In re N.S.

1

NOT DESIGNATED FOR PUBLICATION

Nos. 119,786
119,787


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of N.S. and O.S.,
Minor Children.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; MICHAEL D. GIBBENS, judge. Opinion filed March 1,
2019. Affirmed.

Charles Joseph Osborn, of Osborn Law Office, LLC, of Leavenworth, for appellant natural
mother.

Meredith D. Mazza, assistant county attorney, and Todd Thompson, county attorney, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and HILL, JJ.

PER CURIAM: Mother appeals the appointment of permanent custodians for her
children O.S. and N.S. Mother argues that evidence did not support the trial court's
findings that she was unfit and likely to remain unfit in the foreseeable future. For the
reasons stated below, we affirm.

S.K. ("Mother") is the mother of O.S., born 2002, and N.S., born 2005. The
children's father died in 2013.

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On August 3, 2016, O.S. and N.S.'s paternal grandmother and paternal great uncle
contacted DCF. At the time, O.S. was 14 years old and N.S. was 11 years old. Amie
Fleury, a DCF social worker, was assigned to the case.

Fleury interviewed O.S. and N.S., as well as their paternal grandmother and
paternal great uncle. N.S. was staying with the paternal grandparents and O.S. was
staying with the paternal great uncle; the paternal grandparents and paternal great uncle
live next door to each other. The paternal grandparents are also raising O.S. and N.S.'s
half-sister.

The relatives told Fleury that Mother had dropped the children off at their homes
in July 2016 because Mother was homeless and "bouncing around" between residences.
Before being dropped off with paternal relatives, the children had been living at different
friends' houses since the beginning of June 2016. O.S. and N.S. reported that prior to
being dropped off at their paternal relatives' homes, they frequently moved from place to
place, including a stint where Mother, Mother's boyfriend, and the children all lived in
one room. When the children arrived at the paternal relatives' homes, they had one
change of clothes each, and N.S. had a bad case of head lice. O.S. was a rising high
school freshman but was reading at a third or fourth grade level.

The relatives were concerned about Mother's homelessness, thought Mother may
be using drugs, and needed to enroll the children in school for the coming year but did
not have power of attorney to do so. The relatives had tried to contact Mother about
enrolling the children in school but could not get ahold of her. Fleury attempted to
contact Mother and left a phone message, but Mother did not return the message. Fleury
swore out an affidavit to support child in need of care (CINC) petitions by the State.

On August 12, 2016, the State filed CINC petitions alleging that O.S. and N.S.
were children in need of care. On the same day, the trial court placed O.S. and N.S. in
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DCF custody; the children's placements were with their paternal relatives, continuing
their existing living arrangements. The trial court also appointed a guardian ad litem for
both children. After the children were placed in DCF custody on August 12, 2016,
Mother contacted Fleury. Fleury told Mother that the children were in DCF custody;
Mother got upset and threatened to come take her kids from custody.

On December 19, 2016, the trial court adjudicated O.S. and N.S. as children in
need of care because they were "without adequate parental care, control or subsistence
and the condition is not due solely to the lack of financial means of the child[ren]'s
parents." The trial court ordered that O.S. and N.S. remain in DCF custody but ordered
the development of a reintegration plan for Mother. The trial court also ordered that
Mother may have supervised visitation contingent on negative drug tests. The children
remained in their placements with N.S. at their paternal grandparents' home and O.S. at
their paternal great uncle's home.

On January 24, 2017, the trial court adopted a reintegration plan for Mother. The
plan required Mother to obtain safe and stable housing and provide proof of rent and
utility payment to KVC Behavioral Healthcare (KVC); to provide monthly income
verification and submit a budget; to participate in mental health services; to submit to
random urinalysis tests (UAs) and test negative; to abide by all court orders; to apprise
KVC of all changes in contact information; and to actively participate in court-ordered
visitation, contingent on negative UAs. On March 28, 2017, the trial court ordered
Mother to engage in family therapy services with O.S. and N.S., "to begin when
considered appropriate by KVC."

On October 24, 2017, the State requested appointment of permanent custodians for
O.S. and N.S. The State alleged that Mother was unfit and would continue to be unfit in
the foreseeable future for several reasons. The reasons included:

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"Emotional illness, mental illness, mental deficiency or physical disability of the parent,
of such duration or nature as to render the parent unlikely to care for the ongoing
physical, mental, and emotional needs of the child;
. . . .
"excessive use of intoxicating liquors or narcotic or dangerous drugs;
. . . .
"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;
"failure to assure care of the child in the parental home when able to do so;
"failure to maintain regular visitation, contact [or] communication with the child or with
the custodian of the child;
"failure to carry out a reasonable plan approved by the court directed toward the
integration of the child into the parental home."

The State's petition alleged that O.S. had "no desire to reintegrate with his mother due to
past circumstances." The State also cited Mother's ongoing drug use. Further, the State
alleged that Mother continually missed appointments with KVC.

The court held a bifurcated trial on the State's motion. The first portion was held
on December 20, 2017. Mother appeared in person with her attorney. Fleury, paternal
great uncle, paternal grandmother, and Dustin Shandy, O.S. and N.S.'s case manager at
KVC, testified on behalf of the State. Fleury testified about the allegations in her affidavit
and Mother's threat to pick up the children from DCF custody on August 12, 2016.

Paternal great uncle testified that when Mother dropped off O.S. and N.S. in early
July 2016, there was no understanding that it would be a long-term arrangement; the
paternal relatives thought they would be caring for the children for a weekend. When the
weekend ended, the paternal relatives could not get ahold of Mother until Mother came
for N.S.'s birthday in mid-July, took the children for a few days, then returned the
children to the paternal relatives before leaving again. Once Mother dropped off the
children after N.S.'s birthday, the paternal relatives again could not get ahold of her. They
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became concerned because the deadline to enroll the children in school was approaching
and they did not have legal authority to enroll the children. Paternal great uncle testified
that the paternal relatives met with Mother's mother and stepfather and together agreed to
contact DCF to enroll the children in school since Mother was unreachable.

Paternal great uncle further testified that when the children arrived at the paternal
relatives' homes, they each had only one change of clothes. O.S. had one pair of tennis
shoes, and N.S. had a pair of flip-flops. O.S., who was a rising freshman, was only
reading at a third or fourth grade level. Paternal great uncle testified that during the 18
months that he had custody of O.S., he worked with O.S. on reading skills for an hour
every night, and by the time of trial O.S. was reading at an eighth grade level. He testified
that when he first got custody of O.S., his grades were poor: he was receiving Ds and his
best grade was a B in gym. After staying with paternal great uncle, by the time of trial,
his grades were mostly As and Bs with one C. Paternal great uncle testified that he was
discussing college possibilities with O.S., and O.S. was excited at the prospect of going
to college and had a scholarship lined up. Paternal great uncle testified that O.S. had seen
Mother between 12-15 times since August 2016, and that O.S. declined to speak to
Mother when she called. Paternal great uncle also testified that O.S. expressed a desire to
no longer have Mother in his life, and that when O.S. was required to see Mother for
reintegration plan tasks, he came away angry and frustrated.

Paternal grandmother testified that when Mother dropped the children off with the
paternal relatives in 2016, Mother was homeless. She testified that when N.S. arrived at
the paternal relatives' homes, she had a severe case of head lice. Paternal grandmother
said that she suspected for a "long time" that Mother was using drugs starting several
years before the DCF case. She based this suspicion on Mother's erratic behavior and
appearance.

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Paternal grandmother also testified that N.S. felt stable and comfortable in the
paternal grandparents' home. She testified that N.S. was very close to her 17-year-old
half-sister who also lives in the home. She testified that Mother would show up
unannounced at the paternal relatives' homes and leave items for the children. She
testified that N.S. would speak to her Mother on the phone when she called
approximately once a week, but that she was not very engaged in the conversations.

Dustin Shandy, the children's case manager, testified that the children's KVC file
was an accurate reflection of the services provided to the family; Mother stipulated to the
file as a business record. Shandy addressed Mother's progress on the reintegration plan
tasks.

With respect to finding safe and stable housing, Shandy testified that Mother
currently lived with her parents in Missouri and had done so since March 2017. She
testified that between August 2016 and March 2017, Mother was homeless and
"bounced" between different places without having a home of her own. She testified that
Mother had provided proof of a renter's education program for Douglas County, Kansas,
but had not yet secured housing.

With respect to developing a monthly income and completing a budget, Shandy
testified that Mother had a seasonal job from fall 2016 to February 2017, and began
working a part-time job (27 to 32 hours a week) in February 2017. She testified that
Mother was still working at the part-time job as of the time of trial. She testified that the
budget Mother submitted showed that she did not have the resources to support the
children without state assistance.

With respect to mental health services, Shandy testified that Mother did an intake
at the Guidance Center but was unable to continue services because she was no longer a
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Kansas resident. Shandy testified that at the time of trial, Mother was not receiving any
mental health services.

With respect to drug testing, Shandy explained that Mother often tested positive
for methamphetamine and/or amphetamines and frequently failed to show up to test when
required. Mother no-showed three UAs in December 2016. She no-showed one UA in
January 2017 and tested positive for methamphetamine at two other UAs. In February
2017, Mother tested positive once for amphetamines and once for methamphetamine. In
March 2017, Mother no-showed three times and had one negative test with a faint line for
meth. In April 2017, Mother tested positive once for meth and amphetamines. She no-
showed all her UAs in May 2017. She no-showed all her UAs in June 2017, except for
one instance where a court ordered her to go to community corrections on June 27th, and
she tested positive for methamphetamine. She no-showed four times in July 2017. She
no-showed three times in August 2017. In September 2017, she no-showed twice and had
two tests that were negative but had faint lines for methamphetamine. She no-showed all
her UAs in October 2017. She no-showed twice in November 2017. On December 14th,
the week before the trial, Shandy performed a mouth swab on Mother, and it was positive
for methamphetamine and amphetamines. Shandy testified that Mother provided no
verification of drug treatment at any point in the case. She testified that KVC's policies
required Mother to have two consecutive negative UAs in order to visit the children.
Shandy further testified that KVC staff offered to help Mother "work it out some way" if
she could not make it to Kansas for a UA because of transportation issues but that Mother
had to contact KVC in order for them to help. She said that Mother only contacted her
once asking for an alternative arrangement for a scheduled UA.

Shandy also described Mother's difficulty adhering to the rules and requirements
of her reintegration plan. She testified that Mother missed the most recent case plan
meeting in August 2017. She testified that on August 16, 2017, Mother showed up at the
KVC office and demanded visits. After being told that the visits had to be supervised,
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Mother left the office and picked up N.S. from her placement for an unauthorized visit.
She testified that in December 2016, Mother left a voicemail for O.S. where she yelled
and cussed at him; O.S. forwarded this voicemail to the case manager at the time. She
testified that Mother had no authorized visits with the children from the beginning of the
case until November 2017, due in large part to the requirement that Mother produce two
consecutive clean UAs before visitation. Shandy also testified that Mother missed the
first of four scheduled family therapy sessions and was 45 minutes late for the second
one. She testified that she had to stop the last family therapy session on December 14,
2017, because Mother and O.S. were yelling at each other.

Shandy testified that she did not believe Mother was capable of parenting O.S.,
and that Mother could parent N.S. only if she stopped taking methamphetamine.

The second portion of the bifurcated trial was held January 17, 2018. Mother again
appeared in person with her attorney. During this hearing, O.S.'s therapist, Walter Louis,
testified for the State, and Mother and maternal grandmother testified on Mother's behalf.

Maternal grandmother testified that Mother lived with her in Missouri full time
from November 2016 until the time of trial. She testified that prior to November 2016,
Mother would sometimes stay at maternal grandmother's home, but would "just take off"
and maternal grandmother would not know where she went. She testified that Mother
lived with the children continuously from the time they were born until July 2016. She
testified that Mother was attentive to the children's educational, medical, and other needs.
She attributed O.S.'s anger and frustration with Mother to the limited contact he had with
her over the past 18 months. She testified that she did not know Mother was using
methamphetamine until she heard Shandy's testimony during the first part of the hearing.

Mother testified that after the children's father, her common-law husband, died in
2013, she struggled emotionally and financially. She testified that despite this, she
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remained committed to caring for the children and fulfilling their needs. She testified that
when O.S. was in the eighth grade, he was reading at grade level, but said that his reading
level dropped every summer and that the stress and trauma of moving during the summer
of 2016 contributed to his low reading level at the start of high school. She said that when
she dropped the children off with their paternal relatives in July 2016, she asked the
relatives to watch the children for two months so that she could find a job and secure a
place to live. She testified that she always had a great relationship with her children. She
attributed the tension between herself and the children to the children's difficulty
accepting their Mother's new relationships after their father's death and the prolonged
separation from their Mother during the case. She attributed her numerous no-show UAs
to transportation problems like car breakdowns and an inability to get a ride from her
mother or stepfather. She testified that she applied for and was approved for low income
housing in Lawrence, Kansas, but had not yet moved in. She said that she failed to
complete many of her reintegration plan tasks because KVC failed to communicate with
her and it was hard to get to KVC from her mother's house in Missouri. She said that the
reason she missed KVC meetings and appointments was because KVC failed to contact
her.

She admitted to using methamphetamine and testing positive on UAs but claimed
she did not start doing methamphetamine until January 2017. Then, she said that she had
actually done methamphetamine in August 2016 after the children were placed in DCF
custody. She claimed that some of the times when she tested positive for meth, she had
not actually done meth but was merely exposed to it at her job. She admitted to using
methamphetamine when she tested positive the week before trial. She said she only used
methamphetamine because she was separated from her children, and that she was not
addicted and did not have a problem. She said "I can go without it. I can pick it up, I can
leave it. I don't give a fu—excuse my French. I don't give two effs about. It does not
matter to me. I did not start it until my children left me." She said she did understand that
her visits were contingent on negative UAs.
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Mother also admitted to leaving O.S. the voicemail where she swore at him and
said she would "whoop his ass" but said she did not mean she would physically hurt him.
She said that she meant she would punish him for being disrespectful but said she never
physically hurt her children.

During closing, the State emphasized that they were not trying to entirely sever
Mother's contact with the children but instead wanted to appoint permanent custodians.
The State noted, however, that termination of Mother's parental rights may have also
been appropriate given the facts of the case. The State emphasized Mother's drug use as
an ongoing problem and highlighted the fact that Mother could have had significantly
more contact with the children if she had produced negative UAs, but she failed to do so.
The State said Mother had failed to do most of her reintegration tasks.

During Mother's closing, she argued that her drug use was a form of self-
medication following the loss of her husband and separation from her children. She
highlighted her bond with the children, particularly N.S. She requested that the court not
grant a permanent custodianship or, in the alternative, if the court did grant a permanent
custodianship, that the court reserve jurisdiction so that Mother's parental rights were not
terminated.

In his closing, the children's guardian ad litem requested that the court grant
paternal great uncle and paternal grandmother permanent custodianship of the children.

In addition to the testimony at trial, the trial court took judicial notice of the
children's KVC files. The trial court stated it was concluding the evidence portion of the
trial after Mother testified. After closing statements, the trial court took the matter under
advisement.

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On May 14, 2018, the trial court entered an order finding clear and convincing
evidence that Mother was unfit. The trial court noted the presumption that Mother was
unfit under K.S.A. 2017 Supp. 38-2271 because O.S. and N.S. were in an out-of-home
placement for more than a year and Mother substantially neglected or willfully refused to
carry out a reasonable reintegration plan. The trial court also found that additional factors
of unfitness under K.S.A. 2017 Supp. 38-2269 applied. These factors included:

"1. Failure of reasonable efforts made by appropriate public and private agencies to
rehabilitate the family; 2. Failure to assure care of the children in the parental home when
able to do so; 3. Failure to carry out a reasonable plan approved by the court directed
toward the integration of the children into a parental home."

As a result, the trial court ordered the appointment of permanent custodians for O.S. and
N.S. The trial court did not, however, terminate Mother's parental rights.

Mother timely appealed.

Were the Trial Court's Findings of Parental Unfitness Supported by Clear and
Convincing Evidence?

"When [a] 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." K.S.A. 2017 Supp. 38-2269(a).

K.S.A. 2017 Supp. 38-2269(b) and (c) provide a nonexhaustive list of factors
courts may consider to determine whether a parent is unfit. Any one of the factors listed
in K.S.A. 2017 Supp. 38-2269(b) or (c) can sufficiently establish grounds for termination
of parental rights. K.S.A. 2017 Supp. 38-2269(f).
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Additionally, under K.S.A. 2017 Supp. 38-2271(a)(5) there is a legal presumption
of parental unfitness when the State establishes by clear and convincing evidence that the
child has been in an out-of-home placement under court order for a cumulative period of
at least one year and "the parent has substantially neglected or willfully refused to carry
out" a reasonable court-approved reintegration plan. When this presumption applies,
"[t]he burden of proof is on the parent to rebut the presumption of unfitness by a
preponderance of the evidence." K.S.A. 2017 Supp. 38-2271(b).

When this court reviews a trial court's determination of parental unfitness and
unlikelihood of change, it reviews the record in the light most favorable to the prevailing
party and determines whether a rational fact-finder could have found the decision "highly
probable, i.e., [supported] by clear and convincing evidence." In re B.D.-Y., 286 Kan.
686, 705, 187 P.3d 594 (2008). When conducting clear and convincing evidence review,
this court does not "weigh conflicting evidence, pass on credibility of witnesses, or
redetermine questions of fact." 286 Kan. at 705. Clear and convincing evidence "is an
intermediate standard of proof between a preponderance of the evidence and beyond a
reasonable doubt." 286 Kan. at 691.

Here, the trial court found that a presumption of unfitness applied because O.S.
and N.S. were in an out-of-home placement for more than a year and Mother had
substantially neglected or willfully refused to carry out the reintegration plan. The trial
court further found that Mother failed to rebut the presumption by a preponderance of the
evidence. Mother conceded that O.S. and N.S. were in an out-of-home placement for at
least a year.

The trial court also found that Mother was unfit because the following factors
from K.S.A. 2017 Supp. 38-2269(b) and (c) applied:

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"1. Failure of reasonable efforts made by appropriate public and private agencies
to rehabilitate the family [K.S.A. 2017 Supp. 38-2269(b)(7)]; 2. Failure to assure care of
the children in the parental home when able to do so [K.S.A. 2017 Supp. 38-2269(c)(1)];
3. Failure to carry out a reasonable plan approved by the court directed toward the
integration of the children into a parental home [K.S.A. 2017 Supp. 38-2269(c)(3)]."

On appeal, Mother contests two of the three factors that the trial court found
weighed in favor of a finding of unfitness. First, she argues that there was insufficient
evidence to support the trial court's finding that reasonable agency efforts to rehabilitate
the family had failed. Second, she argues that "it defies logic" to weigh "failure to assure
care of the child in the parental home when able to do so" against her because she was
homeless. Mother does not support either of these arguments with any authority.

Mother also argues that there was insufficient evidence to support the presumption
of unfitness, and that if the presumption was properly applied, she nevertheless satisfied
her burden to refute it. Last, she argues that there was no evidence that she would
continue to be an unfit parent in the foreseeable future.

This opinion addresses each of Mother's arguments in turn.

Failure of reasonable reintegration efforts: K.S.A. 2017 Supp. 38-2269(b)(7)

As stated above, Mother fails to provide any authority to support her argument on
this issue. "A failure to support an argument with pertinent authority or to 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." Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636,
645, 294 P.3d 287 (2013). Arguments not supported with pertinent authority are thus
deemed to be waived and abandoned. 296 Kan. at 645.

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Mother also fails to support this argument with citations to the record. In fact, her
entire argument on this issue is as follows:

"Use of the 'failure of reasonable efforts made by appropriate public or private
agencies to rehabilitate the family' to support a finding of unfitness by its very language
requires that some sort of 'reasonable efforts' had been made. In the instant case,
responsibility for reintegration and visitation was passed from case manager to case
manager. Moreover, the record is replete with evidence of Appellant's attempts to contact
various workers and remain in touch with her children. If
As a result, there is insufficient evidence on the record to support this point."

Mother provides no citation to the record in support of her claim that "responsibility
for reintegration and visitation was passed from case manager to case manager." She
provides no argument as to why the alleged transition from one case manager to another
equates to a total lack of reasonable efforts at reintegration, as she suggests. The only facts
taken from Mother's statement of the facts that can be construed in support of her arguments
on this issue are as follows:

"10. KVC Case Manager Dustin Shandy testified that Appellant-Natural Mother had
attended five (5) supervised visits with the children since Ms. Shandy became involved
with the case. Vol. 3, Pg. 110

"11. KVC Case Manager Shandy further testified that Appellant-Natural Mother had
been consistent in her contacts with KVC since Ms. Shandy became involved with the
case, had provided proof of employment and that she had regularly attempted to have
contact with the children. Vol. 3, Pg. 116; Pg. 130-140"

These two facts hardly equate to a total lack of rehabilitative efforts and a record
"replete" with efforts by Mother to contact KVC and her children. "When facts are
necessary to an argument, the record must supply these facts and a party relying on those
facts must provide an appellate court with a specific citation to the point in the record
where the fact can be verified." Friedman, 296 Kan. at 643. Mother has failed to supply
15

the facts necessary to establish her argument that she received no reasonable
rehabilitative services.

The State correctly argues the evidence shows that Mother did receive reasonable
efforts to rehabilitate the family but failed to take advantage of them. Mother was eligible
for supervised visitation at any point after the reintegration plan was adopted in January
2017, so long as she produced two consecutive negative UAs. Nevertheless, Mother did
not have a supervised visit with the children until November 2017. As a result, Mother
only had five authorized visits with the children between January 2017 and the beginning
of the trial in December 2017. Mother's case manager also scheduled a meeting with
Mother to review the case plan in August 2017, but Mother did not show up to the
appointment. Additionally, KVC provided family therapy appointments for Mother and
the children; Mother did not show up for the first of the four sessions and was 45 minutes
late to the second. Shandy also testified that she offered to help Mother figure out a way
to make UA appointments despite living in Missouri, but that Mother had to contact KVC
for them to help her. Shandy testified that Mother only took her up on this offer one time.

Applying the correct clear and convincing standard of review and reviewing all of
the evidence in the light most favorable to the State, this court affirms the trial court's
finding that this factor weighed in favor of a finding of unfitness. Contrary to Mother's
claims on appeal, the record establishes that KVC offered Mother reasonable
rehabilitative efforts.

Failure to assure care of the children in the parental home: K.S.A. 2017 Supp.
38-2269(c)(1)

Much as with the prior factor, Mother failed to support her argument on this issue
with any authority or citations to the record. Indeed, the entirety of Mother's argument on
this issue is as follows:
16


"Similarly, the 'failure to assure care of the child in the parental home when able
to do so' is by its own language reliant on the parent having a home in which to assure
such care. The evidence shows that, in the wake of her husband's death, housing
insecurity was the precise reason the Appellant-Natural Mother left the minors with
family to begin with. It defies logic to base the removal of children on both mother's
homelessness and her failure to assure care of her children in her home when she was
able."

Once again, Mother's failure to support her argument with either legal authority or
citations to the record likely results in waiver of this argument. See Friedman, 296 Kan.
at 643, 645.

The State argues that the record here, when construed in the light most favorable
to the State, shows that it was possible that Mother could have had a place to stay but
chose not to. Maternal grandmother testified that Mother and the children lived with her
in her Missouri home from June 2014 to July 2015. She testified that Mother and the
children moved out when maternal grandmother and maternal stepgrandfather had to
move in with maternal stepgrandfather's mother in a retirement community that did not
allow children. Maternal grandmother did not testify as to when, if ever, she stopped
residing in the retirement community. She did testify that Mother began to live with her
full time again in November 2016 and stayed with her sporadically before November
2016. Mother testified that after she moved out of maternal grandmother's house, she
moved in with a boyfriend. She said that she dropped the children off with the paternal
relatives after she was asked to leave where she had been living with her boyfriend in the
summer of 2016.

In this record, it is unclear whether Mother could have lived with the children at
maternal grandmother's house from July to August 2016 when she dropped the children
off with paternal relatives. Even so, there is clear and convincing evidence of Mother's
unfitness.
17


Notably, Mother did not address on appeal the third factor cited by the court as
grounds for parental unfitness: "Failure to carry out a reasonable plan approved by the
court directed toward the integration of the children into a parental home." See K.S.A.
2017 Supp. 38-2269(c)(3). Issues not briefed are deemed abandoned. In re Marriage of
Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018). Accordingly, this court could affirm
the trial court's decision on the basis of this factor alone, as Mother failed to contest the
trial court's conclusion with respect to this factor. See K.S.A. 2017 Supp. 38-2269(f) (any
one of the factors listed in K.S.A. 2017 Supp. 38-2269[b] or [c] can sufficiently establish
grounds for termination of parental rights).

Rebuttable presumption of unfitness: K.S.A. 38-2271(a)(5)

K.S.A. 2017 Supp. 38-2271(a)(5) sets forth a legal presumption of parental
unfitness when the State establishes by clear and convincing evidence that the child has
been in an out-of-home placement under court order for a cumulative period of at least
one year and "the parent has substantially neglected or willfully refused to carry out" a
reasonable court-approved reintegration plan. When this presumption applies, "[t]he
burden of proof is on the parent to rebut the presumption of unfitness by a preponderance
of the evidence." K.S.A. 2017 Supp. 38-2271(b).

Mother concedes that the children were in an out-of-home placement for at least a
year. She argues, however, that the record does not support the trial court's finding that
she substantially neglected or willfully refused to carry out the reintegration plan. As
explained earlier, Mother largely failed to carry out her reintegration plan.

The reintegration plan required Mother to submit to random UAs and test
negative. Mother frequently no-showed for required UAs and frequently tested positive
for methamphetamine and/or amphetamines, including testing positive for both
18

methamphetamine and amphetamine a week before trial. The plan required Mother to
actively participate in court-ordered visitation with the children. Mother did not have any
authorized visitation with the children from January 2017 until November 2017. Mother
also was ineligible for visitation for large stretches of time because of her UA no-shows
and positive tests. The reintegration plan required Mother to participate in mental health
services. Mother did a mental health intake in Kansas but then moved to Missouri; KVC
was unable to arrange mental health services for Mother in Missouri. Mother failed to
engage in mental health services in Missouri. The record contains clear and convincing
evidence for the trial court's finding that Mother substantially neglected or willfully
refused to carry out the reintegration plan.

Mother also argues that "even were the presumption to be applied," she "has more
than met the burden of proof in refuting it." She provides no authority to support her
argument, and she does not even provide the burden of proof she has supposedly
satisfied. A point raised incidentally in a brief and not argued therein is deemed waived
or abandoned. Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017).

Unfitness in the foreseeable future: K.S.A. 2017 Supp. 38-2269(a)

Finally, Mother argues that the trial court's decision must be overturned because
there is no evidence that she will continue to be an unfit parent in the foreseeable future.
Under K.S.A. 2017 Supp. 38-2269(a), a trial court must find both that a parent is unfit
and that their "conduct or condition is unlikely to change in the foreseeable future" in
order to appoint a permanent custodian. Courts consider the "foreseeable future" from the
perspective of a child because children's perceptions of time differ from those of adults.
In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014). Children have a right to
permanency within a time frame that is reasonable for them. 50 Kan. App. 2d at 1170.

19

Mother largely bases her argument here on her claim that she successfully
completed a substance abuse treatment program. As the State correctly points out,
Mother's certificate of program completion was not before the trial court when it ruled on
the State's motion to appoint permanent custodians. The trial court announced it
concluded receiving evidence on the issue at the end of the second part of the hearing on
January 17, 2018. According to her certificate, Mother did not even begin drug treatment
until two months after the second half of the hearing. Further, these results were not
submitted to the trial court until June 5, 2018, a month after the court's ruling appointing
permanent custodians for O.S. and N.S.

Mother compares this case to In re K.R., where a panel of this court found that no
evidence supported "the crucial element that Mother's unfitness 'is unlikely to change in
the foreseeable future.'" In re K.R., 43 Kan. App. 2d 891, 902, 233 P.3d 746 (2010).
Mother is incorrect. In In re K.R., this court noted "limited testimony" below on the issue
of Mother's future unfitness and, to the contrary, testimony indicating "that as of the
termination hearing, there had been substantial progress toward all conditions of
reintegration." 43 Kan. App. 2d at 902. This comparison is unconvincing.

Here, Shandy testified at the trial about Mother's failure to complete reintegration
plan tasks. She testified that Mother tested positive for drugs the week before the trial.
She testified that Mother was not enrolled in any mental health services. Though the
reintegration plan required Mother to engage in supervised visitation with the children,
Mother did not have any supervised visitation with the children at all from January 2017
until November 2017; Mother only began to engage in supervised visitation with the
children a month before the trial. Moreover, by the time of the trial, the children had been
out of Mother's custody for 16 months (from August 2016 to December 2017). Mother's
case plan had been in effect for a full year.

20

A trial court may properly consider a parent's past conduct as an indication of
future behavior. In re M.T.S., No. 112,776, 2015 WL 2343435, at *8 (Kan. App. 2015)
(unpublished opinion), rev. denied 302 Kan. 1010 (2015). A reasonable fact-finder could
conclude from the evidence at trial that Mother had failed to make much, if any, progress
with respect to her drug use or mental health during the time her case was open. The
same reasonable fact-finder could also conclude that since Mother made no or little
progress with respect to mental health or drug use during this time, she was therefore
unlikely to make progress in the foreseeable future. Accordingly, the record contains
clear and convincing evidence to support the trial court's conclusion that Mother would
continue to remain unfit for the foreseeable future. Accordingly, we affirm.

Affirmed.