NOT DESIGNATED FOR PUBLICATION
Nos. 122,730
123,435
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of M.L., T.L., D.L., A.L., and M.M.,
Minor Children.
MEMORANDUM OPINION
Appeal from Geary District Court; COURTNEY D. BOEHM, judge. Opinion filed December 18,
2020. Affirmed.
Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, and Anita S. Kemp, of Wichita, for
appellant natural father.
Michelle L. Brown, assistant county attorney, for appellee.
Before ARNOLD-BURGER, C.J., BUSER and WARNER, JJ.
PER CURIAM: In this consolidated appeal, M.L. (Father) appeals the district court's
order terminating parental rights to five of his children, M.L. II, T.L., D.L., A.L., and
M.M (the children). Specifically, Father challenges the district court's findings that he is
unfit and that it is in the children's best interests to terminate his parental rights. We hold
the district court's finding of parental unfitness is supported by clear and convincing
evidence, and it was not an abuse of discretion to terminate Father's parental rights.
Accordingly, we affirm the district court's judgment.
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FACTUAL AND PROCEDURAL HISTORY
In November 2017, Father and L.M. (Mother) lived in a motel room with five
children. Mother had a 13-year-old child from a previous relationship. Father had a six-
year-old, a three-year-old, and a two-year-old from a previous relationship. Mother and
Father had one child together, a one-year-old. Father and Mother were the primary
parents for all five of the children.
On November 8, 2017, Kristina Blanck—a caseworker from St. Francis
Community Services (SFCS)—reported to the Department for Children and Families
(DCF) that she suspected two of Father's children had been sexually abused. Junction
City Police Sergeant Douglas Cathey was assigned to investigate the matter. Blanck told
Sergeant Cathey that she originally started working with the family based on concerns
that Mother's 13-year-old son had physically and sexually abused Father's 6-year-old son.
SFCS put a care plan in place with Father to ensure the children were not left alone with
Mother's son. During this conversation, Blanck also advised Sergeant Cathey that Mother
was pregnant with Father's child and was due anytime.
That same day, Sergeant Cathey went to the motel where the family was staying
but no one answered when he knocked on the motel room door. Sergeant Cathey then
called Father to advise him of the sexual abuse allegations and to request a meeting for
the following day or the day after to talk about the concerns. Father told Sergeant Cathey
he would meet with Cathey sometime the next day. Afterward, Sergeant Cathey
contacted Caitlin Todd from DCF and learned that the agency planned to interview the
children the following week.
Father and Sergeant Cathey did not meet in the following days as planned.
Sergeant Cathey called and left Father a message but Father did not return the call.
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On November 13, 2017, Todd called Sergeant Cathey to inform him that Father
and Mother were at the hospital for delivery of the new baby and had left the 13-year-old
at the motel to care for the 6-year-old, the 3-year-old, the 2-year-old, and the 1-year-old.
Another detective responded to the motel room and found the five children alone as
described. All of the children were taken into police protective custody. Later that day,
Mother gave birth to M.M. Both Mother and M.M. tested positive for methamphetamine
and amphetamines.
Two days after the children were taken into protective custody, the State filed a
child in need of care (CINC) petition for each child on grounds that the children were
without adequate parental care; without the care or control necessary for the children's
physical, mental, or emotional health; and likely to sustain harm if not immediately
removed from Father's care. At a temporary disposition hearing held the next week, the
court placed the children in DCF custody. The matter was referred to SFCS, and a case
plan was developed with the goal of reintegration.
It appears that the district court held a review hearing on January 10, 2018, and
appointed a guardian ad litem on April 20, 2018, to represent the children. On May 30,
2019, the court held an adjudication and disposition hearing. Father, Mother, and the
guardian ad litem submitted a statement of no contest to the allegations in the petition. In
its journal entry of the hearing, the court found the children to be children in need of care
and ordered the children to remain in DCF custody in out-of-home placement.
The district court held a permanency hearing on July 11, 2018. While the record
on appeal does not contain any journal entry memorializing this hearing, it appears the
court found reintegration was still a viable option. But at the permanency hearing held on
November 28, 2018, the court determined reintegration was no longer viable. The court
then held permanency hearings on December 12, 2018, February 20, 2019, and April 24,
2019.
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Before the permanency hearing began on April 24, 2019, the State filed a motion
to terminate Father's parental rights. The State alleged that Father was unfit as a parent
based on the failure of reasonable efforts made by DCF to rehabilitate the family and a
lack of effort by Father to adjust his circumstances, conduct, or condition to meet the
needs of his children. See K.S.A. 2019 Supp. 38-2269(b)(7), (b)(8). The State also
alleged a presumption of unfitness applied because the children had been in court-ordered
out-of-home placement for more than a year and because Father substantially neglected
or willfully refused to carry out the reasonable court-approved reintegration plan. See
K.S.A. 2019 Supp. 38-2271(a)(5).
The termination hearing was held on July 8, 2019. At the beginning of the hearing,
Mother's counsel informed the district court that Mother wanted to voluntarily relinquish
her rights to her now 15-year-old son from a previous relationship and to her now 3-year-
old and 1-year-old children she shared with Father. The court proceeded to hear evidence
regarding whether Father's parental rights should be terminated.
After hearing the evidence and considering the parties' arguments, the district
court determined Father was unfit under K.S.A. 2019 Supp. 38-2269(b)(7), (b)(8), and
K.S.A. 2019 Supp. 38-2271(a)(5). The district court's findings emphasized that Father
had "not presented to the Court a reasonable plan to show how the children would be
reintegrated back into his home. He's presented no real plan to improve the stability that
has been a consistent issue in these cases." Ultimately, the court determined that it was in
the best interests of the children to terminate Father's parental rights.
The district court issued journal entries in the cases, finding by clear and
convincing evidence that Father was unfit, the conditions rendering him unfit were
unlikely to change in the foreseeable future, and it was in the children's best interests to
terminate Father's parental rights.
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Father filed a timely appeal which inadvertently included only four children,
M.L. II, T.L., D.L., and A.L. After briefing, newly-appointed counsel for Father
discovered the omission and moved for a stay of the issuance of our opinion to allow for
an out-of-time filing of an appeal relating to M.M. and consolidation with the earlier
appeal. After a hearing, the district court permitted the filing of an out-of-time appeal as
to M.M. Our court docketed the appeal as to M.M. and ordered consolidation of both
appeals under the above-captioned case and number. The matter is now submitted for
decision as to all five children.
ANALYSIS
On appeal, Father argues there is insufficient evidence to support the district
court's finding that he is unfit and that it was in the best interests of the children to
terminate his parental rights.
1. Unfitness
Father asserts the standard of review in a termination of parental rights case is
whether substantial competent evidence in the record supports the district court's finding
that the parent is unfit. In support of this assertion, Father relies on In re A.N.P., 23 Kan.
App. 2d 686, 692, 934 P.2d 995 (1997). But in In re B.D.-Y., 286 Kan. 686, Syl. ¶ 4, 187
P.3d 594 (2008), our Supreme Court modified the standard of review from In re A.N.P.
The standard in place for the last 12 years requires the appellate court to determine
whether clear and convincing evidence supports the district court's finding of unfitness.
286 Kan. at 705 (modifying standard of review for fact-finder determinations required to
be "based upon clear and convincing evidence [to] one similar to that applied to
sufficiency questions in criminal cases"). More specifically, when reviewing a finding of
parental unfitness, this court must determine, after reviewing all the evidence in a light
most favorable to the State, whether a rational fact-finder could have found the
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determination to be highly probable, i.e., by clear and convincing evidence. See 286 Kan.
at 705-06. In making this determination, the appellate court does not weigh conflicting
evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan.
at 705.
Under K.S.A. 2019 Supp. 38-2269(a), the State is first required to prove a 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." The statute provides district courts with a nonexclusive list of nine factors to
consider when determining unfitness, and four more factors for the district court to
consider when, as here, the parent does not have physical custody of the child. K.S.A.
2019 Supp. 38-2269(b), (c). Clear and convincing evidence of a single statutory factor
under K.S.A. 2019 Supp. 38-2269(b) or (c) can be a sufficient basis for a district court's
determination that a parent is unfit. K.S.A. 2019 Supp. 38-2269(f).
Although it did not expressly identify the subsections of the statute upon which it
based its decision, the district court's ruling indicates that it relied on two statutory factors
to support its finding that Father was unfit: (1) failure of reasonable efforts made by DCF
and SFCS to rehabilitate the family as set forth in K.S.A. 2019 Supp. 38-2269(b)(7), and
(2) lack of effort on the Father's part to adjust his circumstances, conduct, or conditions to
meet his children's needs as set forth in K.S.A. 2019 Supp. 38-2269(b)(8). In addition, the
court found a statutory presumption of unfitness as described in K.S.A. 2019 Supp. 38-
2271(a)(5) and in a manner provided in K.S.A. 60-414(a). This presumption applies when
a child has been in court-ordered out-of-home placement under court order for a
cumulative total period of one year or longer and the parent has substantially neglected or
willfully refused to carry out a reasonable court-approved reintegration plan. The court
found Father failed to successfully rebut this presumption.
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Although the district court relied on only two factors and the rebuttable
presumption, Father evaluates each of the statutory factors in his brief to support his
insufficiency of the evidence argument. Because the court did not rely on many of the
factors Father analyzed, we decline to consider his arguments on those issues.
a. DCF's reasonable efforts
Under K.S.A. 2019 Supp. 38-2269(b)(7), a district court may terminate a parent's
rights to his or her child if there is clear and convincing evidence that the reasonable
efforts made by public or private agencies to rehabilitate the family have failed. Under
this subsection, the relevant social service agencies are obligated to expend reasonable
efforts toward reintegrating the child with his or her parents. See K.S.A. 2019 Supp. 38-
2201(b)(8) (recognizing that one significant policy goal of the Kansas Code for the Care
of Children is for the state to "provide preventative and rehabilitative services, when
appropriate, to abused and neglected children and their families so, if possible, the
families can remain together without further threat to the children"). The requirement
exists to provide a parent with an opportunity to succeed, but to do so requires the parent
to exert some effort. In re M.S., 56 Kan. App. 2d 1247, 1257, 447 P.3d 994 (2019).
Father does not appear to challenge the district court's finding that DCF and SFCS
made reasonable efforts to rehabilitate the family. The only assertion in his brief that
could be construed as a challenge to the court's finding in this regard is a general claim
that "he was confused about the requirements for reintegration" and that "the social
workers were not clear with him [and] . . . would not listen to him." In the absence of any
argument challenging the district court's finding that DCF and SFCS made reasonable
efforts to rehabilitate the family, we deem that argument waived. In re Matter of
Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018) ("'Where the appellant
fails to brief an issue, that issue is waived or abandoned.'"). And even if Father has
properly raised the argument, he failed to include in the record on appeal the documents
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from the DCF or SFCS social files that were available to the court in making its decision
on this factor. When this court cannot tell the content of the evidentiary exhibits the
district court relied on in making its decision, it presumes that those exhibits contain the
necessary information to support the district court's conclusions. See In re A.A.-F., 310
Kan. 125, 141-42, 444 P.3d 938 (2019). Without those exhibits, this court has no way to
determine whether the information within the exhibits sufficiently supported the district
court's findings. As the appellant, Father bore the burden to designate a record sufficient
to show his claimed error and, if the record is insufficient to show error, his claims fail.
See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287
(2013).
b. Lack of effort to adjust circumstances, conduct, or conditions
Under K.S.A. 2019 Supp. 38-2269(b)(8), a district court may terminate a parent's
rights to his or her child if there is clear and convincing evidence of a "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." Although Father argues the evidence presented at the hearing was
insufficient to support the court's finding of unfitness under this standard, our analysis of
his argument is again hampered by Father's failure to include in the record on appeal the
documents from the DCF or SFCS social files that were available for the court's
consideration in making its decision. Without these exhibits, we must presume that they
support the district court's conclusions. See In re A.A.-F., 310 Kan. at 141-42.
Notwithstanding this presumption, we review the evidence in the record to determine
whether there is clear and convincing evidence to support the court's finding that Father
failed to put in the effort necessary to adjust his circumstances, conduct, or conditions to
meet the needs of the children.
DCF caseworker Caitlin Todd was the first witness called by the State at the
termination hearing. Todd testified that after the children were taken into custody, DCF
8
and SFCS developed a case plan requiring Father to complete various tasks to
successfully reintegrate the children into his home. The case plan tasks included
maintaining stable housing, maintaining stable employment and providing proof of
income, attending a parenting class, and attending visits with his children provided he
had a clean urinalysis before each visit.
(1) Stable employment and income verification
As part of his case plan, Father was required to maintain stable employment and
provide income verification to SFCS. Danielle Lipitrot, the SFCS case manager assigned
to this case, testified that Father owned a car detailing business but failed to provide any
proof of income throughout the entirety of the case. Father disagreed, stating that SFCS
only asked him for proof of income one time in 2018 and, in response, he provided SFCS
with two check stubs from 2018.
Father's testimony is not only inconsistent with Lipitrot's, but it is also inconsistent
with the other witnesses who testified at the termination hearing. Bridget Ludwig, the
court appointed special advocate (CASA) volunteer who worked with the children,
testified that she told Father at least seven times since November 2018 that he needed to
provide income and housing verification to SFCS. For her part, Lipitrot stated that both
she and Ludwig counseled Father to find other employment to help provide stability for
himself and the children. When he was told that a supplemental or replacement job could
be helpful, Father told Lipitrot that his business brought in sufficient income. Ludwig
echoed Lipitrot's testimony and said that Father told her that he did not want to work for
someone else and that his children always had what they needed. Ludwig disagreed that
Father had always provided for the children because the "kids have been bounced around
a lot from motel to hotel." Father admitted that nothing kept him from getting a second
job, it was just hard for him to work because he was focused on getting the children back.
9
Ludwig testified that Father told her he made approximately $7,000 in 2018.
Father admitted that he only made that amount when asked if he could provide income
verification at the termination hearing. When asked about 2019, Father said he was
unaware he needed to provide income verification to SFCS for that year. He said most of
his business is done in cash and that he had not done a good job of tracking receipts with
his customers. He was unable at the hearing to provide even an estimate for the money he
made so far in 2019. When asked how he could assure the district court that he could
provide for the children, Father said that he planned to continue working at his detailing
business. Lipitrot said there was no threshold amount of money that Father had to make
to keep the children, but without it a budget could not be created.
Part of the reason that Father's income was low was because he worked
sporadically. Father told Lipitrot that there were times he did not work and that in the
winter his business slowed down. Father was not able to estimate the hours he worked in
2018, but he stated that he would charge $75 per car and would work a couple days of the
week. Father told Ludwig multiple times that he was working on getting detailing
contracts with car dealerships, but he never provided her with anything to substantiate
those claims.
(2) Housing
Father's case plan also required him to maintain safe and stable housing and
provide record of a lease to SFCS. Father argued at the termination hearing that he only
moved residences once, but the record demonstrates that Father lived in more than two
locations since the beginning of the case.
Father testified he was kicked out of the motel where he and his children were
living on November 13, 2017, the night he and Mother left the children alone to go to the
hospital for delivery of the new baby. There is no testimony to establish where Father
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lived during the 12 months from November 13, 2017, to December 2018, when he moved
into a two-bedroom residence that he remodeled into a four-bedroom residence. Father
made improvements to the house such as new carpet in the bedrooms, new tile, and
upgraded appliances. When Jennifer Huerta, the SFCS case worker assigned at the time,
came to inspect the place, she told Father that he needed to install smoke detectors and
carbon monoxide detectors before the children could visit the house. Father testified that
he promptly installed those items.
But the children were never allowed to visit Father at that residence because there
was mold in the basement. Father testified he only lived in that residence for two months.
There was evidence presented that after leaving the residence he remodeled, he lived in a
homeless shelter, stayed with his sister and brother-in-law in Manhattan, Kansas, and
lived in his truck. Father said it was difficult for him to find a place to live because he had
an eviction on his record from 2014.
Six weeks before the termination hearing, Father found a three-bedroom residence
in Clay Center. Father provided the Clay Center lease to SFCS and to Ludwig, the CASA
volunteer. The lease, which was signed on June 1, 2019, reflected a monthly rent of $650
with Father having already paid $168 in prorated rent at the time he signed the lease. But
for the first time at the termination hearing, Father claimed the new residence was part of
a government program that gave him six months of free rent, though he was responsible
for utilities. On cross-examination, Father admitted that the lease did not say that the first
six months of rent was free, and he had no other documentation to show that this was
true. He also admitted that he did not tell SFCS or the CASA volunteer about the
program and that the lease, which made no mention of free rent, was the only paperwork
he had. Father thought the leasing agent made a mistake on the lease because the agent
told him that the first six months were free.
11
After Father submitted the lease to SFCS, Lipitrot visited Father's Clay Center
residence. She believed that it would be an appropriate place for the five children, except
for the DCF and SFCS standards that dictate one of the children would need a separate
room due to her age and gender. But the worker's primary concerns were that she could
not confirm whether Father had sufficient income to make the rent payments in Clay
Center, Father's admission that the amount of money he earned fluctuated, and the fact
that Father's housing history reflected he could only sustain payment on a lease "for a
month to three months at most."
(3) Parenting class
In March 2019, Father was tasked with completing a parenting class as part of his
case plan. Lipitrot explained that Father was enrolled in a parenting class at Dorothy
Bramlage Library in Junction City, Kansas, but he was disenrolled from the class due to
lack of attendance. Father only completed 5 of the required 11 classes. Lipitrot said that
once someone was disenrolled from a class, he or she must start the entire process again.
Father told Lipitrot that he wanted to attend another session, but the next session was
cancelled after the instructor had health issues.
Father admitted that he missed two classes but maintained he was not disenrolled
for lack of attendance. He said there was a miscommunication between him and the
instructor, but that he would be able to attend the next session that started in September
2019. He also said that he found an online class that he could take and pay for himself,
but he had not enrolled in that class because he only discovered it a few days before the
termination hearing. Nonetheless, the record reflects that Father failed to complete a
parenting class before the termination hearing.
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(4) Visitation
Lipitrot testified that Father failed to consistently attend visits with the children.
Lipitrot explained that Father was originally scheduled for three supervised visits per
week, but for at least six months prior to the termination hearing, Father was scheduled
for one unsupervised visit per week. She could not explain the decrease because she only
had been the case manager for six months. Jennifer Hornbuck was the original SFCS case
manager. The case then transferred to Jennifer Huerta before ultimately transferring to
Lipitrot. Neither Hornbuck nor Huerta testified at the termination hearing.
Nonetheless, Lipitrot knew that Father attended 34 visits and missed 39 visits
since the case began. Father missed visitation for various reasons, including
transportation, work, other appointments, and not following the terms of the visitation
agreement. As part of the visitation agreement, Father had to submit to urinalysis testing
and check-in to SFCS by 11 a.m. before visits could occur. Though Father's urinalysis
tests had never returned positive, SFCS had to cancel three visits due to Father's failure to
appropriately check-in with SFCS. Father testified that it was untrue that he missed 39
visits and that SFCS only cancelled 3 visits, but he also admitted that he did not have any
way of proving his claims. He stated that when he did miss visits, it was most often
because he was looking for a new residence.
Based on the evidence included in the record on appeal, we conclude the district
court's finding of unfitness based on Father's lack of effort to adjust his circumstances,
conduct, or conditions to meet the needs of his children is supported by clear and
convincing evidence. See K.S.A. 2019 Supp. 38-2269(b)(8).
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c. Presumption of unfitness
K.S.A. 2019 Supp. 38-2271(a)(5) provides that a parent will be presumed unfit if
the State establishes by clear and convincing evidence that a "child has been in an out-of-
home placement, under court order for a cumulative total period of one year or longer and
the parent has substantially neglected or willfully refused to carry out a reasonable plan,
approved by the court, directed toward reintegration of the child into the parental home."
If 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. 2019 Supp. 38-
2271(b).
Although he cites to the wrong statute, Father concedes in his brief that a
presumption of unfitness applies because the children were in out-of-home placement for
20 months. But Father argues he "overcame that presumption when he provided proof of
stable housing and [income], the paramount issues in the case." This conclusory
statement is the only attempt Father makes to rebut the presumption of unfitness. But
Father's history, as detailed above, shows a pattern of noncompliance with his
reintegration plan. The evidence presented at the hearing established that Father failed to
maintain stable employment and provide proof of income, failed to obtain stable housing,
failed to complete the parenting classes, and failed to maintain a regular visitation
schedule. Based on these failures and the fact that the children had been in out-of-home
placement for more than a year, the district court found that the presumption of unfitness
under K.S.A. 2019 Supp. 38-2271(a)(5) applied and that Father failed to successfully
rebut the presumption. For the reasons discussed above, the record supports these
findings.
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2. Foreseeable future
Father does not contest the district court's determination that the conduct or
condition that rendered him unfit is unlikely to change in the foreseeable future. In the
absence of any argument challenging the district court's finding on this issue, we deem
that argument waived. In re Matter of Adoption of T.M.M.H., 307 Kan. at 912 ("'Where
the appellant fails to brief an issue, that issue is waived or abandoned.'").
3. Best interests
The district court found it was in the children's best interests to terminate Father's
parental rights based on the length of time the children had been in custody, the adoptive
resources available, the agencies' reasonable attempts and failure to reintegrate the
children, and Father's failure to adjust his circumstances to meet the needs of the
children. Although Father asserts the district court erred when it found termination of his
parental rights was in the children's best interests, he cites to no evidence and provides no
argument to support the assertion. Although we deem the argument waived, we briefly
address the issue. See In re Matter of Adoption of T.M.M.H., 307 Kan. at 912.
In deciding whether termination of parental rights is in the best interests of the
child, the court gives primary consideration to the physical, mental, and emotional health
of the child. K.S.A. 2019 Supp. 38-2269(g)(1). The district court makes that decision
based on a preponderance of the evidence. This decision is within the district court's
sound discretion, and an appellate court reviews such a decision for an abuse of
discretion. See In re R.S., 50 Kan. App. 2d 1105, 1115-16, 336 P.3d 903 (2014). A
judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on
an error of fact. In re M.S., 56 Kan. App. 2d at 1255.
15
We find no shortcomings in the district court's assessment of the evidence or
applicable legal principles. Therefore, the question presented is whether no reasonable
district court would come to the same conclusion. Here, the record shows that at the time
of the termination hearing, the children had been in out-of-home DCF custody for 20
months. When they were removed from Father's care, four children were six, three, two,
and one years old, and the infant was less than a week old. By the time of the termination
hearing, the youngest children had spent the majority of their lives in foster placements.
The record also shows that Father failed to secure stable housing or stable income over
this 20-month period and was unwilling to find replacement or supplemental
employment. Furthermore, Father was not able to articulate to the district court how
anything would be different if his parental rights were not terminated. He simply stated
that he would work harder to prove to the district court that the children could eventually
be reintegrated.
The record also demonstrates that the children were doing well in their
placements. Lipitrot testified that the children's foster homes were aware of the children's
mental health needs because the foster parents were the ones who asked for mental health
assistance. Ludwig buttressed Lipitrot's testimony and said that the children's behavior
had improved since being in placement and that the children all had good relationships
with their foster parents.
Based on the evidence, a reasonable court could conclude that it was in the
children's best interests to terminate Father's parental rights.
Affirmed.
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