In re D.S.

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NOT DESIGNATED FOR PUBLICATION

No. 119,933

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of D.S. and K.S.,
Minor Children.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed June 7, 2019.
Affirmed.

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

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

Before ARNOLD-BURGER, C.J., HILL, J., and STUTZMAN, S.J.

PER CURIAM: Separate cases from the Sedgwick County District Court
concerning the care and welfare of two children, D.S., a male born in 2003, and K.S., a
female born in 2006, are consolidated for this appeal. M.M. (Mother) appeals the June
2018 order of the district court that terminated her parental rights to D.S. and K.S. The
father, B.W.S., (Father) relinquished his parental rights in May 2016 and is not a party to
this appeal.

Mother argues generally that there was not clear and convincing evidence that she
was unfit and unlikely to change in the foreseeable future. Specifically, she challenges
the district court's use of a "stipulation to present unfitness" that she had signed two years
before the termination hearing. For the reasons detailed below, we affirm the district
court's findings and conclusions.
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FACTS AND PROCEDURAL BACKGROUND

On April 22, 2015, the State filed petitions to have D.S. and K.S. adjudicated as
children in need of care. An officer of the Wichita Police Department placed K.S. and
D.S. into protective custody due to their parents' drug use, neglect, and the unhealthy
living conditions of the home, precipitating the State's action to open the cases. The
following day, on April 23, 2015, the district court granted temporary custody of the
children to the Secretary of the Department for Children and Families (DCF) for out-of-
home placement. After an initial placement, Saint Francis Community Services (SFCS)
developed a plan to place the children temporarily with their paternal grandmother
(Grandmother) and required Mother to submit to drug testing and to have assistance to
make her home suitable for the children. On August 6, 2015, the parents offered
statements of no contest to the petitions. The district court found the facts in the petitions
were true and were sufficient to support adjudication, and concluded D.S. and K.S. were
children in need of care.

The State first moved to terminate the parental rights of both parents on November
9, 2015. In mid-July and early August 2015, Mother had been incarcerated for a
probation violation. Upon her release, Mother attended a meeting with her case manager
from SFCS, Jerry Pierce. Pierce observed that Mother had two black marks under her
eyes and broken fingers. Mother admitted that there was still some domestic violence
with Father but said she felt safe because Father was no longer welcome in her home. In
September 2015, both parents were arrested following an incident involving SWAT
intervention to apprehend Father who was a suspect in pending criminal cases. Mother
was incarcerated from September 2015 to January 2016 for probation violations and her
alleged interference with law enforcement officers.

On May 9, 2016, Father relinquished his parental rights at the hearing on the
State's motion to terminate the parents' rights. At the same hearing, Mother stipulated to
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her "present unfitness," and the other parties agreed to continue the case to allow her time
to complete court orders and demonstrate stability. The parties also agreed that if the
motion to terminate Mother's rights was again brought before the court for hearing, the
State would only need to prove Mother's unfitness for the foreseeable future.

Considering Mother's stipulation, the district court found that clear and convincing
evidence showed Mother was "presently unfit" by reason of conduct or condition that
rendered her unable to care properly for D.S. and K.S. In support of that finding, the
court stated consideration of these statutory factors: the failure of reasonable efforts by
public or private agencies to rehabilitate the family (K.S.A. 2018 Supp. 38-2269[b][7)];
Mother's lack of effort to adjust her circumstances, conduct, or conditions to meet the
children's needs (K.S.A. 2018 Supp. 38-2269[b][8]); and Mother's failure to carry out a
reasonable court-approved plan directed toward reintegration of D.S. and K.S. into her
home (K.S.A. 2018 Supp. 38-2269[c][3]). In addition to affirming that prior orders
remained in effect, the district court specified 12 particular orders and tasks for Mother.

Between July and November 2016, Mother received 13 sessions of individual
therapy with Jennifer Hernandez, LCMFT, at Central Christian Counseling Center.
Hernandez submitted a case update that was admitted as a State's exhibit at the final
termination hearing. In the update, Hernandez reported that in the middle of that
therapeutic relationship she became aware that Mother was "omitting important
information as detailed in the court documents" that Mother's case manager provided to
Hernandez. The documents referred to Father and an upcoming trial he was facing.
Hernandez commented that Mother's lack of transparency made it difficult for her to
assess whether Mother was able to see how her marriage could potentially have a
negative impact on D.S. and K.S. Hernandez reported that Mother "exhibited little
interest in processing the unhealthy marriage in detail with [Hernandez] and would most
likely need long term therapy for her concerns."

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Hernandez referred Mother to two agencies for that purpose, both of which
provided services at very low cost, and notified Mother and her case manager about her
referral. At the time of concluding her therapy with Mother, Hernandez recommended
working on boundaries within the marital relationship so Mother could make healthy
choices that would place a priority on her children and her. She was also of the opinion
that reducing the codependency in the marriage would have benefitted the entire family.
Mother did not resume individual therapy until August 2017—about eight months after
she concluded the sessions with Hernandez—when she began therapy with Michele
Meinhardt, LSCSW, at HopeNet, one of the agencies to which she was referred by
Hernandez.

Pierce spoke with Mother in January and July 2017 about continuing therapy to
address her boundary issues with Father. In January 2017, Mother told Pierce that she
could place good boundaries with Father, and she understood he could not move in with
her directly upon his release. In March 2017, Mother said that she had some financial
concerns about therapy, so Pierce asked her to complete a budget and she committed to
do so. Mother had not completed a budget by their next meeting, but she did so after the
court ordered it. Mother later received a settlement from an accident that allowed her to
pay her bills, fines, obtain her driver's license, and obtain two vehicles.

In April 2017, after a jury found him not guilty of aggravated indecent liberties
with a child, Father moved in with Mother upon his release from jail. In May 2017, the
district court held a permanency hearing. Mother was present, and Father was also
present with appointed counsel, although he had relinquished his parental rights a year
earlier. The district court ordered that any contact, visits, or therapy involving the
children and Father would be at the direction of each child's therapist. The court directed
Mother to begin "active involvement" in an appropriate individual therapy program until
the therapist considered it was no longer needed or the court rescinded the order. Mother
began her therapy with Meinhardt about three months later. By September 2017, SFCS
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reported that Mother continued her relationship with Father, but the team and the court
had discussed working with Father as Mother's significant other—even though he had
relinquished his rights as a parent to D.S. and K.S.

In December 2017, SFCS learned Father was no longer living with Mother. In late
November and early December 2017, he had been arrested and again was facing criminal
charges. At the next permanency hearing, in January 2018, the district court ordered there
was to be no family therapy or visitation between Father and the children. Later that
month, Father pled guilty to various criminal charges, with sentencing was set for May
2018. In late February 2018, after a call from Mother to law enforcement, Father was
arrested on outstanding warrants and for obstruction during the incident, which involved
an extended standoff before Father surrendered to custody.

On April 6, 2018, the State filed an amended motion to terminate Mother's
parental rights. The district court heard evidence on the motion on May 16, 2018. At the
outset of the hearing, the State reminded the court that Mother had stipulated to "present
unfitness" almost exactly two years earlier, and announced the State would proceed,
therefore, "on the issue of foreseeable future."

In the course of the termination hearing, Pierce acknowledged Mother had
improved her circumstances, having no positive urinalysis tests, successfully completing
drug and alcohol treatment, maintaining employment, having appropriate housing, and
regularly attending visits with the children. But the State also presented evidence of
Mother's continued contact with Father during his incarcerations between December
2017 and May 2018. The couple's conversations included texts and emails, phone or
video calls, and Mother's video-recorded visits with Father. In some videos, Father called
Mother vulgar names, yelled at her for not completing tasks he told her to do, and
informed her that she was the reason he was in jail. Despite that treatment, Mother told
Father she loved him and would continue to be there for him. After the State showed a
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few videos in court, Pierce and Meinhardt stated their opinions that Father was at times
emotionally abusive towards Mother. Pierce expressed his concern that Father had
control over Mother from jail when he gave her to-do lists and became irate when she did
not complete his lists. Meinhardt confirmed that a husband emotionally abuses his wife
by calling her vulgar names, yelling at her for not getting his to-do lists done, and telling
her who she can and cannot talk to.

Meinhardt told the court that she had recommended weekly therapy sessions but
that Mother had asked to move therapy to every other week for financial reasons. She did
not know Mother had provided Father financial assistance during his incarcerations.
Meinhardt related that Mother's therapy focused first on domestic abuse but had recently
started addressing codependency. She was unaware Mother had previously received
therapy through Central Christian Counseling Center. According to Meinhardt, however,
Mother had expressed a willingness to end her relationship with Father if it would help
get the children back, although it would be hard. In January 2018, Mother told Meinhardt
that Father was no longer welcome at her house. Meinhardt recommended that Mother
continue therapy to address her codependency issues and was unsure how long that
would be needed.

Pierce testified that he spoke with Mother in March and May 2018 about the
importance of boundaries when it came to Father. Pierce said Mother denied that Father
controlled her and told Pierce she and Father were only friends and not really in a
relationship; she would not let Father move into the house upon his release, she could
make good decisions without him; and she would not let him interfere in her life. Pierce
testified, however, that Mother had said that before and she had allowed Father to move
back home after his release in April 2017. Pierce stated he was uncertain whether Mother
let Father move in after his later releases.

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Pierce testified that Mother's codependency with Father was the priority concern
when Mother stipulated to present unfitness and, two years later, it remained the principal
issue. He confirmed that it was a concern that Mother would tell Father she loves him and
would be with him no matter what when he is abusive towards her. Pierce also agreed
that Mother had trouble putting the children first, but put Father, and "to an extent"
herself, first.

The children's therapists also testified. Amy Meek, LSCSW, D.S.'s therapist, said
she did not think it would be in D.S.'s best interests for Mother to be given additional
time to work toward reintegration. Instead, it was in D.S.'s best interests to terminate
Mother's parental rights and place him with Grandmother. Since entering therapy, D.S.
had shown some improvement, including more appropriate interactions with
Grandmother; he had begun to develop some healthy relationships; and he had shown
more stability at school, at home, and with peers. Meek told the court that, from the few
times she watched D.S. with his family, she saw him take on an almost parental role, with
him evaluating the information he received from his parents before he decided whether to
accept it. Meek said D.S. had grown up to be quite "parentified," at times wanting to act
as parent to his younger sister and at other times tired of being the one to look out for her.
And, as a 15-year old, he was not always going to make the best parenting decisions.
Meek testified D.S. thought Father did not receive consequences for his actions and
outsmarted or manipulated people. He was frustrated that Father had received limited
prison time from his recent sentencing, and he believed Father would be released soon
and would return to Mother. D.S. had told her he wanted to live with Grandmother,
which he thought was the best place for him.

K.S.'s therapist, Lana Secrest, LSCSW, testified it was also in K.S.'s best interests
to terminate Mother's parental rights and allow K.S. to live with Grandmother. Secrest
had seen K.S. twice monthly from March 2016 to the time of the termination hearing.
Secrest had observed K.S. become more trusting in therapy over time and she talked
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more about past experiences, including witnessing some domestic abuse. Secrest stated
her concerns with Mother's home environment were that K.S. had been a witness to
domestic violence; that her brother—not her parents—may have acted as her protector;
and that she was at times put in a place where she felt she had to choose between her
parents. Secrest had only one direct contact with Mother, in her office lobby. Father had
returned to jail and K.S. was crying and angry at him, but Mother failed to show
compassion or to comfort K.S. Mother told K.S. that: "We're all mad at him. He did this
to me, too." Then, in the presence of the children, Mother asked Secrest whether she had
made a recommendation for the court and what that recommendation would be.
Grandmother told Mother she should not do that with the children there. K.S. told Secrest
that if she could stay with Grandmother, that is where she would like to be.

The State also presented the testimony of SFCS family support worker, Kaitlin
Deitchler, who testified her role was to oversee visitations with the family and to work
with the case manager to develop recommendations for the court. Deitchler testified that
the visitations with Mother never advanced to the point they were unsupervised. Those
visits had changed from supervised to monitored visits—during which a worker checks in
during the visit—in January 2018, primarily because Father was in jail at the time. The
visits reverted to supervised status after Grandmother reported that Mother tried to make
a three-way phone call with Father to K.S.'s phone. When confronted, Mother denied it,
but Meinhardt testified Mother admitted to her that she made the three-way call.

Deitchler was concerned that Mother seemed unable to use parenting skills and
assert parental control when the children argued, and also that Mother continued to
discuss with the children both their court case and Father's criminal cases despite having
been told numerous times not to do so. Deitchler observed Mother's inability to exert any
control over the children during a visit the day before the hearing. She also expressed
concern with Mother's boundary issues with Father, explaining she was unsure Mother
could protect herself and the children. Deitchler believed Mother put herself before the
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children and her financial support of Father may not allow her to provide the care that the
children need.

Mother had one witness testify on her behalf, Dr. Michael O'Donnell, senior pastor
of Grace Baptist Church. O'Donnell testified he met Mother when Father was involved in
their parenting class when he was in jail. O'Donnell met Pierce and went to see Mother to
look at her needs, and he got her involved in a peer support system. He testified that the
home where he and Pierce visited Mother was unsuitable, but once she found a new
home, she set up her household well. Mother participated in the church's sober recovery
program and became a leader and mentor in that substance abuse program.

O'Donnell testified he thought Mother knew "intellectually" she and Father needed
to separate and they had recommended she have someone act "almost like a[n AA]
sponsor" to help Mother follow through. Mother told him Father had talked about moving
to another state upon his release from jail. O'Donnell told the court "I think if [Father]
was not in the picture that they could have . . . a stable home." Having said that,
O'Donnell added that whether Mother was capable of keeping Father out of the picture
was a question about which he understood the "trepidation."

After the presentation of evidence, the district court found Mother previously had
been found unfit based on her stipulation. The court said Mother had improved some of
her circumstances, but held that her inability to end the relationship with Father—despite
his continued abuse—supported finding her unfit and unlikely to change in the
foreseeable future. From the bench, the district court identified the following factors in
support of its finding: (1) abusive conduct towards the children under K.S.A. 2018 Supp.
38-2269(b)(2); (2) the failure of reasonable efforts by appropriate public or private
agencies to rehabilitate the family under K.S.A. 2018 Supp. 38-2269(b)(7); (3) Mother's
lack of effort to adjust her circumstances, conduct, or conditions to meet the needs of the
children under K.S.A. 2018 Supp. 38-2269(b)(8); and (4) Mother failed to carry out a
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court approved plan directed toward reintegrating the children into her home under
K.S.A. 2018 Supp. 38-2269(c)(3). In the journal entry, the district court identified the
same four factors and also identified K.S.A. 2018 Supp. 38-2269(b)(9) as supporting
unfitness, that the children had been in extended out-of-home placement as a result of
Mother's actions or inaction and one or more factors under subsection (c) applied. The
district court held the termination of Mother's parental rights was in the children's best
interests in considering the physical, mental, and emotional health of the children.

Mother timely appeals.

ANALYSIS

Mother argues the district court improperly considered the "stipulation to present
unfitness" that she had signed two years before the final termination hearing. She
contends the district court relied on that earlier stipulation to "waive findings of present
unfitness," leaving the court without clear and convincing evidence to support its order
for termination of her rights.

Standard of Review

When reviewing a termination of parental rights, we consider "whether, after
review of all the evidence, viewed in the light most favorable to the State, we are
convinced that a rational factfinder could have found it highly probable, i.e. by clear and
convincing evidence, that the parent's rights should be terminated." In re K.W., 45 Kan.
App. 2d 353, 354, 246 P.3d 1021 (2011) (citing In re B.D.-Y., 286 Kan. 686, 705, 187
P.3d 594 [2008]). Evidence is "clear and convincing" when "the truth of the facts asserted
is highly probable." In re B.D.-Y., 286 Kan. at 697. We do not "weigh conflicting
evidence, pass on credibility of witnesses, or redetermine questions of fact." 286 Kan. at
705.
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When children have been adjudicated as children in need of care, a district court
may terminate parental rights "when the court finds by clear and convincing evidence that
the parent is unfit by reason of conduct or condition which renders the parent unable to
care properly for [the children] and the conduct or condition is unlikely to change in the
foreseeable future." K.S.A. 2018 Supp. 38-2269(a). In making the determination, the
district court considers nine nonexclusive factors listed in K.S.A. 2018 Supp. 38-2269(b).
When the children are not in a parent's physical custody, the district court also must
consider the four factors listed in K.S.A. 2018 Supp. 38-2269(c). Any one factor in
K.S.A. 2018 Supp. 38-2269(b) or (c) may, but does not necessarily, establish grounds for
terminating a parent's rights. K.S.A. 2018 Supp. 38-2269(f).

When we evaluate what constitutes the "foreseeable future," we do so "from the
perspective of a child because children and adults have different perceptions of time and
children have a right to permanency within a time frame reasonable to them." In re M.H.,
50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014); see K.S.A. 2018 Supp. 38-2201(b)(4).

"A district court may look to a parent's past conduct as an indicator of future
behavior. See In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982); In re M.T.S.,
No. 112,776, 2015 WL 2343435, at *8 (Kan. App. 2015) (unpublished opinion) ('Parental
unfitness can be judicially predicted from a parent's past history.')." In re K.L.B., 56 Kan.
App. 2d 429, 447, 431 P.3d 883 (2018).

Upon finding a parent unfit, "the court shall consider whether termination of
parental rights as requested in the petition or motion is in the best interests of the child. In
making the determination, the court shall give primary consideration to the physical,
mental and emotional health of the child." K.S.A. 2018 Supp. 38-2269(g)(1).

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Discussion

Now, for the first time, Mother argues her 2016 stipulation of present unfitness
created a rebuttable presumption that she overcame because the May 2016 stipulation
was stale when, two years later, the district court found she was unfit and unlikely to
change in the foreseeable future. In response, the State argues Mother failed to preserve
the issue for review and her inadequate briefing should result in a finding by this court
that she has waived or abandoned the issue.

Generally, issues not raised before the district court cannot be raised on appeal.
Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, Syl. ¶ 9, 266 P.3d 516 (2011). This
includes constitutional grounds for reversal that have been raised for the first time on
appeal. See In re A.E.S., 48 Kan. App. 2d 761, Syl. ¶ 8, 298 P.3d 386 (2013).

"'[T]here are several exceptions to the general rule that a new legal theory may not be
asserted for the first time on appeal, 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.' [Citation omitted.]" In re Estate of Broderick, 286 Kan. 1071,
1082, 191 P.3d 284 (2008).

Mother has a fundamental constitutional right to the custody and control of her
children, and this court has found consideration of an argument for the first time on
appeal was necessary to prevent the denial of that fundamental right. See In re K.L.B., 56
Kan. App. 2d at 438.

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The stipulation

Although Mother styles her contentions as two issues, one of them with two
subparts, they are essentially one argument—that the State failed to provide clear and
convincing proof upon which the district court could base an order terminating her rights.
Since the May 9, 2016 stipulation to present unfitness is central to her argument, we start
there.

On May 9, 2016, the parties had appeared before the district court on the State's
motion to find Mother and Father unfit and to terminate their parental rights. At that
point, Father relinquished his rights and Mother stipulated to "present unfitness." In
conjunction with Mother's stipulation, the other parties stated their agreement that Mother
"will have a continuance of the termination hearing until August 8, 2016 . . . to allow her
more time to complete court orders and demonstrate stability." The stipulation also
included the statement that "all parties agree, that if this matter requires further hearing
on the Motion in the future, the State will only be required to prove unfitness for the
foreseeable future as to Mother." Over the next two years, there ensued a string of review
and permanency hearings that ended with the full evidentiary hearing on the State's
amended motion to terminate Mother's rights on May 16, 2018. Mother maintains that, on
May 16, 2018, "she was not presently unfit," and that, two years after her stipulation,
with "continuances requested and granted by the [S]tate," it was unreasonable to let the
State rely on the stipulation.

If the stipulation had been adhered to according to its strict wording, Mother's
argument might well be persuasive. At the outset of the 2018 termination hearing, the
State announced, as a preliminary matter, "Mother did enter a stipulation to present
unfitness on May 9th of 2016, so today's hearing is with regard to the issue of foreseeable
future." If that were literally true, the State would be relieved of any obligation to present
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evidence of events between May 9, 2016, and May 16, 2018, because the stipulation
would act as something like a continuing admission of unfitness.

For a district court to enter an order for termination, K.S.A. 2018 Supp. 38-
2269(a) requires both a finding "that the parent is unfit,"—present tense—and a finding
that "the conduct or condition is unlikely to change in the foreseeable future." It is
difficult to envision a situation in which the State could claim it had fulfilled its
obligation to prove current unfitness solely through reliance on a parent's two-year-old
stipulation that he or she was, at that time, unfit. And no circumstance comes to mind in
which proof that the conduct or condition is "unlikely to change" would not rely
substantially on evidence of the parent's complete history up to that time.
Notwithstanding the statement about the May 9, 2018 hearing having only the foreseeable
future as its subject, that is not how the hearing proceeded.

As we recounted above, the State's evidence was not at all limited to opinions
about Mother's prospective fitness as a parent for D.S. and K.S. Instead, it provided an
expansive review from the time the stipulation was made. This included both an
acknowledgment of her accomplishments and descriptions of the times she failed to show
progress.

The stipulation to present unfitness appears to be a nonstatutory creation, devised
to relieve the State at a future hearing from recalling witnesses and presenting evidence
that would have been offered had the stipulation not been made. When used that way, as
a marker describing the circumstances on a particular date, rather than as a rolling
admission of unfitness for each "present" date thereafter up to a final hearing, we see no
prejudice to a parent's rights. Here, since the State did provide evidence about the case
between the date of the stipulation and the final hearing and did not rely on the stipulation
as conclusive for present unfitness on May 16, 2018, Mother's argument fails.

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Clear and convincing evidence

We must consider next whether the district court had evidence it could properly
consider to be clear and convincing in support of the statutory requirements for
termination that we noted above. Again, at this stage, we decide "whether, after review of
all the evidence, viewed in the light most favorable to the State, we are convinced that a
rational factfinder could have found it highly probable, i.e. by clear and convincing
evidence, that the parent's rights should be terminated." In re K.W., 45 Kan. App. 2d at
354. We need not detail the considerable evidence before the district court, but we will
point to that court's conclusions and some of the evidence upon which the district court
was entitled to rely.

At the end of the hearing, the district court ruled from the bench. After recognizing
that Mother had progressed in some areas, the court said that, since 2016, Mother had had
a chance "to deal with the most important issue in this case": her relationship with
Father. The district court highlighted the video recordings of contacts between Mother
and Father while he was in jail and pointed out that most had occurred not long before
that hearing. The court concluded that:

"the one thing that stands out to me is it doesn't matter what [Father] does, [Mother] will
do anything to maintain this relationship. It doesn't matter how verbally abusive he is, she
will do anything to maintain this relationship. But the biggest concern I have is that
whenever these two children are exposed to [Father] and [Mother] and see[] their
interaction between each other, D.S., in particular appears to be modeling his father's
behaviors. And, obviously, it's not good for their daughter to . . . see that, because,
obviously, there's . . . a risk that she will see how her mother reacts to those situations and
will potentially seek out relationships that put her in a codependency . . . like her mom
has been on during the duration of her relationship with [Father]."

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When it arrived at those conclusions, the district court had the evidence that in
May 2016 Mother stipulated that Pierce's court report provided a factual basis for her
acknowledgment of present unfitness. Within that report, Pierce stated that he met with
Mother in August 2015 and observed she had broken fingers and two black marks under
her eyes. Mother admitted there was domestic violence with Father. But Mother told
Pierce she felt safe in her home because Father was no longer welcome there and she did
not plan to have him return. Almost three years later, the court saw recent evidence of the
state of that relationship from the videos and heard that Mother had provided financial
support to Father while he was incarcerated. The State also presented evidence at the
termination hearing that K.S. had discussed with her therapist witnessing domestic
violence and identified D.S. as her protector, while D.S. at one point expressed to his
therapist that he had grown tired of looking out for K.S.

Mother participated in individual therapy addressing the effect of domestic
violence on families, but the evidence showed that Mother's full investment in the
counseling was subject to question. In her report that was admitted into evidence,
Hernandez stated that toward the middle of her sessions with Mother, it became clear
Mother had omitted important information about Father and his pending criminal trial.
Hernandez said Mother's lack of transparency made it difficult for her to know whether
Mother was in a state of denial and unable to see how her marriage could negatively
impact her children. Hernandez wrote that she told Mother and Pierce about her agency's
decision to refer Mother to another agency "as [Mother] exhibited little interest in
processing the unhealthy marriage in detail with [Hernandez] and would most likely need
long term therapy for her concerns."

It took about eight months for Mother to follow up on that referral, again raising
questions about her commitment to that process. Then, during Mother's intake
appointment at HopeNet, she expressed that she was there to fulfill the court requirement
for her to receive counseling and to discuss her relationship with her husband so she
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could regain custody of her children. After one of her first meetings with Mother, the
HopeNet therapist, Meinhardt, noted Mother had confusion about why therapy was
required. Meinhardt further testified that Mother failed to tell her about the multiple
therapy sessions she had with Hernandez at Central Christian Counseling. And Pierce
testified that while Mother could state her understanding that she needed therapy to
address her relationship with Father, he thought she minimized that issue, and he "really
did not believe that she thought it was the issue that we thought [it] was."

Mother's witness, Dr. O'Donnell, testified that after her stipulation, she understood
her codependency issues with Father were a main issue in the case, and he provided some
counseling to her. O'Donnell saw some of the videos presented during the hearing and
agreed they showed very abusive behavior by Father, and that Mother was "not healthy."
He characterized Mother's response to one of Father's actions, involving Father's
girlfriend, as "bizarre," and also testified he was aware that Mother had not been truthful
about her relationship with Father.

The district court specifically mentioned the evidence of the couple's interactions
during Father's incarceration that showed Mother continued to have trouble interacting
with Father in a healthy way. Some videos showed Father verbally or emotionally
abusing Mother and, despite the abuse, she would tell Father she loved him and would be
there for him. Meinhardt told the district court her recommendation for Mother was to
continue with therapy to address her codependency issues, but she had no idea how long
it would take to complete that work.

In its statement from the bench, the district court found that: (1) Mother had
condoned behavior in her home that had a detrimental effect on the children, constituting
emotional abuse; (2) reasonable efforts by the agencies had failed to rehabilitate the
family because of Mother's failure to address her relationship with Father and that
relationship had directly affected the children; (3) Mother had shown a lack of effort to
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adjust her circumstances, conduct, or conditions to meet the needs of the children; and
(4) Mother had failed to carry out a reasonable plan approved by the court to reintegrate
the children into her home.

In support of those findings, the district court pointed to the existence of Mother's
unhealthy relationship with Father, the adverse effect of the relationship on the children,
and Mother's failure to take action to alter the situation to protect her children. The court
also focused on the need to move to permanency, considering the duration of the case and
difference in the way adults and children perceive time. The case had been open for
almost three years and the court saw no evidence that Mother would undertake the work
on her relationship with Father that would be needed for reintegration.

In her brief, Mother declares she agrees that the time had come for permanency so,
in that sense, she does not challenge the district court's best interest finding. She argues,
however, that the district court's decision lacked specificity on both present and future
unfitness. We disagree. The district court conceded that Mother had made progress in
some areas. Progress in those areas was important and, in many other child in need of
care cases, might have been critical to reintegration. But the obstacle to reintegration here
was not continued drug use, stable housing, or employment, but the detrimental
environment into which the children would be returned. The court was clearly persuaded
by the evidence that there was no reason to believe Mother would not accept Father back
into her home after he was released from prison several months after the termination
hearing. Mother's failure to engage meaningfully in therapy over the previous two years
included an eight-month hiatus, corroborating Pierce's belief that Mother might say she
understood the importance of addressing the relationship issues, but she did not really
accept it as a problem.

Mother also contends termination for the reasons stated by the district court is
inappropriate because she "was not told that her reintegration [was] hanging in the
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balance unless she completely terminate[d] her relationship with her husband." She also
maintains that SFCS sent mixed signals because it worked with Father as a significant
other following his release from jail in 2017. Mother claims SFCS had made that a
"secret" key to reintegration.

A district court should not direct a parent to divorce a spouse, or "completely
terminate" their relationship with a spouse, and it does not appear the district court did
that here. That is a very different matter, however, from the court and the responsible
agencies tasking a parent with addressing an unhealthy relationship that has negatively
affected the children. We admit we see inconsistency in the decision by SFCS to engage
with Father to the point of opening the possibility of visits after he relinquished his
parental rights and while SFCS was pressing mother to address her codependency with
him.

Nevertheless, Mother's claim that she was in the dark about the importance of
seriously engaging on the nature of her relationship with Father is disingenuous. The
evidence before the district court showed that was a concern that was raised multiple
times, from different sources, in various contexts. If anything, Mother's argument echoes
Pierce's statement about her saying the right things, without the commitment to do them.

The district court had ample evidence to draw from for its findings of present
unfitness and the unlikelihood of change in the foreseeable future. The district court also
had the evidence to back its finding that termination was in the best interests of D.S. and
K.S. The evidence was consistent, clear, and convincing. We find no error by the district
court.

Affirmed.