In re L.C.P.

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NOT DESIGNATED FOR PUBLICATION

No. 118,841

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of
L.C.P., B.P., R.K., and H.D.K.,
Minor Children.


MEMORANDUM OPINION

Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed August 24, 2018.
Affirmed.

Rachel I. Hockenbarger, of Topeka, for appellant.

Morgan L. Hall, assistant district attorney, and Michael F. Kagay, district attorney, for appellee.

Before MCANANY, P.J., PIERRON, J., and WALKER, S.J.

PER CURIAM: Mother appeals the termination of her parental rights, claiming the
district court had insufficient evidence to find she was unfit and termination was in the
best interests of L.P., B.P., R.K., and H.K. Finding no errors requiring reversal, we affirm
the district court's decision.

FACTS

In 2015, Mother, L.P., B.P., and R.K. moved back to Kansas from Nebraska.
Mother was unable to find housing, so she left the children with a family member but
without additional items such as money or the legal authority to care for them. The family
member contacted the Kansas Department for Children and Families (DCF) because she
could no longer care for the children. The State alleged L.P., B.P., and R.K. were children
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in need of care. The district court ordered the children into temporary custody and later
adjudicated them to be children in need of care. At the disposition hearing the court
adopted the proposed permanency plan with a goal of reintegration.

Mother gave birth to H.K. in February 2016. She admitted to using drugs in
September and October 2016. In November 2016, DCF staff visited Mother at home. She
appeared to be under the influence of drugs. Father admitted they both used
methamphetamine to work through the night and morning to clean the home. DCF
contacted law enforcement and they took H.K. into protective custody because the
parents showed "the standard effects of methamphetamine" use.

The State alleged H.K. was a child in need of care. The district court ordered H.K.
into temporary custody and later adjudicated H.K. as a child in need of care. The State
ultimately moved for findings of unfitness and termination of parental rights for all four
children.

Staff from DCF, KVC Health Systems (KVC), Kansas Children's Service League
(KCSL), a psychologist, psychotherapist, addiction counselor, and others testified at trial.
Ultimately, the district court determined there was clear and convincing evidence to find
Mother unfit on several statutory grounds: because her conduct or condition rendered her
unable to care properly for the children and this was unlikely to change in the foreseeable
future; because her mental illness was of such duration or nature as to render her unable
to care for the ongoing physical, mental, and emotional needs of the children; because her
use of illegal drugs was of such a duration or nature as to render her unable to care for the
ongoing physical, mental, or emotional needs of her children; because of the failure of
reasonable efforts made by DCF and KVC to rehabilitate the family; and based on
Mother's lack of effort to adjust to her circumstances, conduct, or conditions to meet the
needs of the children.

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Since the children were in extended out-of-home placement, the district court also
found Mother unfit because she failed to assure care of the children in her home; failed to
maintain regular visitation, contact, or communication with the children; and failed to
carry out a reasonable plan approved by the court directed toward the integration of the
children into her home.

Mother now appeals the termination of her parental rights to all four children.
Additional facts will be added as we discuss each of Mother's contentions on appeal.

ANALYSIS

A parent has a fundamental liberty interest protected by the Fourteenth
Amendment to the United States Constitution to make decisions regarding the care,
custody, and control of the parent's child. Before a parent can be deprived of the right to
the custody, care, and control of the child, the parent is entitled to due process of law. In
re Adoption of A.A.T., 287 Kan. 590, 600-01, 196 P.3d 1180 (2008); see In re X.D., 51
Kan. App. 2d 71, 74, 340 P.3d 1230 (2014) (right to be legal parent of child is
fundamental right).

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. 2017 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. 2017 Supp.
38-2269(a).

"When this court reviews a district court's 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 right should be terminated.
[Citation omitted.]." In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011).
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In any review of the district court's determination, an appellate court does not
weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions
of fact. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).

The Revised Kansas Code for Care of Children provides that the court may
terminate parental rights when a child has been adjudicated a child in need of care.
K.S.A. 2017 Supp. 38-2269(a). The statute lists nonexclusive factors the court shall
consider in making a determination of unfitness. K.S.A. 2017 Supp. 38-2269(b). The
court also must consider a separate list of nonexclusive factors when a child is not in the
parent's physical custody. K.S.A. 2017 Supp. 38-2269(c). Any one of the factors in
K.S.A. 2017 Supp. 38-2269(b) or (c) may, but does not necessarily, establish grounds for
termination of parental rights. K.S.A. 2017 Supp. 38-2269(f).

The district court found Mother unfit under K.S.A. 2017 Supp. 38-2269(a), (b)(1),
(b)(3), (b)(7), (b)(8), (b)(9), (c)(1), (c)(2), and (c)(3). In relevant part, the statute states:

"(a) When the child has been adjudicated to be a child in need of care, the court
may terminate parental rights or appoint a permanent custodian 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 a child and the conduct or condition
is unlikely to change in the foreseeable future.
"(b) In making a determination of unfitness the court shall consider, but is not
limited to, the following, if applicable:
(1) Emotional illness, mental illness, mental deficiency or physical disability of
the parent, of such duration or nature as to render the parent unable to care for the
ongoing physical, mental and emotional needs of the child;
. . . .
(3) the use of intoxicating liquors or narcotic or dangerous drugs of such duration
or nature as to render the parent unable to care for the ongoing physical, mental or
emotional needs of the child;
. . . .
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(7) failure of reasonable efforts made by appropriate public or private agencies to
rehabilitate the family;
(8) lack of effort on the part of the parent to adjust the parent's circumstances,
conduct or conditions to meet the needs of the child; and
(9) whether the child has been in extended out of home placement as a result of
actions or inactions attributable to the parent and one or more of the factors listed in
subsection (c) apply.
"(c) In addition to the foregoing, when a child is not in the physical custody of a
parent, the court, shall consider, but is not limited to, the following:
(1) Failure to assure care of the child in the parental home when able to do so;
(2) failure to maintain regular visitation, contact or communication with the child
or with the custodian of the child;
(3) failure to carry out a reasonable plan approved by the court directed toward
the integration of the child into a parental home." K.S.A. 2017 Supp. 38-2269.

Mother does not challenge the district court's findings she is unfit under K.S.A.
2017 Supp. 38-2269(b)(9) and (c)(2). The court found the children were in extended out
of home placement as a result of Mother's actions or inactions and Mother failed to
maintain regular visitation, contact, or communication, making a finding of unfitness
appropriate.

Therefore, we could simply find that these unchallenged district court findings are
sufficient to support termination under K.S.A. 2017 Supp. 38-2269(f), affirm the district
court, and end this decision right now. This is true because, under our caselaw, we may
decline to address the remainder of Mother's challenges to the district court's findings she
is unfit. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 280,
225 P.3d 707 (2010) (appellate court may decline to address appellant's challenge to
district court's ruling when district court provides alternative bases to support its ultimate
ruling on an issue and appellant fails to challenge validity of alternative bases on appeal).

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But, in the interest of completeness and in the event of future review, we will
proceed to consider Mother's additional complaints about the district court's findings. In
doing so, we have reached the conclusion that clear and convincing evidence supports the
district court's determination Mother is unfit under K.S.A. 2017 Supp. 38-2269(a), (b)(1),
(b)(3), (b)(7), (b)(8), (c)(1), and (c)(3). But each specific area of complaint will be
discussed in turn.

Unfitness due to drug use

Mother argues the district court erred in finding her unfit because of her drug use.
Although admitting she struggles with addiction, she claims she completed regional
alcohol and drug assessment center (RADAC) assessments twice, participated in drug
treatment, sought out inpatient treatment, had negative drug testing, and that she only
stopped treatment because the substance abuse counselor discontinued treatment for
seeing a psychologist.

However, clear and convincing evidence in this case supports the district court's
findings Mother was unfit because her drug use was of such duration or nature it rendered
her unable to care for the ongoing physical, mental, or emotional needs of the children.
See K.S.A. 2017 Supp. 38-2269(b)(3).

Under KVC policy, any refused drug test is considered a positive test for drugs.
Mother was informed of this policy, but she refused to submit to drug testing on
March 17, 2015, and did not submit to additional testing until June 2015. The family
moved from Kansas to Nebraska and back in June 2015. Mother left the children with a
family member, and there were still concerns of possible drug use. The State took
protective custody of the three children. Mother's hair follicle test results in July 2015
were positive for amphetamine and methamphetamine. She entered inpatient treatment in
July 2015 but left four days later against medical advice.
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While Mother was pregnant with H.K., her drug tests were negative. KVC staff
believed Mother was making progress from November 2015 to February 2016, so she
was granted two unsupervised home visits with the children near the end of February
2016. H.K. was born in February 2016.

As will be discussed later, KVC stopped Mother's unsupervised in-home visits due
to safety concerns with the home. Mother did not submit to drug testing and stopped
contacting KVC until May 2016. She apparently passed drug testing and was allowed two
supervised parenting visits, then in July KVC allowed her an additional visit. Thereafter,
Mother went missing and did not submit to drug tests and did not contact KVC until mid-
September 2016, when she admitted to avoiding testing because she was heavily using
drugs.

From October 2015 to November 2016, KCSL provided services to Mother. Early
into those services, Mother completed a RADAC assessment and no treatment was
recommended. However, Mother missed most of her requested drug testing. Mother
admitted she was using drugs again in October 2016. KCSL staff required Mother to take
an updated RADAC assessment and drug testing. The RADAC assessment was necessary
to obtain a referral for drug or alcohol treatment. Mother did not complete the RADAC
assessment or submit to new drug testing.

In November 2016, DCF staff visited Mother at home. She was extremely shaky,
refused to make eye contact, became agitated very quickly, and refused to submit to drug
testing. DCF staff believed Mother was on methamphetamine, and Father later admitted
they both used methamphetamine to work through the night and morning to clean the
home. At trial, Mother admitted she was "coming down" from methamphetamine. DCF
staff contacted law enforcement and they took H.K. into protective custody because
Mother showed "the standard effects of methamphetamine" use.

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Mother did not attend a case planning meeting shortly after H.K. was removed—
she was in Shawnee County Jail for traffic violations, pending possession of
methamphetamine charges, and a hit-and-run accident. In winter 2016, KVC staff twice
scheduled Mother for a RADAC assessment, drove to her house in Willard, Kansas, to
take her to the appointments, but she did not go.

Mother did not appear for drug tests in December 2016 or January 2017. She
contacted KVC in February 2017, tested positive for marijuana on February 2, and finally
completed her RADAC assessment on February 10. Her assessment recommended
outpatient treatment.

For about a month, Mother sporadically attended treatment. She met with Thomas
Wolfe an addiction counselor at Mirrors, Inc. near the end of February 2017. Wolfe
testified Mother attended two individual sessions and four group sessions. She missed
nine other sessions and her absence led staff to remove her from their active roster. Wolfe
testified Mother's progress was not good because a person not attending treatment rarely
achieves sobriety. According to Wolfe, while Mother was meeting with her
psychotherapist, he would not have encouraged her to stop attending treatment at Mirrors,
Inc. Wolfe did admit he did not take a proactive approach to her treatment while she was
meeting with her psychologist. In March, Mother told Wolfe she had returned to daily
drug use. In April, Mother stopped treatment and although Wolfe reached out to her, she
did not return to treatment. On May 1 she met with Wolfe because he was subpoenaed for
trial and needed her authorization to release her records. She admitted her drug addiction
was worse and she requested inpatient treatment. At the time of trial, she was not in any
treatment.

During her treatment with Wolfe, Mother failed more drug tests than she passed.
From February to March 2017, she tested negative for drugs six times, positive for
marijuana once, positive for methamphetamines once, and positive for an unspecified
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drug once. She did not appear for testing on four separate occasions—per KVC policy
those tests were deemed positive. Mother stopped showing up for drug tests in late March
and only reappeared to be tested at trial. Any tests she missed in March, April, and May
would also be deemed positive for drug use per KVC policy.

KVC staff testified Mother admitted during a trial break that she recently had
relapsed. Mother testified she had not used drugs for two or three weeks, but she tested
positive for multiple substances, including methamphetamines, at the time of trial. She
also testified she was willing to attend inpatient treatment regardless of the trial's
outcome. However, the district court gave little weight to the credibility of Mother's
testimony because of her verbal and nonverbal responses at trial, conflicting testimony
under cross-examination, and the drug test at trial was contrary to her testimony.

When determining whether factual findings are supported by clear and convincing
evidence, an appellate court does not weigh conflicting evidence, pass on the witnesses'
credibility, or redetermine questions of fact. In re Adoption of B.B.M., 290 Kan. 236, 244,
224 P.3d 1168 (2010). Based on the evidence at trial, a rational fact-finder would find it
highly probable Mother is unfit. She struggled with drug use since at least July 2015. For
nearly two years, her longest known period of sobriety was three months—November
2015 to February 2016. After H.K.'s birth, Mother stopped taking drug tests and had
minimal contact with KVC and her other children. Seven months later, she reestablished
contact with KVC and admitted she was using drugs again. Two months later, the State
placed H.K. into protective custody because of Mother's admitted methamphetamine use.
From then until trial, Mother's missed drug tests and positive tests results were greater
than her negative test results. For about one month she sporadically participated in
treatment but was admittedly using and testing positive for drugs. Weeks before trial she
admitted to Wolfe her addiction was getting worse but she was not attending any
treatment at the time of trial. Mother testified she had not used drugs in weeks, but she
tested positive for multiple substances. She also claimed she was willing to try inpatient
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treatment, but the district court doubted the credibility of her testimony. Mother now
argues Wolfe told her to stop seeking treatment, but according to Wolfe he would never
tell her to stop seeking help at Mirrors, Inc.

Clear and convincing evidence supports the district court's finding Mother was
unfit because her drug use over the course of two years, and in the months leading up to
trial, rendered her unable to care properly for the children, and her drug use was unlikely
to change in the foreseeable future. See K.S.A. 2017 Supp. 38-2269(a). Similarly, a
rational fact-finder would find it highly probable her drug use rendered her unable to care
for the ongoing physical, mental, or emotional needs of the children. See K.S.A. 2017
Supp. 38-2269(b)(3). Additionally, Mother did not make efforts to adjust her
circumstances, conduct, or conditions to meet the needs of the children as she
inconsistently attended treatment, but consistently tested positive for drug use. See
K.S.A. 2017 Supp. 38-2269(b)(8). Mother's inability to maintain consistent treatment
shows Mother failed to carry out the reasonable plan approved by the court directed
toward integration of the children into Mother's home. See K.S.A. 2017 Supp. 38-
2269(c)(3).

Mental health issues

Mother next argues there was no evidence her mental health impacted the well-
being of the children or rendered her unable to care for them. She claims she addressed
her mental health issues as requested because she obtained mental health evaluations, met
with a specialist, took medication, attended some therapy sessions, and could adequately
parent with help and treatment. Despite Mother's contentions, clear and convincing
evidence exists to support the district court's finding that Mother was unfit due to her
mental illness.

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In March 2017, psychologist Stephen Hazel met Mother and diagnosed her with
adjustment disorder with mixed disturbance of emotions and conduct, anxiety,
depression, attention deficit hyperactivity disorder (ADHD), and severe amphetamine
substance use disorder. According to Dr. Hazel, Mother had difficulty staying focused,
and had hyperactivity and impulsive behaviors. He testified her anxiety hindered her self-
confidence to parent and her ADHD negatively impacted her parenting because she
became distracted. Dr. Hazel recommended Mother obtain therapy, medication
management, abstain from drugs, actively participate in treatment, and remain drug free
for at least three to five months before she addressed other parenting issues. Mother did
not complete those recommendations.

In February and March 2017, Mother attended three therapy sessions with a
psychotherapist at Valeo Behavioral Health Care (Valeo). Mother identified her anxiety
was at a 9 out of 10, her impulsivity was a 7 out of 10, and she could focus for 25% of the
day. Mother also missed three therapy sessions. Her psychotherapist tried to reschedule
the appointments, but Mother did not return the calls or return to therapy. Mother's last
appointment was 60 days before trial. At trial, Mother's psychotherapist would not
provide a prognosis on Mother's mental health due to the little time Mother spent in
therapy.

Also in March 2017, Mother met with medical staff at Valeo. Staff prescribed
Mother nonamphetamine-based medications for her ADHD and anxiety with refills for
up to three months. Staff scheduled Mother a follow-up appointment on March 31, but
she failed to show up. At trial, the district court accepted Mother's proffer she was taking
her medication as prescribed. However, she never attended additional appointments and
she would have run out of her medication shortly after trial.

A large part of Mother's mental health diagnosis focused on her substance abuse.
According to Dr. Hazel, Mother's substance abuse was the "underlying piece" of her
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mental health issues. He testified she would be unable to adequately parent unless she
consistently attended her substance abuse programs and maintained her sobriety. He
noted Mother could not miss meetings or treatment for long periods of time. Moreover,
Dr. Hazel testified Mother would have to be sober, involved in treatment, and have clean
drug tests for at least three to five months to show she was headed towards recovery;
thereafter, she would be able to address other parenting issues. Finally, he testified it
would be very difficult for Mother to be stable and a consistent parent if she continued to
use drugs.

Mother claims there was no evidence her mental health had an impact on the well-
being of the children. Yet according to a visitation supervisor, Mother had difficulty
paying attention to her children during supervised visits, she "wasn't able to focus" on all
the children, and R.K. was often left to tend to himself. During the visits, B.K. would hit
Mother and she would not stop him. The visitation supervisor was forced to intervene and
explain to both Mother and child why this behavior and lack of parenting did not benefit
the child.

Moreover, Mother testified, "I sought out amphetamines or methamphetamines
because it helped me focus, it helped me stay on track, it helped me complete tasks." Her
admission is consistent with Dr. Hazel's diagnoses of anxiety and ADHD, her self-
reported high levels of anxiety and lack of focus, and the testimony that her lack of focus
impacted her parenting during supervised visitation. Thus, the evidence before the district
court clearly showed that Mother's unfitness was directly related to her ongoing drug use,
which consequentially resulted in failure to address her mental health issues. Her
psychological issues, her drug use over the course of two years, her sporadic drug
treatment, and her frequent positive drug tests show Mother was not sober, in treatment,
or clean for the three to five months she would need to before she could address her other
parenting issues.

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Under these circumstances, a rational fact-finder would find it highly probable
Mother was unable to care properly for the children. Her mental health impacted her
focus on parenting and it was unlikely to change in the foreseeable future, since she was
not attending therapy and had not made the necessary arrangements to continue her
prescription medication. See K.S.A. 2017 Supp. 38-2269(a). Moreover, the record
supports a finding of clear and convincing evidence Mother's mental illness was of such
duration or nature as to render the parent unable to care for the ongoing physical, mental
and emotional needs of the children. See K.S.A. 2017 Supp. 38-2269(b)(1). A rational
fact-finder would find it highly probable Mother was unfit because she lacked effort to
adjust her circumstances, conduct, or conditions to meet the needs of the children because
she was not attending therapy. See K.S.A. 2017 Supp. 38-2269(b)(8). Additionally,
Mother's inability to attend therapy supports a finding she was unfit because she failed to
carry out the reasonable plan approved by the court directed toward integration of the
children into Mother's home. See K.S.A. 2017 Supp. 38-2269(c)(3).

Housing issues

Mother next contends that, despite her financial challenges, she routinely took
steps to ensure the children received housing and care. She claims she moved to
Nebraska to provide a better home for the children, and returned to Willard to provide an
adequate home for them. She also argues when she was unable to provide care, she
placed the children with other family members.

However, clear and convincing evidence supports the district court's conclusion
Mother was unfit for failing to assure care of the children in the parental home when able
to do so. See K.S.A. 38-2269(c)(1). Mother and Father moved the children to Nebraska in
spring 2015. At trial, Mother admitted she and the children were living in a homeless
shelter in Nebraska. Mother testified that after she moved back to Topeka, she and Father
were living in a tent next to railroad tracks. Mother placed the children with another
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family member. According to a DCF social worker, the family member contacted DCF
because the family member could no longer afford to take care of the children.

In February 2016, Mother was living in Willard, and DCF set up two unsupervised
visits there. According to KVC family support worker Kathy Swank, who was
coordinating the home visits, it was cold and the house relied on a wood burning stove to
keep warm. The stove had no protections around it to keep the children safe. Swank told
Mother and Father they could not leave the children alone because the stove was hot. At
the time, R.K. was crawling and learning to be independent. The parents assured Swank
they would watch the children.

Upon returning after the visitation was over, Swank was unable to get anyone to
answer the door. When Swank walked in, she observed R.K. to be unsupervised in the
living room and eating crumbs off the floor. The parents were in bedrooms playing with
the other children but were not supervising R.K. At the next visit, there was no fire in the
wood burning stove when Swank arrived. Swank told Mother to start a fire for heat, but
instead Mother went back to bed until all of the children arrived with another worker.
Before leaving, Swank again advised Mother to start a fire. When Swank returned, the
fire had not been started and everyone still had on their coats. Because of safety concerns
arising out of these unsupervised visits, Mother's visitation was switched to being
supervised at the DCF offices.

According to Mother, she moved away from Willard around January 2017. From
there, she stayed with her mom for a few days, a friend for a few days, and then moved in
with another couple. The couple eventually removed Mother from their home, and
Mother tried staying with her aunt. According to Mother, she then relapsed. From then
until trial, Mother admitted living on and off with her mom.

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The evidence clearly shows Mother did not assure the care of the children when
they were in her home. Mother and the children moved to Nebraska and lived in a
homeless shelter. They then returned to Kansas and at some point Mother and Father
were homeless and living in a tent by the railroad tracks in Topeka. While Mother did
leave them in the care of family, the family member was unable to provide care for the
children. Mother's best efforts at assuring for their care came when she had her home in
Willard. But even then, she failed to provide protection from the wood burning stove on
one occasion and on the other, failed to keep the house warm. In the months before trial,
Mother's residence was temporary at best.

Given this evidence, a rational fact-finder would find it highly probable Mother
was unable to care properly for the children and her lack of suitable housing was unlikely
to change in the foreseeable future. See K.S.A. 2017 Supp. 38-2269(a). From nearly the
start of this case, Mother has had issues with providing suitable housing for the children.
The evidence supports a finding Mother is unfit because she lacked effort to adjust her
housing circumstances or conditions to meet the needs of the children. See K.S.A. 2017
Supp. 38-2269(b)(8). Additionally, the evidence supports finding Mother failed to assure
care of the child in the parental home when able to do so. See K.S.A. 2017 Supp. 38-
2269(c)(1). Finally, the clear and convincing evidence of her lack of suitable housing
supports finding Mother was unfit for failing to carry out the reasonable plan approved by
the court directed toward integration of the children into Mother's home. See K.S.A. 2017
Supp. 38-2269(c)(3).

Reasonable efforts to rehabilitate the family

Mother next challenges the work provided by DCF and KVC, claiming public and
private agencies did not make reasonable efforts to rehabilitate the family; thus, there
cannot be a failure of those efforts under K.S.A. 2017 Supp. 38-2269(b)(7). Additionally,
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Mother urges this court to change the statutory standard and instead require the agencies
to make effective efforts.

K.S.A. 2017 Supp. 38-2269(b)(7) requires public and private agencies make
reasonable efforts to rehabilitate the family, and when those efforts fail, a finding of
parental unfitness is appropriate. As Mother readily acknowledges, agency action does
not require an exhaustion of all resources or a "herculean effort." See In re J.L., 116,293,
2017 WL 1832348, at *4 (Kan. App.) (unpublished opinion), rev. denied 307 Kan. 987
(2017).

Mother's contention that the statute should be interpreted to require effective,
rather than reasonable efforts to achieve rehabilitation of the family lacks merit for two
reasons. First, it is contrary to the language of the statute itself and our well-developed
body of caselaw surrounding what constitutes "reasonable efforts." Second, and equally
important, basic logic compels the conclusion that requiring "effective efforts" of public
and private agencies would allow parents to easily defeat the purposes of the statute, i.e.,
the protection and care of children, simply by not cooperating with those agencies.

Here, there is clear and convincing evidence to support DCF and KVC made
reasonable efforts to rehabilitate the family. Nicki Unfred from KVC testified KVC held
multiple meetings for the family to attempt to help Mother work through her drug,
housing, and mental health issues. Unfred testified DCF attempted to give Mother visits
with the children once a week if Mother provided negative drug tests for two consecutive
weeks. Mother was mostly unable to do so. Mother chose to move to Willard, which
made completing her case plans difficult. There was no public transportation between
Willard and Topeka. Unfred testified the agency gave gas cards to Mother to drive from
Willard to Topeka to participate in drug testing and complete other case plans. Unfred
also encouraged Mother to contact her maternal grandmother to request help with
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transportation. Swank also testified that KVC provided gas cards to Mother for
transportation.

Unfred further testified that in February 2016, when Mother was able to provide
negative drug tests, DCF gave Mother two unsupervised visits in her home in Willard.
Concerns with her Willard home were so serious DCF had to change the visits to
supervised at DCF offices.

In October 2016 Mother admitted she was using drugs again, so agency staff
required Mother to take an updated RADAC assessment so she could attend treatment.
KVC did not allow their employees to transport parents. Despite this policy, Unfred
testified she attempted to personally provide transportation for Mother to attend another
scheduled RADAC. Unfred knocked on Mother's door for over 15 minutes and when
Mother finally answered, she admitted to using drugs. Due to Mother's delay, she missed
the RADAC appointment and Unfred rescheduled it. Swank testified she attempted to
drive Mother to the next appointment, went to Mother's home in Willard, but no one
answered the door.

Throughout this case, Mother frequently failed to communicate with DCF or KVC
staff or wholly failed to participate in their efforts to rehabilitate the family. According to
Unfred, Mother stopped contacting the agencies in February 2016 and did not reach out
again until May 2016. Mother had three supervised parenting visits then went missing.
She did not contact KVC again until September 2016. Unfred testified Mother admitted
to avoiding the agency because of her heavy drug use. Unfred met with Mother in
October 2016, and H.K. was removed in November 2016. Mother did not attend a case
planning meeting shortly after H.K. was removed—Mother was in Shawnee County Jail
for traffic violations, pending possession of methamphetamine charges, and a hit-and-run
accident. Mother contacted KVC again in February 2017 but stopped contacting KVC in
March 2017—about two months before trial.
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At a minimum, Mother had about a two-year struggle with drugs before her
parental rights were terminated. To rehabilitate as a parent, she needed to maintain her
sobriety and attend treatment. To begin treatment, she needed to complete a RADAC so
she could be referred. KVC staff twice scheduled and tried to directly transport her to
those assessments. They also provided her with gas cards and other suggestions to
complete other case requirements, but Mother's lack of participation in 2016 prevented
the three oldest children from being reintegrated. When her drug use was near its height
in November 2016, H.K. was removed. Mother sparsely attended treatment in spring
2017 and stopped communicating with KVC and DCF.

The purpose of the reasonable efforts requirement is to provide a parent the
opportunity to succeed, but to do so the parent must exert some effort. Clear and
convincing evidence supports the district court's findings reasonable efforts were made
by the agencies to rehabilitate the family, but those efforts were ultimately unsuccessful.
See K.S.A. 38-2269(b)(7).

Alleged abuse of discretion in terminating Mother's rights

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. 2017 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. 2017 Supp. 38-2269(g)(1). The district court is in the best position to make
findings on the best interests of the children; its judgment will not be disturbed absent an
abuse of discretion. In re K.P., 44 Kan. App. 2d 316, 322, 235 P.3d 1255 (2010). "A
district court abuses its discretion when no reasonable person would agree with its
decision or the decision is based on a legal or factual error." In re R.S., 50 Kan. App. 2d
1105, Syl. ¶ 2, 336 P.3d 903 (2014).

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Mother argues the district court erred in finding it was in the best interests of the
children to terminate her rights because the court did not give adequate weight to the
needs of the love and bonding she had with the children when balancing the rights of
children, the State, and Mother. She also asserts her fundamental liberty interest in
exercising the care, custody, and control of the children and cites to In re L.B., 42 Kan.
App. 2d 837, 841, 217 P.3d 1004 (2009), to argue the district court did not properly apply
a balancing test to determine whose interests—the State's, the children's, or Mother's—
trumps the others.

However, In re L.B. held the balancing test applies to whether to grant untimely
appeal of the prior temporary custody orders and findings the child was in need of care.
42 Kan. App. 2d at 842-44. Moreover, this court has previously noted the appropriate
standard of review for whether parental rights termination is in the child's best interests is
no longer the clear and convincing standard used in In re L.B., but is the abuse of
discretion standard. In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 2.

The district court concluded under K.S.A. 2017 Supp. 38-2269(a) that Mother's
conduct and conditions were unlikely to change in the foreseeable future and it was:

"imperative these children find permanence in a nurturing and stable home providing
them with structure, guidance, love, support and medical/psychological treatment. Those
needs can best be provided by parents or parental figures who place the children's needs
above their own. This Court finds it is in the children's best interests to terminate the
parental rights of Mother and Father because they are not now, nor will ever be, capable
of providing the level of care sufficient for their emotional, physical and psychological
health."

Based on the evidence presented, Mother was using drugs consistently over the
past two years, tested positive for drugs at trial, was not attending treatment, and had not
done so for over 30 days. Additionally, her mental health prevented her from focusing on
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parenting the children, but she was not attending counseling and did not follow up for
additional medication. Finally, her housing was best when she lived in Willard but still
inappropriate for the children because of the issues with the wood burning stove. Living
in Willard made it difficult for her to travel and complete her plan requirements. After
moving away from Willard, she had no stable housing.

Here, it is clear the district court did not abuse its discretion. The district court
gave primary consideration to the physical, mental, and emotional needs of the children.
See K.S.A. 2017 Supp. 38-2269(g)(1). A reasonable person could agree Mother's parental
rights should be terminated. We find no abuse of discretion, and thus the district court did
not err.

Affirmed.