No. 111,027
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of:
R.S., DOB XX/XX/2005, a Male,
P.S., DOB XX/XX/2008, a Female, and
A.S., DOB XX/XX/2012, a Female,
Children Under Eighteen (18) Years of Age.
SYLLABUS BY THE COURT
1.
The district court's determinations that a parent is unfit and that the conduct or
condition making the parent unfit is unlikely to change in the foreseeable future are
factual determinations that must be supported by clear and convincing evidence. On
appeal, the appellate court determines whether the evidence, taken in the light most
favorable to the State (since the district court ruled in its favor), provided clear and
convincing support for the district court's factual findings. The test on appeal is whether a
rational factfinder could have found the facts highly probable based on the evidence.
2.
If the court makes a finding of unfitness, the court then must determine whether
termination of parental rights is in the best interests of the child. The district court's
determination in this regard is a discretionary judgment call. On appeal, the appellate
court reviews the best-interests determination for abuse of discretion. 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. If the district court makes any additional
factual findings that relate solely to the best-interests determination, those findings may
be made based on the preponderance of the evidence and are reviewed on appeal to see
whether substantial evidence supports them.
3.
On the facts of this case, clear and convincing evidence supported the district
court's finding that the parent was unfit and that the condition or conduct making the
parent unfit was unlikely to change in the foreseeable future.
4.
On the facts of this case, the district court did not abuse its discretion in
determining that termination of the parent's rights was in the children's best interests.
Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed October 24, 2014.
Affirmed.
Jeffrey Leiker, of Leiker Law Office, P.A., of Kansas City, for appellant mother.
Susan Alig, assistant district attorney, and Jerome A. Gorman, district attorney, for appellee.
Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.
LEBEN, J.: Q.S. appeals from the termination of her parental rights to three
children. Such rights may be terminated only in circumstances set out by statute and only
when clear and convincing evidence supports the termination. Mother claims on appeal
that the evidence in this case wasn't sufficient to terminate her parental rights and that the
district court abused its discretion by terminating her rights rather than taking some other
action, like giving her additional time to prepare for the children to live with her again.
But termination is authorized when a parent has shown a lack of effort to adjust
her circumstances, conduct, and condition to meet the children's needs, K.S.A. 2013
2
Supp. 38-2269(b)(8), and when reasonable efforts by public and private agencies to get
the family back together have failed. K.S.A. 2013 Supp. 38-2269(b)(7). Here, Mother
agreed that the children were without adequate parental care when they were taken into
State custody, and during the 10 months the case was pending, Mother had taken very
limited steps toward accomplishing a variety of tasks aimed at reuniting her with her
children. She had also missed scheduled visits with her children at least once a month for
6 months and had failed even to maintain contact with her assigned court-services officer
for about 6 months.
We recognize that termination of parental rights is a serious matter. We have
reviewed the record in this case, and we find clear and convincing evidence to support the
district court's findings that Mother was unfit as a parent under Kansas law and that the
conditions leading to that finding were unlikely to change in the foreseeable future. We
also find no abuse of discretion in the district court's decision to terminate Mother's
parental rights, and we therefore affirm its judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cases like these are necessarily fact driven, so we must set forth the factual
background in some detail. The children involved in this case—and their ages when
initially removed from their mother's home—are R.S., a 7-year-old boy, P.S., a 4-year-
old girl, and A.S., a 10-month-old girl. M.S. is the father of R.S. and P.S., while the
identity of the father of A.S. was not established in this proceeding. The district court also
terminated the parental rights of M.S. and of the unknown father of A.S., but only the
mother's rights are at issue in this appeal.
This family came to the attention of child-welfare personnel with the Kansas
Department for Children and Families on November 9, 2012. R.S. was admitted that day
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to the KVC Mental Health Hospital because his behaviors were a danger to himself and
others.
Hospital staff saw R.S. hitting, kicking, and cursing Mother's boyfriend, S.B. They
also saw S.B. throw R.S. onto a couch 10 to 12 times and then sit on him to control him,
while Mother stood by watching. At that time, Mother and S.B. had been staying in a
motel with the children.
R.S. had previously been admitted to the same mental hospital in September 2012.
At that time, he was kicking teachers, had threatened to kill his sister, had exposed
himself to others, and had shown head-banging behavior. When hospital staff discharged
R.S. in September, staff told the family that R.S. needed therapy and medication-
management services, but the family did not follow through on those recommendations.
State child-welfare personnel referred the family for services through a social-
service agency, DCCCA, and State and DCCCA personnel scheduled a meeting with
Mother and S.B. at their residence in late November 2012. State personnel had asked that
all family members be present, but only Mother, S.B., and A.S. were there; Mother said
that R.S. and P.S. were at their father's home. Mother said she wasn't sure whether R.S.
would continue to live with her full time, but she said she had not yet enrolled him in
school or applied for insurance for the children in Kansas. R.S.'s father had withdrawn
him from school in Missouri on November 26.
On November 28, Mother and S.B. were arrested for shoplifting in Missouri. All
three children were with them at the time, so police also charged them with child
endangerment.
Kansas child-welfare personnel learned that Mother and M.S. had a history of
reports with Missouri child-welfare agencies dating back to April 2009. The early reports
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were for bad hygiene, lack of food, and home cleanliness. In addition, when A.S. was
born prematurely in February 2012, Mother tested positive for opiates. A.S. was also
born with a herniated naval; Mother did not take her to scheduled doctor appointments to
address that condition.
Upon investigation, Kansas staff learned that S.B. had been convicted of two
misdemeanor sexual-battery charges involving a 15-year-old girl; as a result, he was
required to register as a sex offender. S.B. also had a criminal history including theft and
burglary.
Kansas filed child-in-need-of-care petitions for all three children on December 3,
2012. At first, the State did not seek immediate removal of the children from Mother's
residence. But it filed an amended petition a week later asking that the children be
removed immediately. In addition to earlier allegations, the amended petition alleged that
although R.S. had by then been enrolled in school, he had attempted to run away several
times when dropped off there; his parents had not picked him up from school one day;
and S.B. was still spanking R.S. despite a case-plan recommendation not to do so. The
children were removed from their home on December 12.
On January 29, 2013, the court held a hearing to determine whether the children
were in need of care, a finding that would allow further proceedings, including possible
termination of parental rights. Mother stipulated that the children were in need of care
because they did not have adequate care from their parents for reasons beyond lack of
financial means, K.S.A. 2012 Supp. 38-2202(d)(1), and because they were without the
care necessary for their physical, mental, or emotional health, K.S.A. 2012 Supp. 38-
2202(d)(2). The court placed custody of the children with the Department for Children
and Families.
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The court entered a series of orders for the parents to follow, aimed at reuniting
the children with them. Based on Mother's past drug use and concerns about present
usage (the amended petition alleged that she had prescription medications not prescribed
for her when she was arrested for shoplifting), the court ordered that Mother get a
substance-abuse evaluation and follow any recommendations she might be given. The
court also ordered that Mother be available for random urine tests for drug usage, that she
maintain regular contact with a court-services officer, that she attend parenting classes,
that she obtain a mental-health evaluation and follow its recommendations, and that she
maintain stable and appropriate housing. The order also provided for supervised
visitations with the children. At a follow-up hearing 1 month later, the court added a
requirement that Mother complete a batterer's-intervention assessment and follow its
recommendations.
At a review hearing in June 2013, a court-services officer presented a report
identifying several problems. One was Mother's continuing relationship with S.B. even
though Mother had been told that the children could not come home if S.B. was living
with her (based on his sex-offender history). In addition, Mother had not kept in contact
with her court-services officer, had missed urine tests, and had not completed a batterer's-
intervention assessment.
The State filed a motion to terminate Mother's parental rights in August 2013, and
the court held a trial on September 17, 2013. The State presented the testimony of Dianne
Keech, a court-services officer, and Christine Hannan, the case manager assigned to this
family by KVC Behavioral Healthcare, a contract service provider for the State.
Hannan supervised visits, informed Mother of her responsibilities under the court's
orders, and gave Mother referrals for the services she needed to complete the orders. She
said that home visits had been discontinued because Mother had smoked in the home,
which had caused problems for the children, who have asthma. Hannan reported that
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Mother had had a very flat affect during initial visits and had not engaged with her
children. After several visits and Hannan's prompting, Hannan said Mother had become
more engaged but still had not expressed excitement about the visits and had to be
prompted to change A.S.'s diapers.
In addition, Mother's attendance at visits wasn't consistent—she missed one visit
in March, at least one in April, one in May, one in June, at least one in July, and one in
August. She also missed a June case-planning meeting. Hannan said that Mother's missed
visits affected the children, with R.S. acting out at school after missed visits and P.S.
telling a foster parent that she never knew whether her Mother would show up.
Initially, S.B. attended the visitations as well. Keech said that Mother had
continued to bring S.B. to visitations even after workers had told her not to do so; he
finally stopped attending in March. Mother admitted that she had learned of S.B.'s sex-
offender-registration status in February and that she had been told the children couldn't be
placed with her as long as she lived with S.B. Mother said that she had ended her
relationship with S.B. in August.
Mother completed some of the case-plan tasks but failed to complete many others:
• She didn't maintain regular contact with her assigned court-services officer from
the January 2013 hearing through July, and the court-services officer couldn't
contact Mother in April and May, even to notify her of scheduled urine tests. But
Mother did maintain contact from July 31 until the trial.
• Mother tested positive for marijuana on September 5, 2013, though she denied
using it. Mother completed some negative UA tests but missed others, in part
because she couldn't be contacted.
• Mother completed a psychosocial assessment early in the case, which resulted in
the recommendations that she complete mental-health and substance-abuse
assessments. She did not obtain either of those assessments.
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• Mother did not complete the batterer's-intervention assessment, although she was
given information about where she could obtain that service (as well as other
recommended assessments).
• Mother completed parenting classes between the June 2013 hearing and trial.
• Mother was not employed at any time during the case and was financially
dependent on her parents or S.B.
• Mother lived in four different residences, two of which were motels, during the 10
months the case was pending. At the time of trial, she was residing temporarily
with a friend in Kansas City, Missouri, but she said that she would have to leave
that residence by October.
Keech testified that all three children had shown signs of neglect when taken into
State custody. She said that R.S. had had extreme behaviors at first but that his behaviors
had stabilized in foster care—he hadn't been hospitalized or had any critical episodes
related to his mental health. P.S. had several health concerns that had not been addressed
before she came into State custody. A.S., the infant, had been seriously underweight, had
shown limited mobility, and had shown signs that she had been left on her back for
extended periods before entering State custody. Hannan said that all three children were
thriving in foster homes and that A.S. had gained weight and was becoming a more
normally active infant.
Keech and Hannan expressed concern about Mother's lack of stability throughout
the time they had worked with her. Both also expressed the opinion that no new orders
would aid in reintegrating the children with Mother given the minimal effort she had
made. Hannan also expressed the opinion that Mother was unlikely to change her
circumstances in the foreseeable future.
Mother testified on her own behalf. She said that she believed her visits with the
children were going well. She said she wanted to bring the children home but was still
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trying to find a job. Mother said she had applied at a minimum of 16 places but had not
found employment. She has a high-school education. She admitted that her living
situation at the time was only temporary but said that she thought she could find a job by
the time she had to leave the residence. She agreed that she did not know when she would
get a job and a home appropriate for the children but believed that with more time she
could improve her situation.
Mother said she had not had a mental-health assessment because she could not
afford the $75 fee. But she also said that "in a way" she did not believe that she needed
the evaluation.
The district judge concluded that Mother was unfit, that her unfitness was unlikely
to change in the foreseeable future, and that it was in the children's best interests to
terminate her parental rights so that the children could be adopted. The judge agreed with
Mother's attorney that the case had only been pending a relatively short time and said that
"if [he] thought [the parties] had moved one iota towards reintegrating the children" he
would be inclined to give Mother additional time. But other than completing parenting
classes and showing up for some visits, the district court found that Mother had made
little progress. The court noted that Mother had missed visits with the children even in
July and August, which was after the State had filed its motion to terminate parental
rights.
The court found Mother unfit because she had not made a sufficient effort to
adjust her circumstances to meet the needs of the children, K.S.A. 2013 Supp. 38-
2269(b)(8), because reasonable efforts by appropriate agencies had been unable to
rehabilitate the family, K.S.A. 2013 Supp. 38-2269(b)(7), and because Mother had failed
to carry out a reasonable, court-approved plan aimed at reintegrating the family while the
children were out of her physical custody, K.S.A. 2013 Supp. 38-2269(c)(3). The court
also concluded that these conditions were unlikely to change in the foreseeable future.
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The court concluded that it was in the children's best interests to terminate
Mother's parental rights. The court did not make any further explanation; it orally recited
a number of other findings, including those on unfitness, before addressing best interests.
Earlier in the hearing, it had also made significant statements, including that Mother had
"physically, mentally, and emotionally neglected the children," that "the ongoing mental
health needs of [R.S.] . . . were clearly not being attended to," and that there was an
overall lack of stability for the children.
Mother has appealed to this court.
STANDARD OF REVIEW ON APPEAL
We must give some consideration to our standard of review on appeal. In this case,
the district court has made two separate determinations that we must review. First, the
district court made two findings related to Mother's fitness as a parent—that Mother was
unfit for specific factual reasons and that this unfitness was unlikely to change in the
foreseeable future. Those findings allowed the court to consider whether to terminate
Mother's rights to her children. Second, the district court found that terminating Mother's
parental rights was in her children's best interests.
Our standard for reviewing the first decision—the district court's conclusions on
parental fitness—is well established. The district court may make the fitness findings
based only on clear and convincing evidence, K.S.A. 2013 Supp. 38-2269(a), so we must
determine on appeal whether clear and convincing evidence supports the district court's
findings. To do so, we determine whether the evidence, taken in the light most favorable
to the State (since the district court ruled in its favor), could have convinced a rational
factfinder that these facts were highly probable. In re B.D.-Y., 286 Kan. 686, 705, 187
P.3d 594 (2008).
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For the second decision—whether termination of parental rights is in the best
interests of the child—our court has provided inconsistent statements about whether we
should review the best-interests determination under an abuse-of-discretion standard or
under the clear-and-convincing-evidence standard. Compare In re K.P., 44 Kan. App. 2d
316, 322, 235 P.3d 1255 (abuse of discretion), rev. denied 291 Kan. 911 (2010), with In
re L.B., 42 Kan. App. 2d 837, 846, 217 P.3d 1004 (2009) (clear-and-convincing
evidence), rev. denied 289 Kan. 1278 (2010). So here we consider the appropriate
standard for that review.
We must be guided, of course, by the applicable statute, K.S.A. 2013 Supp. 38-
2269. Once a child has been adjudicated as one in need of care, the statute provides that
"the [district] 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." (Emphasis added.)
K.S.A. 2013 Supp. 38-2269(a).
From the statutory language, it's clear that the district court's ultimate decision—
deciding to terminate parental rights, appoint a permanent custodian, or do neither—is a
discretionary call. The statute says that "the court may terminate parental rights or
appoint a permanent custodian" if certain facts exist, not that it must do so. The word
"may" in a statute typically signals that the decision is a discretionary one. See Jordan v.
Jordan, 47 Kan. App. 2d 300, Syl. ¶ 6, 274 P.3d 657 (2012). Discretionary decisions are
reviewed for abuse of discretion.
We should note that in addition to K.S.A. 2013 Supp. 38-2269(a), which provides
that the court may terminate parental rights or appoint a permanent custodian, the court's
decision-making process is also addressed in K.S.A. 2013 Supp. 38-2269(g)(1). That
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provision adds that "[i]f the physical, mental or emotional needs of the child would best
be served by termination of parental rights, the court shall so order." (Emphasis added.)
The use of "shall" in that provision doesn't change the call from a discretionary one to a
mandatory one: only if the court determines termination is in the child's best interests—
an inherently discretionary judgment call—is the court required to terminate parental
rights. See K.P., 44 Kan. App. 2d at 321-22.
The standard of review for a best-interests determination was not at issue in In re
B.D.-Y., our Supreme Court's seminal decision on the standard of review for factual
findings. In B.D.-Y., the appellate court reviewed a ruling that a child was in need of care
for clear and convincing evidence to support the ruling. Like the fitness findings in the
case now before us, child-in-need-of-care findings are based on a series of potential
factual bases established by statute. See K.S.A. 2013 Supp. 38-2202(d). The district court
makes no best-interests finding when it determines a child is in need of care; it simply
authorizes further proceedings (including possible termination of parental rights). B.D.-Y.
thus set out the standard of review for fact-based determinations, not discretionary
judgment calls.
For the discretionary best-interests decision, abuse of discretion is the logical
standard of review: A best-interests determination is "in all cases a highly discretionary
call." In re J.D.W., 711 A.2d 826, 834 (D.C. 1998). The Kansas Supreme Court has noted
in the context of child-custody determinations arising in divorce cases that the "district
court [is] in a better position to evaluate the complexities of the situation and to
determine the best interests of the children," and its best-interests judgment is reviewed
for abuse of discretion. In re Marriage of Bradley, 258 Kan. 39, 45, 899 P.2d 471 (1995);
accord In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). The same is
true for a best-interests determination made during a proceeding to terminate parental
rights.
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Even so, we must still consider whether constitutional due-process principles
require that we conduct a more stringent review: A parent has a fundamental liberty
interest in his or her relationship with the child, so the allegations of conduct that form
the basis for termination must be proved by clear and convincing evidence. Santosky v.
Kramer, 455 U.S. 745, 769-70, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
But that does not necessarily mean that a best-interests determination must be
reviewed under a clear-and-convincing-evidence standard. In an extensive analysis, the
Illinois Supreme Court determined that the trial court's best-interests decision was a
discretionary ruling that higher courts should review for abuse of discretion. In re D.T.,
212 Ill. 2d 347, 360-66, 818 N.E.2d 1214 (2004).
Like Kansas, Illinois follows a two-step process to terminate a parent's rights. The
court must first find unfitness; if it does, the court then determines whether it is in the
child's best interests to terminate the parent's rights. 212 Ill. 2d at 352. In addition, like
Kansas, Illinois statutes require that the fitness determination be based on clear and
convincing evidence. 212 Ill. 2d at 352. The court held that constitutional due-process
requirements were satisfied by the high evidentiary requirement for an unfitness finding,
where the focus is on the parent's conduct. Thus, a parent's rights cannot be terminated
unless the court first finds unfitness—based on the parent's conduct measured against
statutory standards. 212 Ill. 2d at 364.
In the best-interests phase, however,"[t]he issue is no longer whether parental
rights can be terminated; the issue is whether, in light of the child's needs, parental rights
should be terminated." 212 Ill. 2d at 364. During that determination, the Illinois Supreme
Court concluded that trial courts may make any additional factual findings appropriate to
answering the best-interests question under the preponderance-of-the-evidence standard
(i.e., whether a fact is more likely true than not). The court determined that this satisfied
due-process requirements and was the most appropriate evidentiary standard given the
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nature of the best-interests standard. 212 Ill. 2d at 366. We find the Illinois court's
analysis persuasive.
We therefore review the best-interests determination under our traditional abuse-
of-discretion standard: We review for abuse of discretion, which occurs when no
reasonable person would agree with the district court or the district court premises its
decision on a factual or legal error. See Critchfield Physical Therapy v. The Taranto
Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). In determining whether the district
court has made a factual error, we review any additional factual findings made in the
best-interests determination to see that substantial evidence supports them (recognizing
that the preponderance-of-the-evidence standard applies in the district court). In most
cases, however, the facts already found in the fitness phase—proved by clear and
convincing evidence—will be the primary facts the court relies on for the best-interests
determination.
ANALYSIS
I. The District Court's Fitness Findings Are Supported by Clear and Convincing
Evidence.
Mother's first argument is that there was not clear and convincing evidence to
support the district court's finding that she was unfit and that her unfitness was unlikely to
change in the foreseeable future. Mother had stipulated previously that the children were
in need of care, and she doesn't dispute that on appeal. Essentially she argues that while
the State's evidence was true at the time of filing the motion to terminate parental rights,
the case had only been pending a short time, and she had not been given enough time to
complete the assigned tasks. She also contends that the agencies involved had not made
reasonable efforts to reintegrate her with her children.
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Once the district court has determined that children are in need of the State's care,
K.S.A. 2013 Supp. 38-2269(a) provides that the court may terminate parental rights if it
finds by clear and convincing evidence "that the parent is unfit by reason of conduct or
condition which renders the parent unable to care properly for a child and the conduct or
condition is unlikely to change in the foreseeable future." In determining whether a
parent is unfit, the court may consider a number of factors set out in K.S.A. 2013 Supp.
38-2269(b) and (c), any one of which may constitute appropriate grounds for termination
of parental rights. K.S.A. 2013 Supp. 38-2269(f).
Kansas agency workers had been involved with this family even before the child-
in-need-of-care case was filed, and Missouri child-welfare workers had been involved
previously. Kansas workers provided sustained assistance from December 2012 through
September 2013. Hannan gave Mother the names of agencies that could provide her
court-ordered evaluations at little or no cost. But Mother made only minimal efforts over
the 10 months the children had been in State custody to take the steps required to regain
custody of her children, leading the district court to say that there had not been "one iota"
of real movement toward meaningful reintegration of the family. Mother's attendance at
parenting classes and some visitations did not move the process forward in a significant
way given the other things she had failed to do. Accordingly, the evidence strongly
supports the conclusion that Mother had failed to adjust her circumstances to meet the
children's needs, that reasonable agency efforts toward reintegration had failed, and that
Mother had failed to carry out a reasonable court-approved plan aimed at reintegration.
We recognize that Mother had a different view as to the facts of the case, but we
must take the evidence in the light most favorable to the State. In addition, in determining
whether Mother's conduct was likely to change in the foreseeable future, we are to
consider "foreseeable future . . . from the child's perspective, not the parent['s], as time
perception of a child differs from that of an adult." In re S.D., 41 Kan. App. 2d 780, Syl.
15
¶ 9, 204 P.3d 1182 (2009); accord In re D.T., 30 Kan. App. 2d 1172, 1174-75, 56 P.3d
840 (2002); see K.S.A. 2013 Supp. 38-2201(b)(4).
II. The District Court Did Not Abuse Its Discretion in Determining That the Children's
Best Interests Supported Termination of Mother's Parental Rights.
Mother's second argument is that the district court abused its discretion in
concluding that termination of her parental rights was in the children's best interests. She
agrees in her brief that the best-interests finding should be reviewed for abuse of
discretion.
We find no abuse of discretion here. A reasonable person could agree with the
district court's conclusion, and we do not find that the district court's conclusion was
based on any factual or legal error.
At the time the children were removed from Mother's home, each of the children
had serious physical or behavioral problems. After their removal, Mother had failed to
obtain a substance-abuse assessment, even though she had tested positive for opiates at
the time of A.S.'s birth and had provided one positive UA (while missing other tests). She
had failed to obtain other assessments as well, and she had made no progress during the
10 months the case was pending toward providing a stable home for the children. While
she made many visits with the children, she also missed several visitations.
Mother also argues that the court failed to consider alternatives to termination. But
the court clearly gave consideration to her request for additional time—it simply
concluded that there was no reason to believe additional time would produce results,
given Mother's record since the case had begun.
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Mother may feel that this opinion seems one-sided against her. We do not mean it
to be. She did put forth some effort to comply with the court's orders; it simply was not
enough. Even so, some comments we made in another case are equally true here:
"Cases like this are difficult ones. A parent may be labeled 'unfit' under the law
even though he or she loves the child and wants to do the right thing, which may be the
case here. But we must judge these cases based mostly upon actions, not intentions, and
we must keep in mind that a child deserves to have some final resolution within a time
frame that is appropriate from that child's sense of time." In re A.A., 38 Kan. App. 2d
1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008).
The district court's fitness findings were supported by clear and convincing
evidence, and the court did not abuse its discretion in concluding that termination of
Mother's parental rights was in the children's best interests. We therefore affirm the
district court's judgment.
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