number of inappropriate
comments to C.K. and herself. He once told C.K. over the phone that he had taken a
psychological examination and he was going to go away for a while, and Mother was
never going to leave W.R. In another call, he told C.K. that he knew she wanted to stay
with her foster mother, but that was not going to happen. He later warned C.K.'s foster
mother in a text that when he got the children back, he would be the one to decide if she
ever got to see C.K. again.

C.K.'s foster mother testified she had received a link to a Go Fund Me page. The
page had a photograph of C.K. and R.A.K. and provided brief details about the CINC
case. The page appeared to her to be raising money for Father's attorney fees. When she
called Father about the page, he said his girlfriend had set up the page. It was gone within
an hour of that phone call.

Father testified he did not want to lose his parental rights, and he ultimately
wanted the children to come live with him. He admitted, though, that it would be "[q]uite
a process" before the children could reintegrate with him, and the children could not
come to live with him immediately.

According to several service providers, both children had expressed a preference
to live with their Mother but without W.R. R.A.K. told his foster mother that W.R. had
abused Mother, he hated W.R., and he did not ever want to live with him again. Both
children felt their Mother was choosing W.R. over them. C.K. told her foster mother, "I
don't understand why Mom is picking [W.R.] over me and [R.A.K.]" R.A.K. similarly
expressed that his Mother had a choice between them and W.R., and he felt like Mother
did not care about them. According to R.A.K.'s foster mother, R.A.K. described incidents
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of both sexual and physical abuse perpetrated by W.R. C.K. told her foster mother that
W.R. had slammed a door in her face.

While C.K. enjoyed visits with Father, she said she did not want to live with him.
Crawford noted C.K. was already parentified, and C.K. worried that if they reintegrated
with Father, she would be responsible for giving R.A.K. his medication. C.K. made
similar comments to her foster mother, but she later said Father was more attentive than
she originally thought.

Crawford testified that terminating the parents' rights would do harm to both the
children. She believed C.K. might experience some increased behavioral problems if the
district court terminated parental rights. C.K. said she would be sad and devastated if her
parents were out of her life. Crawford worried, though, that the cycle of abuse would
continue if the children reintegrated with Mother. She stated that stability was very
important for C.K. According to Crawford, adoption was not C.K.'s first choice, but she
would be okay with it. She stated R.A.K. had accepted the word "adoption." Crawford
testified that both C.K. and R.A.K. were content with their foster homes.

The district court later issued an order finding both parents unfit and terminating
their parental rights. The court applied two presumptions of unfitness to both parents
because the children had twice been adjudicated CINC, they had been in an out-of-home
placement for more than a year, and the parents had neglected or refused to comply with
a reintegration plan. The court found Mother had failed to adjust her circumstances and
conduct to meet the children's needs, and she had emotionally abused and neglected the
children by allowing W.R. to continue to have contact with them. The court determined
Father was unfit because he had a criminal record and had spent time in prison; he had
mental health issues; and he had failed to adjust his circumstances to meet the children's
needs. The court held that reasonable efforts made by public and private agencies had
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failed to rehabilitate the family, and the best interests of the children required termination
of Mother's and Father's parental rights. Both Mother and Father appeal.

Mother first argues the district court erred in finding she was unfit and would
remain unfit for the foreseeable future.

The Kansas Legislature has specified that the State must prove "by clear and
convincing evidence that the child is a child in need of care." K.S.A. 2015 Supp. 38-
2250. In addition to child in need of care adjudications, the clear and convincing evidence
standard of proof applies to all termination of parental rights cases. K.S.A. 2015 Supp.
38-2269(a).

"[W]hen an appellate court reviews a trial court's determination that a child is in need of
care, it should consider whether, after review of all the evidence, viewed in the light most
favorable to the State, it is convinced that a rational factfinder could have found it highly
probable, i.e., by clear and convincing evidence that the child was a CINC." In re B.D.-
Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).

See In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011) (applying standard of
review). In making this determination, this court does not weigh conflicting evidence,
pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286
Kan. at 705.

The Revised Kansas Code for Care of Children provides that the district court may
terminate parental rights when a child has been adjudicated a child in need of care.
K.S.A. 2015 Supp. 38-2269(a). The statute lists nonexclusive factors the court shall
consider in making a determination of unfitness. K.S.A. 2015 Supp. 38-2269(b). The
court must consider a separate list of nonexclusive factors when a child is not in the
parent's physical custody. K.S.A. 2015 Supp. 38-2269(c). Any one of the factors in
K.S.A. 2015 Supp. 38-2269(b) or (c) may, but does not necessarily, establish grounds for
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termination of parental rights. K.S.A. 2015 Supp. 38-2269(f). Upon making a finding of
unfitness of the parent, "the court shall consider whether termination of parental rights as
requested in the petition or motion is in the best interests of the child." K.S.A. 2015 Supp.
38-2269(g)(1). In making such a decision, the court shall give primary consideration to
the physical, mental, and emotional needs of the child. K.S.A. 2015 Supp. 38-2269(g)(1).

In making its determination that Mother was unfit, the district court relied on the
following factors:

1. K.S.A. 2015 Supp. 38-2269(b)(2), conduct toward a child of a physically,
emotionally, or sexually cruel or abusive nature;
2. K.S.A. 2015 Supp. 38-2269(b)(4), physical, mental, or emotional abuse or
neglect or sexual abuse of a child;
3. K.S.A. 2015 Supp. 38-2269(b)(7), failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family; and
4. K.S.A. 2015 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.

The district court found that a presumption of unfitness under K.S.A. 2015 Supp. 38-
2271 applied to Mother because (1) on two or more prior occasions C.K. and R.A.K.
were adjudicated CINCs while in Mother's physical custody; and (2) C.K. and R.A.K.
had been in an out-of-home placement, under court order for a cumulative total period of
1 year or longer and Mother had substantially neglected or willfully refused to carry out a
reasonable plan, approved by the court, directed toward reintegration of the children into
her home. K.S.A. 2015 Supp. 38-2271(a)(3) and (5).

Clear and convincing evidence supports the presumption of unfitness in Mother's
case. K.S.A. 2015 Supp. 38-2271(a)(3) provides a statutory presumption of unfitness
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where a child in the parent's physical custody has been adjudicated a CINC on at least
two prior occasions. In this case, the district court had twice adjudicated the children as
CINCs. Similarly, evidence supports a second presumption of unfitness that applies when
the child "has been in an out-of-home placement . . . for a cumulative total period of one
year or longer and the parent has substantially neglected or willfully refused to carry out
a reasonable plan . . . toward reintegration." K.S.A. 2015 Supp. 38-2271(a)(5). In the
second CINC case, the children were in an out-of-home placement from May 5, 2014,
until the district court terminated parental rights on April 5, 2016. Over the course of the
entire case, Mother willfully refused to comply with the condition of her plan that she not
allow W.R. to have contact with the children. She repeatedly lied to service providers
about the nature of her relationship with W.R. Mother does not argue that either statutory
presumption should not apply in her case.

Clear and convincing evidence supports the district court's finding that Mother
was unfit and would remain unfit for the foreseeable future based on statutory factors
under K.S.A. 2015 Supp. 38-2269. Despite the DCF substantiation of sexual abuse,
Mother continued to allow W.R. to have contact with her children, in violation of court
orders. Mother testified that she believed W.R. over her son regarding the abuse
allegations. She stated she wanted to continue as a family unit with W.R., and W.R.
testified at the hearing that he and Mother were engaged. Mother's behavior gave no
indication she intended to end her relationship with W.R., despite the domestic
disturbance and reports from the children that W.R. was physically abusive to Mother
and the children. In doing so, Mother exposed her children to abuse and demonstrated an
unwillingness to change her conduct or conditions.

Additionally, clear and convincing evidence demonstrates public and private
agencies made reasonable efforts to rehabilitate the family, and those efforts failed.
Mother testified she had been in therapy for depression since 2011 and had attended two
sessions of domestic violence training recently as per her recommendations. She attended
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family therapy with R.A.K. and C.K. during both CINC cases. Despite these services,
Mother continued to lie about her living situation and her relationship with W.R.

Mother's only argument regarding her fitness is that W.R.'s substantiation for
sexual abuse should not have been so important, and his acquittal of criminal charges
should have carried more weight. She argues that the DCF substantiation process is
secretive and not subject to due process standards. Because a jury acquitted W.R. of any
criminal charges, the substantiation should not have served as the basis of the termination
of her parental rights.

Mother does not cite any authority in support of her argument or explain why her
argument is sound despite a lack of supporting authority. See University of Kan. Hosp.
Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602 (2015)
(holding failure to support a point with pertinent authority or show why it is sound
despite a lack of supporting authority or in the face of contrary authority is akin to failing
to brief the issue). What her argument fails to acknowledge is the DCF substantiation did
not lead to the termination of her parental rights. What led to the termination of Mother's
parental rights was her willful and long-standing violation of an express condition of her
parenting plan regarding her children's safety. Mother allowed W.R. to have contact with
her children despite court orders. While violation of a no-contact order alone may not be
sufficient to demonstrate unfitness, there were allegations of physical abuse and
substantiated sexual abuse. See In re C.W., No. 113,547, 2015 WL 5311260, at *18-19
(Kan. App. 2015) (unpublished opinion) (finding violation in mother's decision to remain
with father despite credible allegations father sexually abused child demonstrated
unfitness). Mother repeatedly lied to service providers about the nature of her relationship
with W.R. and encouraged her children to do the same. While Mother may have felt this
particular condition was unfair, this does not excuse her willful defiance of the court's
orders or the intentional endangerment of her children.

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Mother does not challenge the district court's determination that the conduct or
conditions causing her unfitness were unlikely to change in the foreseeable future.
Therefore, she has abandoned this claim. Superior Boiler Works, Inc. v. Kimball, 292
Kan. 885, 889, 259 P.3d 676 (2011) (holding an issue not briefed by the appellant is
deemed waived or abandoned). Nevertheless, the court may predict parents' future
unfitness based on their past conduct. In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467
(1982). Courts view the "foreseeable future" element through the child's perspective
rather than the parents'. In re S.D., 41 Kan. App. 2d 780, 790, 204 P.3d 1182 (2009). In
this case, Mother maintained her relationship with W.R. throughout almost the entirety of
the case. She regularly lied to service providers about her current situation, even when
confronted with conflicting evidence. Based on this, Mother's conduct was unlikely to
change in the foreseeable future.

The proper standard of review for the best interests determination in a termination
hearing is abuse of discretion. In re R.S., 50 Kan. App. 2d 1105, 1116, 336 P.3d 903
(2014). A district court abuses its discretion when its decision is (1) arbitrary, fanciful, or
unreasonable, (2) based on an error of law, or (3) founded on an error of fact. Northern
Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106
(2013). When determining whether termination was in the child's best interests, courts
must give primary consideration to the child's physical, mental, and emotional health.
K.S.A. 2015 Supp. 38-2269(g)(1).

The district court did not abuse its discretion in finding termination of Mother's
parental rights was in the best interests of the children. Crawford testified the children
would experience some harm and possibly develop behavioral issues if the court
terminated Mother's parental rights. She worried, however, that the cycle of abuse would
continue if the children reintegrated with Mother. Both children were clear that they did
not want to live with W.R., yet Mother had shown no signs of ending her relationship
with him.
18


Evidence demonstrated that the children's present situation was having a negative
emotional impact on them. R.A.K.'s foster mother noted he had regressed both at school
and at home, at times being disruptive and at other times appearing sad. C.K.'s foster
mother noticed R.A.K. had been more hyperactive and aggressive. C.K.'s foster mother
expressed concerns about the emotional toll the case was taking on C.K. She felt the case
had affected C.K.'s self-esteem and her ability to trust others. C.K. had made a comment
that she "feels like the people that are supposed to have her back haven't and she doesn't
understand why."

In her brief, Mother points out that C.K.'s foster mother noted in a letter that C.K.
had commented: "I miss my mom so much it hurts. I could just cry. . . . Holidays don't
feel the same without my mom." What Mother leaves out, though, is in that same
paragraph C.K.'s foster mother reported the comments: "Sometimes [i]t feels like mom
chooses [W.R.] over me and [R.A.K.]" and "I feel like mom has lied to me in relation to
her relationship with [W.R.]"

Mother notes R.A.K.'s difficulty adjusting to some of his foster homes, and the
emotional burden the case placed on C.K. Specifically, Mother points to Crawford's
testimony that C.K. "struggles with performance anxiety, catastrophic thought process,
[low self-esteem], and the case requirements overwhelm her." This evidence
demonstrates, however, the need to resolve the case quickly and find permanency for the
children.

While the children may experience some emotional harm due to the termination of
Mother's parental rights, this cannot justify placing the children in harm's way. The DCF
substantiated W.R. for sexual abuse against R.A.K., but Mother chose to believe W.R.
over her son. The children reported that W.R. was physically abusive towards their
Mother and themselves. Despite this, Mother has shown no intention of ending her
19

relationship with W.R. or protecting her children from potential abuse. Therefore, the
district court did not err in finding terminating Mother's parental rights was in the best
interests of the children.

Father argues the district court erred in finding he was unfit and would remain
unfit for the foreseeable future.

Father argues the district court erred in applying presumptions of unfitness in his
case. The State concedes that K.S.A. 2015 Supp. 38-2271(a)(3), providing a presumption
of unfitness when a child is twice adjudicated a CINC while in the physical custody of
the parent, does not apply in Father's case because C.K. and R.A.K. were never in the
physical custody of Father. Thus, the only presumption which can apply is K.S.A. 2015
Supp. 38-2271(a)(5), which provides for a presumption of unfitness when a child has
been in out-of-home placement for a year or longer and the parent has substantially
neglected or willfully refused to carry out a reasonable plan directed toward reintegration.
Father argues this presumption does not apply because he did not fail to carry out any
plan directed toward reintegration.

The case plan in the first CINC case aimed to reintegrate C.K. and R.A.K. with
Mother because Father was overseas at the time. Carisa Ward, one of the family's case
managers from February 2012 to October 2012, testified that Father completed all the
case plan tasks necessary to reintegrate the children with Mother.

At the beginning of the second CINC case, Father was in prison. Talley testified
Father's only case plan task at that time was to establish contact with KVC to discuss his
involvement with the children and case plan tasks. Talley was satisfied with the amount
of contact he had with Father, and he did not add any other requests. Father sent
certificates of completion of classes while in prison without Talley asking.

20

After Father was released from prison in September 2014, he set up a meeting
with Talley for October 13, 2014. Father did not show up for that meeting. Talley later
learned Father was in jail for another offense. During the time Talley was the case
manager, Father regularly maintained contact, signed all the necessary releases, and
started the process of getting his psychological and parenting evaluations. Father was not
involved in any medical or school appointments. He did visit with the children, however.
Talley testified Father missed several visits in the beginning, and was often late, but his
punctuality improved over the course of the case. He never obtained safe and stable
housing suitable for reintegration. He had a part-time, temporary job but never provided
proof of sustainable employment.

While Father's conduct may not be ideal, it arguably does not demonstrate
substantial neglect or willful refusal to carry out a reasonable reintegration plan. While he
failed to accomplish some case plan tasks, he did fulfill others. He maintained contact
with the family's case manager. This is unlikely to change the outcome in this case,
however, because clear and convincing evidence supports several statutory factors
demonstrating Father's unfitness.

The district court only enumerated one of the statutory factors it relied upon in
finding Father unfit. This was K.S.A. 2015 Supp. 38-2269(b)(7), or failure of reasonable
efforts to rehabilitate the family. The district court's findings appear to implicate the
following factors:

1. K.S.A. 2015 Supp. 38-2269(b)(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;
2. K.S.A. 2015 Supp. 38-2269(b)(2), conduct toward a child of a physically,
emotionally, or sexually cruel or abusive nature;
21

3. K.S.A. 2015 Supp. 38-2269(b)(5), conviction of a felony and imprisonment;
4. K.S.A. 2015 Supp. 38-2269(b)(7), failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family; and
5. K.S.A. 2015 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.

Clear and convincing evidence demonstrated Father suffered from mental illnesses
which impaired his parenting abilities. Both parenting evaluators diagnosed Father with
narcissism, antisocial personality traits, low impulse control, and aggressiveness. Dirks
testified Father's low impulse control would set a bad example for his children. Sawyer
testified that Father's narcissism and antisocial personality traits may not necessarily
affect his parenting, but they could lead to emotional unavailability and poor judgment.
Sawyer pointed to Father's criminal convictions and his choice to work overseas as
possible results of his mental health conditions. Additionally, Father continued to exhibit
impulsive and aggressive behaviors throughout the case, including sending aggressive
texts to Mother, condescending emails to service providers, and inappropriate comments
to C.K.

Turning to emotional abuse or neglect, Father testified he had doubts as to whether
W.R. sexually abused R.A.K. He accepted the substantiation but would not form his own
opinion on the issue because he did not have all the evidence. He distrusted law
enforcement based on his own personal experience. The court determined this
endangered the children and indicated an inability to place the children's needs and safety
first.

Father argues his testimony does not mean he denied the abuse occurred, and
furthermore, he was "very proactive" in keeping W.R. away from the children. Multiple
service providers testified that Father was worried Mother was in contact with W.R. or
22

allowing W.R. to have contact with the children during the first CINC case. He sent
police to Mother's house to do welfare checks. Mother, however, told one service
provider that Father was only behaving this way "to get back at her." Mother said Father
was harassing her and she was afraid of him. Moses reported that Father had told her at
one point that he did not want visits with the children because his goal was to make sure
Mother lost the children and W.R. ended up in jail. Jerilyn Smith, one of the family's case
managers from October 2012 to January 2013, said Father had stated in an email that "it
was about winning for him."

As to reasonable efforts to rehabilitate the family, Father did appear to have his
alcohol use disorder under control. Father participated in several cognitive therapy
classes as well as family therapy but continued to behave in an impulsive and abrasive
manner to several people involved in the case, including Mother and multiple service
providers. Father regularly missed or showed up late for scheduled supervised visits with
his children.

As for the conviction of a felony and imprisonment, Father spent 18 months in
prison on a federal criminal charge. He had a battery conviction arising from an incident
involving W.R. Father testified he had not had any new charges in the past 2 years. Two
service providers, however, had seen Father driving with a suspended license.
Additionally, his probation had been revoked and reinstated once over the course of the
second CINC case.

Clear and convincing evidence demonstrates Father was unable or unwilling to
adjust his circumstances to meet the needs of his children. During the first CINC case,
Father was working abroad in Iraq. He told one service provider he felt he could best take
care of his children by providing stable and substantial income. Cruse testified she did
not believe this was an issue of Father picking work over his children. Dirks, however,
testified she believed Father was choosing a high-salaried job over raising his children.
23

She stated she was willing to give custody of the children to Father in the first CINC
case, but he turned it down in favor of his job. According to Dirks, Father said he did not
want the children but wanted Mother to have them instead.

After returning from Iraq, Father spent time in federal prison. After being released
from prison, he spent two more stints in jail on separate criminal charges. Father then
lived in five different residences over the span of 10 months. His longest stay in any one
place was 3 to 4 months. At the time of Father's second testimony, he was living in a
three-bedroom apartment with his girlfriend, her three children, and her two
grandchildren. He told the court he had not planned this last move; it had "just kind of
happened over time."

Father had been unable to maintain steady employment since his release from
prison. He had worked at least four different jobs, some of which were only part-time.
His longest period of employment was 6 weeks. He had received an other-than-honorable
discharge from the U.S. Army Reserves.

Finally, Father had not demonstrated the ability to attend to R.A.K.'s needs. He did
not have a detailed understanding of R.A.K.'s care routine. While he expressed an interest
in learning the routine to service providers, he never followed through. In the past, he had
possibly failed to give R.A.K. medication, leaving C.K. to report the missed medications
to service providers.

Father does not challenge the district court's determination that the conduct or
conditions causing his unfitness were unlikely to change in the foreseeable future.
Therefore, he has abandoned this claim. See Superior Boiler Works, Inc., 292 Kan. at
889. Based on the facts of this case, however, Father's conduct is unlikely to change in
the foreseeable future. Over the course of 3 years, Father was regularly unavailable to
parent his children. He had been unable to sustain steady employment or housing since
24

leaving prison in 2014. He exhibited aggressive and impulsive behaviors over the course
of the case, even after participating in therapy.

We review the best interests determination for abuse of discretion. In re R.S., 50
Kan. App. 2d at 1116. In its ruling, the district court noted the emotional toll the case was
taking on both C.K. and R.A.K. The court noted the anxiety C.K. experienced because of
the case. It pointed out that C.K. had become parentified and often cared for R.A.K. C.K.
said she did not want to live with Father. The court found the children needed
permanency and stability in their lives, but both Mother and Father were unable to
provide this in the foreseeable future. Thus, termination of parental rights was in the
children's best interests.

Father argues the district court did not properly focus on the physical, mental, and
emotional needs of the children in making its best interests determination. The court,
however, clearly acknowledged the present emotional harm to the children as well as
potential harm if the case continued or the children reintegrated with either parent.

Additionally, Father argues the trial testimony provided sufficient evidence that
termination of Father's rights is not in the best interests of the children. This is not the
correct standard of review, though. The correct standard of review is abuse of discretion.
While Crawford testified the children might experience harm if the court terminated
parental rights, the case had already taken an emotional toll on the children. A reasonable
person could agree that Father could not provide the permanency and stability the
children needed, so their best interests required termination of Father's parental rights.

Affirmed.




25

* * *

ATCHESON, J., concurring: I concur in the result. The Douglas County District
Court had legally and factually sufficient grounds to find K.W. and W.K. unfit parents
due to circumstances that were unlikely to change in the foreseeable future. And the
district court correctly found the interests of C.K. and R.A.K., their children, would best
be served by terminating parental rights. See K.S.A. 2015 Supp. 38-2269(a), (g)(1). The
termination order, therefore, was properly entered, and I would affirm, although my
reasons are somewhat narrower than what the majority outlines.

As to K.W., the evidence showed that C.K. and R.A.K. had been removed from
her custody in an earlier child-in-need-of-care proceeding when R.A.K. alleged W.R., her
live-in boyfriend, had sexually assaulted him. W.R. was criminally charged and found not
guilty in a jury trial. But the Department for Children and Families investigated and
deemed the allegation "substantiated"—an administrative determination based on a
preponderance of information developed during the investigation. See K.A.R. 30-46-
10(k). As part of the family reunification in the earlier proceeding, the district court
ordered that K.W. not reside with W.R.

In this proceeding, the evidence showed that K.W. continued to live with W.R. in
defiance of the court order and lied about it to various people, including DCF
representatives. She also enlisted C.K. and R.A.K. to lie about W.R.'s residence in their
home. W.R. attacked and beat K.W. at least one time in the presence of the children. And
the children reported that K.W. and W.R. frequently argued.

The district court found, among other grounds, that K.W.'s actions in that respect
demonstrated parental unfitness. See K.S.A. 2015 Supp. 38-2269(b)(8) (unwillingness of
parent to "adjust [his or her] circumstances, conduct or conditions to meet the needs of
the child"). It's not clear to me from the record whether the district court made a factual
26

finding that W.R. had sexually assaulted R.A.K. or gave some sort of preclusive effect to
DCF's determination. Even if the district court did neither, K.W.'s deliberate and ongoing
violation of the order regarding W.R., especially coupled with her use of the children to
carry out the deception, evinced the sort of wrongful conduct and poor judgment
warranting a finding of unfitness. Moreover, W.R.'s actions and presence—wholly apart
from the alleged sexual abuse—created a deleterious, emotionally abusive, and likely
dangerous home environment, only adding to K.W.'s unfitness in failing to see to the
legitimate needs of C.K. and R.A.K. The record evidence was such that a rational
factfinder could have found K.W.'s unfitness to be "highly probable, i.e., [supported] by
clear and convincing evidence"—the standard by which we review the district court's
determination. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). Similarly, the
district court properly found that K.W.'s unfitness was unlikely to change given the
lengths K.W. went to to protect her live-in relationship with W.R. and her persistence in
maintaining that relationship.

As to W.K., the evidence showed that he had not maintained any sort of regular
housing that would have been suitable for the children. At the time of the termination
hearing, W.K. lived with a woman, her three children, and her two grandchildren in a
three-bedroom apartment. Although a caseworker had not reviewed the housing, W.K.'s
description of the size of the apartment and the occupancy rendered it physically
unsuitable for two additional children. W.K. offered only a spotty recent work history
without substantial evidence of having exercised real diligence in securing stable
employment and presented no substantial evidence he would be able to provide for even
minimal essentials of food, clothing, and the like for C.K. and R.A.K. See K.S.A. 2015
Supp. 38-2202(t)(1).

In addition, as the majority points out, R.A.K. has been diagnosed with Asperger's
Syndrome, requiring particularly attentive parenting. W.K. was dismissive of the
diagnosis and the condition itself, strongly suggesting an unwillingness to be responsive
27

to R.A.K.'s special needs. Finally, W.K. has displayed a consistently volatile and often
threatening personality.

W.K. has shown no particular inclination to improve any of those circumstances,
conditions, or behaviors. That supports the district court's findings of both unfitness as to
him, as set out in K.S.A. 2015 Supp. 38-2269(b)(8), and the unlikelihood of change in the
foreseeable future.

All of that evidence, likewise, warrants the district court's conclusion that the best
interests of C.K. and R.A.K. would be advanced by terminating the parental rights of
K.W. and W.K. The best-interests determination is entrusted to the district court's sound
discretion based on a preponderance of the evidence. In re R.S., 50 Kan. App. 2d 1105,
1115-16, 336 P.3d 903 (2014). The district court understood the relevant facts and
applied the proper law. And the conclusion is one other judicial officers would have
reached under comparable circumstances. So there was no abuse of discretion. 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).

For those reasons, the district court's termination order should be affirmed. And
for those reasons, I concur in the result the majority reaches.