In re B.M.

NOT DESIGNATED FOR PUBLICATION

No. 123,453

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of B.M.,
A Minor Child.

MEMORANDUM OPINION

Appeal from Ford District Court; LAURA H. LEWIS, judge. Opinion filed September 3, 2021.
Affirmed.

Paige Bangerter, of PAB Legal, P.A., of Dodge City, for appellant natural mother.

Kathleen Neff, deputy county attorney, and Kevin Salzman, county attorney, for appellee.

Before WARNER, P.J., CLINE, J., and WALKER, S.J.

PER CURIAM: Mother appeals from the district court's order terminating her
parental rights over her daughter B.M. On appeal, Mother argues that the district court
wrongfully terminated her parental rights and contends that the district court's findings in
support of its termination ruling were inadequate for several reasons. Because none of
Mother's arguments are persuasive to us, however, we affirm the district court's order of
termination.

FACTS

B.M. was born to Mother in 2015. In addition to B.M., Mother has two other
daughters—L.M., born in 2002, and D.M., born in 2003—who had child in need of care
(CINC) cases pending at the same time as B.M.'s CINC case. L.M.'s father was not
involved in her CINC case. On the other hand, D.M. and B.M.'s father, who is currently

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in prison for committing aggravated indecent liberties with a child against L.M. in 2015,
had his rights over D.M. and B.M. terminated at the same time Mother had her rights
over the children terminated. But the termination of D.M. and B.M.'s father's parental
rights is not at issue in Mother's appeal.

Around mid-2017, Mother began a romantic relationship with R.L. Eventually,
Mother and R.L. decided to share an apartment. Although it is unclear from the record on
appeal when Mother and R.L. moved in together, it seems that they were residing in the
same apartment within a few weeks of starting their relationship. Inside this apartment,
there was a single bed, which Mother, R.L., L.M., and D.M. shared. B.M. did not share
this bed because she had been living with her "babysitter" since she was two-and-a-half
months old.

In mid-June 2019, L.M. and D.M. told a friend's mother about a number of
occasions when R.L. had engaged in inappropriate sexual activity with them. After police
were contacted, officers interviewed L.M. and D.M. Following the police interviews, a
police officer spoke with Mother. According to this officer's report, Mother initially
denied having any knowledge about L.M.'s or D.M.'s sexual abuse allegations against
R.L. Later during her conversation with the officer, though, Mother admitted that L.M.
"had told her that [R.L.] was touching her." But at that time, Mother also told the officer
that she did not believe L.M. She asserted that L.M. falsified the sexual abuse allegations
against R.L. because L.M. wanted to destroy Mother's romantic relationship with R.L.

It is unclear from the record on appeal whether R.L. was convicted of any crime
related to his alleged sexual touching of L.M. and D.M. Although there are references to
R.L. being on probation and entering a plea agreement with the State, nothing definitively
establishes that R.L. was convicted of any crime based on L.M.'s and D.M.'s sexual abuse
allegations. Even so, the record on appeal supports that R.L. faced criminal charges for
his alleged sexual touching of L.M. and D.M. Additionally, the State relied on L.M.'s and

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D.M.'s sexual abuse allegations to petition the district court for emergency custody of
L.M., D.M., and B.M.

Upon the State's petition for emergency custody of L.M., D.M., and B.M., the
district court appointed a guardian ad litem to represent L.M., D.M., and B.M. and
counsel to represent Mother. At the June 19, 2019 temporary custody hearing on the
State's petition, the district court granted the State's petition. It specifically determined
that the Kansas Department for Children and Families (DCF) should take temporary
custody of L.M., D.M., and B.M. based on L.M.'s and D.M.'s sexual abuse allegations
against R.L.

At the July 17, 2019 adjudication hearing, the district court found that there was
clear and convincing evidence that L.M., D.M., and B.M. were children in need of care.
As a result, it ordered Saint Francis Community Services (Saint Francis), a private social
service agency that DCF contracts with to provide case planning services, to create case
plans for L.M.'s, D.M.'s, and B.M.'s CINC cases. For L.M., the district court ordered
Saint Francis to create a case plan that would allow her to age out of DCF custody upon
her 18th birthday. For D.M. and B.M., though, the district court ordered Saint Francis to
create a case plan with the dual goal of reintegration with Mother and adoption.

Saint Francis had its first case planning conference with Mother on July 8, 2019.
For B.M.'s permanency plan, Saint Francis required Mother to engage in the following
case plan tasks: (1) to complete and document the completion of an age-appropriate
parenting class, (2) to complete and follow the recommendations of a mental health
assessment, (3) to participate in family therapy with her daughters, (4) to use appropriate
consequences when disciplining her daughters, (5) to have all people residing with her
complete a background check, (6) to prohibit all people with person offenses in their
criminal history from residing with her, (7) to sign all necessary releases so it could
review her case plan tasks progress, (8) to remain in regular contact with St. Francis, and

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(9) to prohibit R.L. from having any contract with L.M., D.M., and B.M. Under this
permanency plan, Mother was also allowed monitored weekly visits with B.M., which
could become unmonitored should Mother prove she could keep B.M. safe.

Following B.M.'s initial case planning conference on July 8, 2019, the Saint
Francis caseworker responsible for the case reported her conversations with Mother,
L.M., and D.M. According to this caseworker, when she asked Mother if R.L. had left
their shared apartment, Mother responded that "he [was] not leaving, [and] she [did not]
want him to [leave]." This caseworker further reported that Mother said that she was
willing to "sign her rights to [B.M.] over to the babysitter."

On August 6, 2019, Saint Francis held B.M.'s second case planning conference
with Mother. With the exception of keeping in regular contact with Saint Francis, Mother
had not completed or complied with any of her case plan tasks as of that date.
Furthermore, the caseworker responsible for the case reported that Mother "allow[ed
R.L.] around the girls" at their last visitation. It seems the caseworker believed that
Mother had allowed R.L. around L.M., D.M., and B.M. because after her July 29, 2019
visitation with Mother, B.M. told her foster parent that Mother had driven her and her
sisters to Mother's apartment "to drop off food for [R.L.]" As a result, at the August 6
case planning conference, Saint Francis amended B.M.'s permanency plan to prohibit
Mother from having visitations with B.M. without its permission.

Subsequently, on October 11, 2019, in preparation for the October 23, 2019
review hearing on L.M.'s, D.M.'s, and B.M.'s CINC cases, Saint Francis filed a court
report updating the district court on Mother's progress on her case plan tasks. Outside of
starting an age-appropriate parenting class, Saint Francis reported that Mother had not
completed or complied with her case plan tasks directed toward B.M.'s reintegration. The
caseworker who submitted the court report also asked that the district court change

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D.M.'s and B.M.'s permanency goal from the dual goal of reintegration with Mother and
adoption to adoption only.

This caseworker explained that he was making this recommendation in part
because Saint Francis had been told that Mother "asked her co-workers to help her raise
money to get her girls back," but then used that money "to bond [R.L.] out of jail" on
September 7, 2019. The caseworker noted that Saint Francis had information indicating
that Mother was living with R.L. and taking him to his "probation appointments." The
report also explained that recently, Mother stopped contacting Saint Francis, stopped
returning Saint Francis' phone calls, and refused Saint Francis' request for a walk-through
of her apartment. In his report, the caseworker stated that Saint Francis was "concerned
that both [Mother] and [R.L. were] putting pressure on the girls to recant their reports of
sexual abuse by [R.L.]."

The caseworker who submitted the court report did not explain why Saint Francis
was concerned that Mother was pressuring L.M. and D.M. to recant their reports of
sexual abuse by R.L. However, other documents from Saint Francis that were filed with
the court indicate that on August 5, 2019, Mother took L.M. and D.M. to the local district
attorney's office. And ultimately, Mother conceded that she brought L.M. and D.M. to the
district attorney's office on that date because she wanted them to recant their sexual abuse
allegations against R.L.

Although the transcript of the October 23, 2019 review hearing has not been
included in the record on appeal, the journal entry of this hearing is available to us.
According to this journal entry, the district court found that reintegration with Mother
may no longer be a viable option for D.M. and B.M. based on Saint Francis' reports as
well as its in-chambers conversation with L.M., D.M., and the guardian ad litem.
Consequently, the court ordered that a permanency hearing on Mother's parental rights
over D.M. and B.M. take place. The record also indicates that around the time of this

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hearing, the district court also restricted Mother's contact with L.M., D.M., and B.M. to
monitored phone calls only.

The district court scheduled the permanency hearing for November 20, 2019. In
preparation for this permanency hearing, Saint Francis filed a court report, updating the
district court on Mother's progress on her case plan tasks in B.M.'s CINC case. In it, the
caseworker who authored the report commented that Mother had not fully completed or
complied with any of her case plan tasks. Additionally, this caseworker revealed that
when Saint Francis contacted Mother to schedule a meeting, Mother responded that "she
[did] not want anything to do with [Saint Francis]" because it was "not allow[ing] her to
see her children."

A transcript of the November 20, 2019 permanency hearing is also, unfortunately,
not included in the record on appeal. Even so, the journal entry of this hearing has been
included in the record. According to this journal entry, at the conclusion of the
permanency hearing, the district court found that reintegration of D.M. and B.M. with
Mother was no longer a viable goal. Although not entirely clear, it seems that the district
court reached this finding based in part on evidence indicating that Mother remained in
contact with R.L. Because the district court found that reintegration of D.M. and B.M.
with Mother was no longer a viable goal, the district court scheduled a hearing on the
termination of Mother's parental rights over D.M. and B.M.

On January 23, 2020, the State filed a petition to terminate Mother's parental rights
over D.M. and B.M. with the district court. In this petition, the State argued that Mother
was unfit to parent D.M. and B.M. and was unlikely to become fit to parent D.M. and
B.M. in the foreseeable future for the following reasons:

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 (1) because Saint Francis' reasonable efforts to reintegrate Mother with D.M. and
B.M. had failed because of Mother's conduct as stated in K.S.A. 2020 Supp.
38-2269(b)(7);
(2) because Mother had failed to adjust her circumstances, conduct, or conditions
to meet D.M.'s and B.M.'s needs as stated in K.S.A. 2020 Supp. 38-
2269(b)(8);
(3) because Mother had failed to assure D.M.'s and B.M.'s care despite being
able to do so as stated in K.S.A. 2020 Supp. 38-2269(c)(1);
(4) because Mother had failed to maintain regular visitation, contact, and
communication with D.M., B.M., and Saint Francis as stated in K.S.A. 2020
Supp. 38-2269(c)(2); and
(5) because Mother had failed to carry out a reasonable reintegration case plan
approved by the district court as stated in K.S.A. 2020 Supp. 38-2269(c)(3).

In alleging that Mother was unfit under K.S.A. 2020 Supp. 38-2269(b)(7)-(b)(8)
and (c)(1)-(c)(3), the State pointed to evidence indicating that Mother remained in a
romantic relationship with R.L. and that she had not completed or complied with most of
her case plan tasks. The State then relied on this evidence to further allege that
termination of Mother's parental rights over D.M. and B.M. was in their best interests.

After the State filed its petition to terminate Mother's parental rights over D.M.
and B.M., COVID-19 forced the district court to delay Mother's termination hearing. In
the meantime, Saint Francis continued to provide the district court updates on D.M.,
B.M., and Mother. Saint Francis reported that in early January 2020, Mother completed
her case plan tasks of completing an age-appropriate parenting class and providing
documentation of its completion. Additionally, it reported that Mother was now
maintaining contact with St. Francis, attending individual therapy every other week, and
signing all necessary releases. But it also commented that Mother had not technically
complied with her remaining case plan tasks because those tasks had been discontinued

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given the district court's order prohibiting in-person visitation between Mother, D.M., and
B.M.

The hearing on the State's petition to terminate Mother's parental rights ultimately
occurred on August 10 and August 28, 2020. At the outset of this hearing, the district
court took judicial notice of D.M. and B.M.'s father's criminal case for committing
aggravated indecent liberties against L.M. in 2015. Although the court did not state what
criminal charges R.L. faced, it took judicial notice of R.L.'s criminal case stemming from
L.M.'s and D.M.'s sexual abuse allegations. Furthermore, the court took judicial notice of
the records and files of L.M.'s, D.M.'s, and B.M.'s current CINC cases as well as L.M.'s
and D.M.'s 2014 CINC cases, which had been closed after Mother successfully
completed her case plan tasks in those prior cases.

At the termination hearing, the State called two Saint Francis caseworkers who
had worked on B.M.'s CINC case. In addition to testifying about Mother's general
noncompliance with her case plan tasks, the first Saint Francis caseworker, Kimberly
Alarcon, testified that she believed Mother was still in a romantic relationship with R.L.
because she had seen Mother's van outside of R.L.'s house and R.L.'s truck outside of
Mother's apartment. Alarcon explained that on January 15, 2020, February 4, 2020, and
May 27, 2020, she took photos of the van that she believed belonged to Mother in front
of R.L.'s house. Alarcon testified that on July 6, 2020, she took photos of the truck that
she believed belonged to R.L. outside of Mother's apartment. Alarcon also testified that
on January 21, 2020, she took photos of the truck that she believed belonged to R.L. in
Saint Francis' office parking lot. Alarcon alleged that Mother drove R.L.'s truck to her
scheduled case planning conference at Saint Francis' office. Alarcon's photos—State's
Exhibits 1-5—were admitted into evidence.

During her cross-examination, Alarcon conceded that she never knocked on either
Mother's apartment or R.L.'s house to confirm that they were actually together inside

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their respective residences. Nonetheless, Alarcon seemed confident that Mother and R.L.
were together when she took her photos, noting that Mother's van was easily recognizable
based on visible damage to its right side.

The second Saint Francis caseworker who testified on the State's behalf, Santana
Treto, also testified about her belief that Mother remained in a relationship with R.L.
Although she had never seen Mother and R.L. together, she alleged that Saint Francis
received information that Mother asked her co-workers for money to hire an attorney to
represent her in L.M.'s, D.M.'s, and B.M.'s CINC cases but then used the money she
fundraised to bond R.L. out of jail. She explained that Mother's attempt to fundraise for
an attorney, in and of itself, was questionable because the district court had already
appointed an attorney to represent Mother in her daughters' CINC cases. Treto also
testified that she believed Mother allowed her daughters to have contact with R.L. for two
other reasons: (1) because the girls had mentioned speaking to R.L. despite Mother's
case plan task prohibiting Mother from allowing such contact and (2) because Mother
gave L.M. a cell phone so they could speak together secretly despite Mother's case plan
task prohibiting Mother from having unmonitored contact with her daughters.

Mother's case against the State's termination of her parental rights over D.M. and
B.M. consisted of her testimony and her co-worker's testimony. Mother's longtime friend
and co-worker testified that she had no memory of Mother ever raising money to bail
R.L. out of jail. She also testified that if Mother had ever tried to raise money to bail R.L.
out of jail, she would have known about it.

Likewise, Mother denied bonding R.L. out of jail on September 7, 2019, but did
admit that she took R.L. to "sign [up] for probation" two days later, on September 9,
2019. She explained that she took R.L. to the probation office because she and R.L. did
not know that they were barred from having contact with each other until someone at the

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probation office told them they could not be together. And she testified that upon learning
this information, she and R.L. parted ways and had not seen each other since.

When confronted with Alarcon's photos, State's Exhibits 1-5, Mother denied that
they depicted R.L.'s truck at her apartment and her van at R.L.'s house. Nonetheless,
while reviewing State's Exhibit 3, Mother conceded that State's Exhibit 3 depicted a van
"like" her van in front of R.L.'s house. Moreover, when asked whether she drove R.L.'s
truck to her case planning conference at Saint Francis' office on January 21, 2020,
Mother did not deny driving R.L.'s truck. Instead, she responded that she could not
remember whether she drove R.L.'s truck to her case planning conference on that date.

Mother admitted that she knew about L.M.'s and D.M.'s sexual abuse allegations
against R.L. by mid-June 2019. And she indicated that she continued to live with R.L.
after learning about those allegations in mid-June 2019 simply because nobody had told
her yet that she should not be in contact with R.L. When asked whether she believed
L.M.'s and D.M.'s sexual abuse allegations against R.L., Mother explained that she
initially believed their allegations but later doubted them. Although Mother did not
explicitly testify when she first started to doubt L.M.'s and D.M.'s sexual abuse
allegations against R.L., she alleged that sometime after L.M. and D.M. entered DCF
custody, they told her "[i]t was all lies" they manufactured "to have more liberties with
their friends." Mother also testified that this was why she brought L.M. and D.M. to the
local district attorney's office during their August 5, 2019 visitation. She explained that
since L.M. and D.M. had told her their sexual abuse allegations against R.L. were lies,
she wanted the district attorney "[t]o take away the charges" against R.L.

Prior to the conclusion of the hearing, Mother gave the district court seven letters
written by D.M. which she wanted the court to read. After reading them, the court met
with L.M., D.M., and the guardian ad litem in chambers, but on the record. Those

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conversations related to the outcomes which L.M. and D.M. wished to see in the case but
did not specifically bear on B.M.'s situation.

At the end of the hearing, the parties made closing arguments to the district court.
Of note, during the State's closing argument, the State's attorney suggested for the first
time that Mother was presumptively unfit under K.S.A. 2020 Supp. 38-2271(a)(3) based
on L.M.'s and D.M.'s 2014 CINC cases. Then, once the parties concluded their closing
arguments, the district court issued rulings from the bench concerning D.M. and B.M. At
the outset of its remarks, the district court reflected on the discussion which occurred
during the chambers meeting with the two older girls and praised their resilience and
concern for their younger sister, B.M.

Concerning B.M., the district court made the following findings:

"Based on the evidence that's been presented over the two days that this Court
has heard this matter, I do find that there is sufficient evidence to terminate . . . the
parental rights of [Mother over B.M.].
....
"[I]n regards to [B.M.], I . . . find that [Mother] has failed to demonstrate to the
Court that she is willing or able to make substantial changes in her life that have
convinced the Court that she would be able to adequately protect [B.M.] and provide the
kind of parental home and environment that [B.M.] needs, and I terminate her parental
rights on [B.M.], as well, again, based on the statutes set forth in the [State's] Petition:
Pursuant to K.S.A. 38-2269(b)(7), failure of reasonable efforts made by public or private
agencies to rehabilitate the family; K.S.A. 38-2269(b)(8), lack of effort on the part of the
parent to adjust . . . the parent's circumstances, conduct, or conditions to meet the needs
of the child; [K.S.A.] 38-2269(c)(1), failure to assure care of the child in the parental
home when able to do so; K.S.A. 38-2269(c)(2), failure to maintain regular visitation,
contact, or communication with the child or the custodian of the child; and, K.S.A. 38-
2269(c)(3), failure to carry out a reasonable plan approved by the Court directed towards
the integration for the child into a parental home.

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 "Therefore, I am ordering that [B.M.] remain placed in DCF custody and that . . .
the agency begin the process for adoption.
"I am directing that [B.M.] be allowed to continue to have contact with her two
older sisters. I am finding that this is in the best interest[s] of the child based on her age,
her circumstances, and the likelihood that neither parent's circumstances [nor] behavior
will change in the foreseeable future."

Although not directly pertinent to this appeal, the district court also made findings
resulting in the termination of Mother's parental rights to D.M., and expressed the hope
that a permanent custodianship could be established for her.

In making this short and bare recitation of its findings, the district court did not
explain what evidence it found persuasive as to each statutory factor. As an aside, we
note that a district court performs a real service to the parties, their counsel, and to
reviewing appellate courts when it details not only its findings, but what facts in the
record it relied upon in making those findings. If this is not done, as in this case, it
requires that the record be searched by others to determine if there is clear and
convincing evidence which supports the district court's findings. Since the great majority
of termination of parental rights orders are appealed to us by one or both parents, a
district court's failure to give reasons for its rulings substantially increases the workload
for the parties and the appellate courts and runs the risk of having the district court's
rulings misunderstood on appeal. But when a district court discusses the evidence it relied
upon in making its findings, it provides a helpful roadmap for determination as to
whether there is clear and convincing evidence which undergirds the court's decision—
the central question Mother raises here.

Following the district court's termination of her parental rights over B.M., Mother
appealed this ruling outside of K.S.A. 2020 Supp. 60-2103(a)'s 30-day deadline to appeal
the termination of her parental rights. See K.S.A. 2020 Supp. 38-2273(c). Yet, because
our Supreme Court had suspended all statutes of limitations and statutory time standards

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and deadlines applying to the conduct or processing of judicial proceedings when Mother
filed her notice of appeal, this court has jurisdiction over Mother's appeal. See Kansas
Supreme Court Administrative Order 2021-PR-009, effective January 26, 2021
(incorporating by reference all previous administrative orders suspending deadlines); see
also In re Marriage of Evans, No. 122,924, 2021 WL 1149385, at *6 (Kan. App. 2021)
(unpublished opinion) (considering father's otherwise untimely motion timely based on
our Supreme Court's administrative orders suspending statutory deadlines because of
COVID-19).

ANALYSIS

On appeal, Mother argues that the district court erred in four ways when
terminating her parental rights. First, she argues that the district court violated her
procedural due process rights by finding that she was presumptively unfit under K.S.A.
2020 Supp. 38-2271(a)(3) because the State gave her no notice of its intent to argue that
she was presumptively unfit under any factor of K.S.A. 2020 Supp. 38-2271(a). Second,
Mother argues that clear and convincing evidence did not support the district court's
remaining unfitness findings as required under K.S.A. 2020 Supp. 38-2269(a). Third,
Mother argues that the court erred in finding that Mother's unfitness was unlikely to
change in the foreseeable future, under K.S.A. 2020 Supp. 38-2269(a). Fourth, Mother
argues that the district court failed to adequately consider whether the termination of her
parental rights was in B.M.'s best interests as required under K.S.A. 2020 Supp. 38-
2269(g)(1).

We will first review the law that applies in termination of parental rights cases and
then address each of Mother's issues in turn.

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Applicable law

"[T]he interest of parents in the care, custody, and control of their children . . . is
perhaps the oldest of the fundamental liberty interests recognized by [the United States
Supreme Court]." Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000). But like all constitutional rights, even fundamental ones, this right is not without
limits. To terminate parental rights, the State may establish that a parent is presumptively
unfit under one of K.S.A. 2020 Supp. 38-2271(a)'s factors establishing presumptive
unfitness. For instance, under K.S.A. 2020 Supp. 38-2271(a)(3), the State may establish
that a parent is presumptively unfit by proving by clear and convincing evidence that "on
two or more prior occasions a child in the physical custody of the parent has been
adjudicated a child in need of care as defined by K.S.A. 2020 Supp. 38-2202(d)(1),
(d)(3), (d)(5) or (d)(11), and amendments thereto, or comparable proceedings under the
laws of another jurisdiction." If the State seeks to establish a parent's unfitness under one
of K.S.A. 2020 Supp. 38-2271(a)'s presumptive unfitness factors, however, the parent
must be given the opportunity to rebut the presumption of unfitness by a preponderance
of the evidence. K.S.A. 2020 Supp. 38-2271(b).

Moreover, K.S.A. 2020 Supp. 38-2271(a)'s presumptive unfitness factors "must be
applied in a manner that comports with procedural due process." In re K.R., 43 Kan. App.
2d 891, 898, 233 P.3d 746 (2010). This means that when the State seeks to establish a
parent's unfitness under one of K.S.A. 2020 Supp. 38-2271(a)'s presumptive unfitness
factors, the State must provide that parent adequate notice of its intent to argue that he or
she is presumptively unfit. And while the State's failure to provide a parent adequate
notice of its intent to invoke one of K.S.A. 2020 Supp. 38-2271(a)'s presumptive
unfitness factors does not necessarily violate that parent's procedural due process rights,
the best practice is for the State to give a parent notice of its intent to invoke a
presumptive unfitness factor before the evidentiary hearing on the termination of that
parent's rights. See 43 Kan. App. 2d at 898-99.

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 However, the State need not rely on one of K.S.A. 2020 Supp. 38-2271(a)'s
presumptive unfitness factors to terminate a parent's rights. It may also rely on K.S.A.
2020 Supp. 38-2269. Subsection (a) of K.S.A. 2020 Supp. 38-2269 states:

"When the child has been adjudicated to a child in need of care, the court may
terminate parental rights . . . when the court finds by clear and convincing evidence that
the parent is unfit by reason of conduct or condition which renders the parent unable to
care properly for a child and the conduct or condition is unlikely to change in the
foreseeable future."

Subsection (b) of K.S.A. 2020 Supp. 38-2269 lists nine factors the district court
must consider when analyzing whether a parent is unfit. For Mother's appeal, the most
significant portions of K.S.A. 2020 Supp. 38-2269(b) are subsections (b)(7) and (b)(8).
K.S.A. 2020 Supp. 38-2269(b)(7) provides that "[i]n making a determination of unfitness
the court shall consider . . . [the] failure of reasonable efforts made by appropriate public
or private agencies to rehabilitate the family." And K.S.A. 2020 Supp. 38-2269(b)(8)
provides that "[i]n making a determination of unfitness the court shall consider . . . [the]
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."

Subsection (c) of K.S.A. 2020 Supp. 38-2269 lists an additional four unfitness
factors that the district court must consider when the child is not in the parent's physical
custody. In relevant part, K.S.A. 2020 Supp. 38-2269(c) states that when the child is not
in the parent's physical custody, the district court must consider whether the parent failed
to do the following:

"(1) Fail[ed] to assure care of the child in the parental home when able to do so;
"(2) fail[ed] to maintain regular visitation, contact or communication with the
child or with the custodian of the child; [and]

15
 "(3) fail[ed] to carry out a reasonable plan approved by the court directed toward
the integration of the child into a parental home."

Importantly, the existence of any single K.S.A. 2020 Supp. 38-2269(b) or (c) factor
"'standing alone may, but does not necessarily, establish grounds for termination of
parental rights.'" K.S.A. 2020 Supp. 38-2269(f); In re J.S., 42 Kan. App. 2d 113, 120,
208 P.3d 802 (2009).

At the next step, if the district court finds that there is clear and convincing
evidence of a parent's unfitness and that the unfitness is unlikely to change as stated
under K.S.A. 2020 Supp. 38-2269(a), then K.S.A. 2020 Supp. 38-2269(g)(1) requires the
district court to consider whether termination of that parent's rights is in the best interests
of the child based on a preponderance of evidence. See In re R.S., 50 Kan. App. 2d 1105,
1115-16, 336 P.3d 903 (2014). In making the best interests finding, the district court must
"give primary consideration to the physical, mental and emotional health of the child."
K.S.A. 2020 Supp. 38-2269(g)(1). If the termination of the parent's rights is in the best
interests of the child's physical, mental, or emotional needs, then the district court must
terminate the parent's rights over the child. K.S.A. 2020 Supp. 38-2269(g)(1).

When considering a parent's challenge to the district court's unfitness finding for
clear and convincing evidence, we must consider "whether, after review of all the
evidence, viewed in the light most favorable to the State, the court is convinced that a
rational factfinder could have found the determination to be highly probable." In re K.R.,
43 Kan. App. 2d at 896. In contrast, we review a parent's challenge concerning the
district court's best interests finding for an abuse of discretion. In re R.S., 50 Kan. App.
2d 1105, 1116, 336 P.3d 903 (2014). A judicial action constitutes an abuse of discretion
if the decision is based on an error of law, an error of fact, or when no reasonable person
would agree with the district court. 50 Kan. App. 2d at 1116.

16
 When a parent argues that the district court made some additional factually
erroneous findings to support its best interests finding, we review the district court's
additional findings for substantial competent evidence. 50 Kan. App. 2d at 1116.
Substantial competent evidence exits if the evidence allows a reasonable person to accept
the validity of a conclusion. Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019).
Furthermore, to the extent Mother argues that the district court violated the plain
language of K.S.A. 2020 Supp. 38-2269 or K.S.A. 2020 Supp. 38-2271, such arguments
involve questions of law over which we have unlimited review. In re K.R., 43 Kan. App.
2d at 896.

Mother's complaint about the presumptive unfitness factor

In her first argument, Mother asserts that the district court violated her procedural
due process rights by finding her presumptively unfit under one of K.S.A. 2020 Supp. 38-
2271(a)'s presumptive unfitness factors. Although Mother never clarifies what K.S.A.
2020 Supp. 38-2271(a) presumptive unfitness factor the district court applied, it is readily
apparent that Mother believes the district court applied K.S.A. 2020 Supp. 38-
2271(a)(3)'s factor allowing the district court to make a presumptive unfitness finding
when a parent has previously had at least two children not in his or her custody
adjudicated as children in need of care. Mother's argument here hinges on the State's
failure to provide her adequate notice that it was going to allege that she was
presumptively unfit based on L.M.'s and D.M.'s 2014 CINC cases. Mother argues that she
had no notice that the State was going to argue that she was presumptively unfit until it
mentioned this presumptive unfitness factor during closing arguments. She therefore
argues that the State's failure to tell her it was going to allege that she was presumptively
unfit until closing arguments violated her procedural due process rights. And she, in turn,
also argues that the district court could not find her presumptively unfit as stated under
K.S.A. 2020 Supp. 38-2271(a)(3) without violating her procedural due process rights. See

17
In re K.R., 43 Kan. App. 2d at 898 (discussing minimum procedural due process required
to invoke one of K.S.A. 2020 Supp. 38-2271[a]'s presumptive unfitness factors).

From the record, it is true that the State did not provide notice to the parties or to
the district court prior to closing arguments that it wished to rely on a statutory
presumption of unfitness based upon two prior CINC cases for the older children. But the
State counters that, despite this omission, Mother's argument is meritless because the
district court never relied on any of K.S.A. 2020 Supp. 38-2271(a)'s presumptive
unfitness factors when it terminated Mother's parental rights. A review of the district
court's unfitness findings establishes that the State's argument is correct.

Here, the district court relied only on K.S.A. 2020 Supp. 38-2269, not any of the
K.S.A. 2020 Supp. 38-2271(a) presumptive unfitness factors, when terminating Mother's
parental rights over B.M. In fact, at the termination hearing, the district court explicitly
stated that it was terminating Mother's parental rights over B.M. based on the evidence
establishing Mother's unfitness under K.S.A. 2020 Supp. 38-2269(b)(7), (b)(8), and
(c)(1)-(3) without ever discussing K.S.A. 2020 Supp. 38-2271(a)'s presumptive unfitness
factors. Thus, the State's inapt closing argument about K.S.A. 2020 Supp. 38-2271(a)(3)'s
presumption of unfitness obviously had no bearing on the district court's ultimate
decision to terminate Mother's parental rights over B.M. Consequently, Mother's
argument that the district court violated her procedural due process rights is meritless.

Clear and convincing evidence of unfitness that was unlikely to change in the foreseeable
future

Mother's main argument, encompassing both her second and third arguments on
appeal, is that clear and convincing evidence did not support the district court's unfitness
findings, and that her unfitness was unlikely to change in the foreseeable future. In
essence, she asserts that insufficient evidence supported most of the factors that the

18
district court relied on under K.S.A. 2020 Supp. 38-2269(b) and (c) to find her unfit to
parent and unlikely to become fit to parent in the foreseeable future. The State responds
that the record on appeal undermines Mother's interpretation of the evidence supporting
her arguments. Just as with Mother's first argument, a review of the district court's
unfitness findings supports the State's position.

At the outset, we note that in Mother's appeal she does not challenge the district
court's unfitness finding under K.S.A. 2020 Supp. 38-2269(c)(1). To review, the district
court found that Mother was unfit to parent B.M. and unlikely to become fit to parent her
in the foreseeable future for the following five reasons:

(1) because it found that Saint Francis' reasonable efforts had failed to
rehabilitate Mother with B.M. as stated under K.S.A. 2020 Supp. 38-
2269(b)(7);
(2) because it found that Mother had failed to adjust her circumstances, conduct,
or conditions to meet B.M.'s needs as stated under K.S.A. 2020 Supp. 38-
2269(b)(8);
(3) because it found that Mother had failed to assure B.M.'s care in her parental
home when able to do so as stated under K.S.A. 2020 Supp. 38-2269(c)(1);
(4) because it found that Mother had failed to maintain regular visitation,
contact, or communication with B.M. as stated under K.S.A. 2020 Supp. 38-
2269(c)(2); and
(5) because it found that Mother had failed to carry out a reasonable
reintegration case plan that it had approved as stated under K.S.A. 2020
Supp. 38-2269(c)(3).

In her brief, although Mother challenges the district court's unfitness findings
under K.S.A. 2020 Supp. 38-2269(b)(7), (b)(8), (c)(2), and (c)(3), Mother's brief never
addresses the district court's unfitness finding under K.S.A. 2020 Supp. 38-2269(c)(1).

19
Yet, because K.S.A. 2020 Supp. 38-2269(f) provides that the existence of any unfitness
factor under K.S.A. 2020 Supp. 38-2269(b) or (c) may establish a parent's unfitness,
Mother needed to challenge each of the district court's unfitness findings to undermine its
termination of her parental rights over B.M. As a result, Mother's failure to challenge the
district court's specific unfitness finding under K.S.A. 2020 Supp. 38-2269(c)(1) is fatal
to her argument that clear and convincing evidence did not support the district court's
overall finding that she was unfit to parent and unlikely to become fit to parent in the
foreseeable future. See In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033
(2018) (holding that issue not briefed by appellant is deemed waived and abandoned).

But there is an additional serious problem with the adequacy of Mother's brief
challenging the district court's findings on those factors she does address. Kansas
Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) requires an appellant to cite
where in the record this court may find each factual statement supporting his or her
arguments. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294
P.3d 287 (2013) (relying on Rule 6.02[a][5] to hold that "[w]hen facts are necessary to an
argument, the record must supply those 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"). Previously, our Supreme Court has held that when an appellant violates
Rule 6.02(a)(5), we may presume that any factual statement without citation to the record
has no support in the record. 296 Kan. at 644. Thus, for us to even consider the facts as
alleged by Mother as true, her brief must include citations to the record for each factual
statement in support of her arguments.

Regrettably, Mother has included no citations to the record for any of her factual
statements in the analysis section of her brief. This constitutes a clear violation of Rule
6.02(a)(5). As a result, we may presume that each of Mother's factual statements in
support of her contention that clear and convincing evidence did not support the district
court's unfitness findings are without support in the record on appeal. And because we

20
may presume that each of Mother's factual statements is unsupported in the record,
Mother cannot establish that the district court's unfitness findings were not supported by
clear and convincing evidence.

But even if we would ignore the fact that Mother's arguments are inadequately
briefed, her specific complaints about the district court's unfitness findings rely on a
misconstruction of certain evidence in the record on appeal.

In her brief, Mother repeatedly contends that the district court erred by finding her
unfit to parent and unlikely to become fit to parent in the foreseeable future for two
reasons: (1) because she completed each of her case plan tasks directed toward B.M.'s
reintegration and (2) because the State merely relied on circumstantial evidence
indicating that she remained in contact with R.L. In fact, in her brief, each of Mother's
specific complaints about the district court's findings that she is unfit to parent and
unlikely to become fit to parent in the foreseeable future as stated under K.S.A. 2020
Supp. 38-2268(b)(7), (b)(8), (c)(2), and (c)(3) involve these contentions. As a result, at
the end of her brief, Mother asserts that we should reverse the termination of her parental
rights over B.M. because the district court's unfitness findings, which relied on her failure
to complete certain case plan tasks and continued contact with R.L., were not supported
by clear and convincing evidence.

First, Mother's argument that she had completed all of her case plan tasks directed
towards B.M.'s reintegration is simply not correct. Saint Francis' November 8, 2019 court
report, which was submitted in preparation for Mother's November 20, 2019 permanency
hearing, stated that Mother was not complying with any of her case plan tasks. Although
Mother had started an age-appropriate parenting class, had started attending individual
therapy, and had signed releases allowing Saint Francis to monitor her progress in her
parenting class and individual therapy in late November 2019, when the State petitioned
to terminate Mother's parental rights on January 31, 2020, Mother was still not in

21
compliance of many of her case plan tasks. These included her tasks of taking and then
following the recommendations of her mental health assessment, using appropriate
consequences when disciplining her daughters, and maintaining regular contact with
Saint Francis. And as of her April 27, 2020 case planning conference, which appears to
be Mother's final case planning conference before the district court terminated her
parental rights over B.M., Mother had still not followed the recommendations of her
mental health assessment. Also, Saint Francis' report from Mother's April 27, 2020 case
planning conference indicate that Mother never complied with her case plan tasks of
using appropriate consequences when disciplining her daughters and having all persons
residing with her complete background checks; instead, these case plan tasks were
discontinued upon the district court's orders that Mother's visitations with L.M., D.M.,
and B.M. be limited to monitored phone calls.

Consequently, Mother's contention that she completed all of her case plan tasks
directed towards B.M.'s reintegration is not supported by the record. The State presented
clear and convincing evidence that she did not complete all of her case plan tasks. As a
result, the district court properly relied on Mother's failure to complete all of her case
plan tasks in finding her unfit to parent and unlikely to become fit to parent in the
foreseeable future.

Second, regarding Mother's contention that only circumstantial evidence supported
that she remained in contact with R.L., it is first important to note that Mother did not
have any case plan tasks that explicitly prevented her from having contact with R.L.
Instead, her case plan tasks prevented her from allowing R.L. to have contact with L.M.,
D.M., and B.M. and from allowing anybody with "person offenses" to reside in her
apartment.

Still, according to Mother's own testimony at the termination hearing, Mother
understood that she was not supposed to have any contact with R.L. as of September 9,

22
2019. Again, at the termination hearing, she testified that on September 9, 2019, someone
at R.L.'s "probation" office told her that she and R.L. could not be together. Yet,
regardless of this fact, Mother should have known that her continued contact with R.L.
would not advance her reintegration efforts with B.M. given (1) that during the pendency
of B.M.'s CINC case, R.L. faced criminal charges for his alleged sexual touching of L.M.
and D.M. and (2) that her case plan tasks barred her from allowing R.L. any contact with
L.M., D.M., and B.M. Thus, although Mother's case plan tasks did not explicitly prohibit
her from having contact with R.L., Mother clearly knew she was not supposed to be
having contact with R.L. throughout the pendency of B.M.'s CINC case. And for this
reason, assuming the evidence established Mother's continued contact with R.L., the
district court could weigh Mother's continued contact with R.L. against Mother in making
its unfitness findings.

As for Mother's specific complaints about the State's evidence indicating that she
was still in contact with R.L., Mother's complaints involve the quality of the State's
evidence. She essentially asserts that because Saint Francis often failed to verify some of
the things it alleged, the State failed to present clear and convincing evidence that she
remained in contact with R.L. For example, in her brief, she stresses that nobody from
Saint Francis ever verified that she bonded R.L. out of jail. She also stresses that Alarcon
never knocked on the door of her apartment or R.L.'s house to confirm that they were
together at the times Alarcon believed she saw Mother's van in front of R.L.'s house and
R.L.'s truck in front of Mother's apartment.

Mother's complaints about the quality of the State's evidence have some merit. The
State's case in support of the termination of Mother's parental rights over B.M. did rely
largely on circumstantial evidence that Mother remained in contact with R.L. throughout
the pendency of B.M.'s CINC case. Also, much of Alarcon's and Treto's testimony on
behalf of the State involved hearsay statements from unidentified declarants about
Mother's continuing contact with R.L. Simply put, because the State's termination case

23
relied heavily on Mother's continued contact with R.L despite knowing about L.M.'s and
D.M.'s sexual abuse allegations, the State should have done a better job documenting
Mother's continued contact with R.L. In particular, the State's failure to present any
evidence about whether R.L. was ultimately convicted of any crime stemming from
L.M.'s and D.M.'s sexual abuse allegations is troubling.

The above weaknesses in the State's evidence concerning Mother's continued
contact with R.L., however, do not necessitate the reversal of the district court's
termination of Mother's parental rights over B.M. for a few reasons.

First, although Mother complains about the quality of the State's evidence
supporting her continued contact with R.L., Mother's own failure to include certain
information in the record on appeal has limited our review. In particular, Mother's failure
to include the October 23, 2019 review hearing transcript and the November 20, 2019
permanency hearing transcript in the record on appeal raises problems because the
journal entries of those hearings indicate that Mother's continued contact with R.L. were
discussed at those hearings in some depth.

For instance, the October 23, 2019 review hearing journal entry states that the
district court found that D.M.'s and B.M.'s reintegration with Mother may no longer be
viable based on Saint Francis' court report and its in-chambers conversation with L.M.,
D.M., and the guardian ad litem. Because Saint Francis' court report accused Mother of
bonding R.L. out of jail and bringing L.M. and D.M. to the local district attorney's office
to recant their sexual abuse allegations against R.L., there can be little doubt that
information pertinent to Mother's apparent continued contact with R.L. was discussed at
the October 23, 2019 review hearing.

Similarly, because the November 20, 2019 permanency hearing journal entry
states that the district court listened to Mother's testimony before finding that D.M.'s and

24
B.M.'s reintegration with Mother was no longer viable, it is highly likely that Mother
answered questions about her alleged continuted contact with R.L. in light of L.M.'s and
D.M.'s sexual abuse allegations against R.L. at the permanency hearing.

Accordingly, although Mother has correctly pointed out some weaknesses with the
State's evidence supporting the termination of her parental rights over B.M., it is difficult
to adequately gauge those weaknesses because Mother has failed to include important
hearing transcripts in the record on appeal. Because Mother failed to include these
hearing transcripts in the record on appeal, we may presume that the district court's
unfitness findings were proper. See City of Wichita v. Eisenring, 269 Kan. 767, 784, 7
P.3d 1248 (2000) (presuming district court's decision was proper when City failed to
furnish district court with pertinent rulings in record on appeal).

Second, the fact that the State relied on circumstantial evidence to prove Mother's
continued contact with R.L. does not mean that the State's evidence supporting Mother's
continued contact with R.L. was inadequate. It is a well-known rule that "[a]ny material
fact may be proven not only by direct testimony, but also by indirect or circumstantial
evidence, or by a combination of both." In re M.S., 56 Kan. App. 2d 1247, 1258, 447
P.3d 994 (2019). Thus, to prove that the State did not provide the district court with clear
and convincing evidence of her continued contact with R.L., Mother must do more than
challenge the State's evidence as simply being circumstantial.

But in her brief, Mother does just that. She argues that the State did not provide
clear and convincing evidence of her continued contact with R.L. simply because the
State presented no direct evidence of her continued contact with R.L. But because the
State could rely entirely on circumstantial evidence to support the termination of
Mother's parental rights over B.M., Mother's complaint about the State's evidence of her
continued contact with R.L. being inadequate because it was circumstantial is meritless.

25
 Third, the State's circumstantial evidence of Mother's continued contact with R.L.
was clear and convincing. Again, both Alarcon and Treto testified about receiving
information indicating that Mother remained in contact with R.L. Alarcon also
specifically testified about taking photos—State's Exhibits 1-5—of what she believed
was Mother's van in front of R.L.'s house and R.L.'s truck in front of Mother's apartment
on January 15, 2020, February 4, 2020, May 27, 2020, and July 6, 2020. Although
Mother denied that the van shown in State's Exhibits 1-5 was her van, she conceded that
the van in State's Exhibit 3 looked like her van in front of R.L.'s house. Furthermore,
State's Exhibits 3 and 4 depict a van with visible damage on its right side, and Alarcon
testified about Mother's van having visible damage on its right side.

In addition to the State's evidence supporting Mother's continued contact with
R.L., Mother's own testimony indicated that she remained in contact with R.L. after she
knew she should not be in contact with R.L. Again, at the termination hearing, Mother
testified that she did not have contact with R.L. after learning they were not supposed to
be together on September 9, 2019, at R.L.'s probation office. When asked whether she
drove R.L.'s truck to her January 21, 2020 case planning conference at Saint Francis'
office, however, Mother simply responded that she could not remember if she drove
R.L.'s truck to that case planning conference. Plainly, this response is problematic
because, assuming Mother's testimony about not having any contact with R.L. after
September 9, 2019, is true, Mother should have known for certain whether she drove
R.L.'s truck to her January 21, 2020 case planning conference.

Therefore, despite Mother's complaints otherwise, significant circumstantial
evidence supported her continued contact with R.L. When considering this circumstantial
evidence in the light most favorable to the State, a rational fact-finder could conclude that
Mother remained in contact with R.L. throughout the duration of B.M.'s CINC case. As a
result, the district court's reliance on Mother's continued contact with R.L. in finding her
unfit and unlikely to become fit in the foreseeable future was proper.

26
 Since we have concluded that Mother did not complete all of her case plan tasks
directed towards B.M.'s reintegration and that significant circumstantial evidence
supported Mother's continued contact with R.L. throughout the pendency of B.M.'s CINC
case, we now consider Mother's specific arguments about clear and convincing evidence
not supporting the district court's unfitness findings under K.S.A. 2020 Supp. 38-
2269(b)(7), (b)(8), (c)(2), and (c)(3). Once again, Mother's underlying complaints about
the district court's unfitness findings under K.S.A. 2020 Supp. 38-2269(b)(7), (b)(8),
(c)(2), and (c)(3) are not persuasive.

To begin, Mother's complaints about the district court's finding (1) that she was
unfit to parent and unlikely to become fit to parent in the foreseeable future because she
failed to adjust her circumstances, conduct, or conditions to meet B.M.'s needs as stated
under K.S.A. 2020 Supp. 38-2269(b)(8) and (2) that she failed to carry out a reasonable
reintegration case plan that it had approved as stated under K.S.A. 2020 Supp. 38-
2269(c)(3) hinge entirely on her contentions that she completed all her case plan tasks
and that the State's circumstantial evidence did not establish her continued contact with
R.L. For the reasons we have just discussed, those predicate contentions lack merit. By
extension, Mother's complaints about the district court's unfitness findings under K.S.A.
2020 Supp. 38-2269(b)(8) and (c)(3) also fail.

As for Mother's argument that insufficient evidence supported the district court's
unfitness finding that Saint Francis' reasonable efforts had failed to rehabilitate her with
B.M. as stated under K.S.A. 2020 Supp. 38-2269(b)(7), Mother primarily asserts that
clear and convincing evidence did not support this unfitness finding because the State
presented only circumstantial evidence to support her continued contact with R.L. Yet, in
addition to this unpersuasive assertion, Mother also argues that Saint Francis had not
made reasonable efforts to rehabilitate her and B.M. Although not entirely clear, Mother
seemingly contends that Saint Francis' rehabilitation efforts were unreasonable because

27
Saint Francis punished her for giving L.M. an unauthorized cellphone and because they
discontinued her in-person visits with her daughters.

But Mother's accusation is not supported by the record on appeal. To the contrary,
from what is available in the record, it appears that the district court ruled that Mother
could only have monitored phone calls with L.M., D.M., and B.M. sometime in late
October 2019 after Saint Francis received information that Mother remained in contact
with R.L. and that Mother had taken L.M. and D.M. to the local district attorney's office
to recant their sexual abuse allegations against R.L. Thus, Mother's complaint about
insufficient evidence supporting the district court's unfitness finding under K.S.A. 2020
Supp. 38-2269(b)(7) is unconvincing.

Turning to Mother's contention that insufficient evidence supported the district
court's unfitness finding that she failed to maintain regular visitation, contact, or
communication with B.M. as stated under K.S.A. 2020 Supp. 38-2269(c)(2), Mother
argues that clear and convincing evidence did not support this unfitness finding because
she maintained regular visitation, contact, and communication with B.M. throughout the
pendency of B.M.'s CINC case. In making this argument, Mother implies that the only
evidence supporting the district court's finding that she failed to maintain regular
visitation, contact, or communication with B.M. was a Saint Francis' caseworker's
complaint about L.M. and D.M. spending their in-person visits with Mother on their cell
phones. But Mother's insinuation is not true.

While a caseworker reported that L.M. and D.M. spent most of their in-person
visitations with Mother on their cell phones, this was not the only evidence supporting
the district court's finding that Mother failed to maintain regular visitation, contact, or
communication with B.M. Instead, the main evidence supporting Mother's failure to
maintain regular visitation, contact, or communication with B.M. comes from the reports
filed by Saint Francis, which indicate that Mother failed to maintain regular contact with

28
them after August 6, 2019. Moreover, although it seems that Mother regularly attended
her in-person visitations with B.M. when she was allowed to do so, it also seems that
Mother had no phone calls with B.M. after the district court limited Mother's contact with
L.M., D.M., and B.M. to monitored phone calls in late October 2019.

Most compellingly, the evidence before the district court indicated that Mother
had no contact with B.M. whatsoever during the 10 months leading up to the termination
hearing. Consequently, Mother's argument that only a caseworker's observation about
L.M. and D.M. being on their cell phones during their in-person visitations with Mother
supported the district court's unfitness finding under K.S.A. 2020 Supp. 38-2269(c)(2) is
unconvincing.

Additionally, each of Mother's specific complaints about the lack of clear and
convincing evidence supporting the district court's unfitness findings ignores the
evidence submitted at the termination hearing. Once again, when DCF obtained custody
of B.M., she had just turned four years old. According to B.M.'s intake papers, before she
entered DCF custody, she had lived with her babysitter since she was two-and-a-half
months old. Then, after B.M. entered DCF custody, DCF contracted with Saint Francis to
provide case planning services for Mother and B.M. And after this, Saint Francis created
case plan tasks for Mother that were directed toward B.M.'s reintegration into her custody
and that were also approved by the district court. As previously addressed, however, clear
and convincing evidence supported that Mother failed to comply and complete many of
her case plan tasks. As we have noted, both the State's evidence and Mother's testimony
supported that Mother remained in contact with R.L., the alleged sexual abuser of her two
oldest daughters, throughout the pendency of B.M.'s 13-month CINC case while having
no contact with B.M. the final 10 months of B.M.'s CINC case. Therefore, at the time of
termination, B.M. had lived with her Mother less than three months of her life.

29
 In short, when considering the preceding evidence in the light most favorable to
the State, this evidence establishes that Saint Francis made reasonable efforts to
rehabilitate Mother with B.M. but those efforts had failed, which justified the district
court's findings under K.S.A. 2020 Supp. 38-2269(b)(7). The evidence also establishes
that Mother failed to adjust her circumstances, conduct, or conditions to meet B.M.'s
needs as stated under K.S.A. 2020 Supp. 38-2269(b)(8). The evidence also supports the
district court's conclusion that Mother failed to maintain regular visitation, contact, or
communication with B.M. as stated under K.S.A. 2020 Supp. 38-2269(c)(2). Likewise,
the evidence justified the district court in finding that Mother failed to carry out a
reasonable reintegration case plan that had been approved by it as stated under K.S.A.
2020 Supp. 38-2269(c)(3). And it establishes that Mother failed to assure B.M.'s care in
her parental home when able to do so as stated under K.S.A. 2020 Supp. 38-2269(c)(1)—
the unfitness finding that Mother has entirely abandoned on appeal. And to reiterate the
most egregious fact concerning Mother and B.M., when considering the preceding
evidence in the light most favorable to the State, the evidence supports that B.M. lived in
Mother's parental home less than three months of her entire life.

Thus, to summarize, none of Mother's complaints about the lack of clear and
convincing evidence supporting the district court's unfitness findings under K.S.A. 2020
Supp. 38-2269(b)(7), (b)(8), (c)(1), and (c)(2) are persuasive to us. Furthermore, clear
and convincing evidence otherwise supported each of the district court's unfitness
findings. As a result, Mother has not proven that the district court erred in finding her
unfit to parent B.M. and that she was unlikely to become fit to parent B.M. in the
foreseeable future as required by K.S.A. 2020 Supp. 38-2269(a). Thus, we find the
district court was correct in its finding that Mother was unfit to parent B.M. and unlikely
to become fit to parent B.M. in the foreseeable future as meant under K.S.A. 2020 Supp.
38-2269(a).

30
Whether termination was in B.M.'s best interests

In her final argument on appeal, Mother asserts that the termination hearing
evidence did not support the district court's finding that termination of her parental rights
over B.M. was in B.M.'s best interests. According to Mother, the district court only gave
passing consideration to B.M.'s physical, mental, and emotional health when it found that
termination of her parental rights was in B.M.'s best interests.

To support her argument, Mother stresses that B.M. never appeared before the
district court and complains that the guardian ad litem never met with L.M., D.M., or
B.M. before the termination hearing. Mother further alleges that Saint Francis' court
reports about B.M.'s well-being are unreliable because the Saint Francis caseworkers
relied heavily on biased information provided by the foster parents, who have indicated
that they are willing to adopt B.M. Mother argues that because of these adoption plans for
B.M., the proposed adoptive parents could not have provided credible information about
B.M.'s well-being. Additionally, in challenging the district court's best interests finding,
Mother contends that the district court's finding is comparable to the district court's best
interests finding in In re K.R., 43 Kan. App. 2d at 904, which this court determined to be
statutorily inadequate.

The State counters that Mother's argument is meritless because the district court
complied with K.S.A. 2020 Supp. 38-2269(g)(1)'s requirement to "give primary
consideration to the physical, mental and emotional health of the child." In the end, the
State's argument is persuasive because Mother's arguments hinge on misconstruing the
termination hearing evidence and the district court's best interests finding.

To begin with, although B.M. never appeared before the district court or at a case
planning conference, this was because she was just four years old when she entered DCF
custody and just five years old when the district court terminated Mother's parental rights.

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At the termination hearing, the district court and the guardian ad litem both explicitly
noted that B.M. was not present because of her youth. Thus, there was a legitimate
explanation for B.M.'s absence.

Moreover, Mother's contention that the guardian ad litem never met L.M., D.M.,
or B.M. before the termination hearing is not true. Although it is unclear whether the
guardian ad litem met with L.M., D.M., or B.M. outside of court, the guardian ad litem
did meet with L.M. and D.M. at the June 19, 2019 temporary custody hearing and at the
October 23, 2019 review hearing. Despite this fact, Mother never complained about the
guardian ad litem's alleged lack of contact with L.M., D.M., or B.M. before the district
court. Nor did she complain about any potential credibility issues with Saint Francis'
reports on B.M.'s well-being before this appeal. Accordingly, Mother cannot raise these
complaints for the first time on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan.
375, 403, 266 P.3d 516 (2011) (holding that arguments not raised before district court
cannot be raised for first time on appeal).

Finally, Mother's comparison of her case to In re K.R. is flawed. In In re K.R., the
district court found that it was in the children's best interests to terminate the mother's
parental rights for two reasons: (1) because her children needed permanency and (2)
because her "'past actions reflect[ed] an inability to carry through with her day-today
obligations for the benefit and best interests of [the children].'" 43 Kan. App. 2d at 904.

On appeal, K.R.'s mother argued that these best interests findings did not comply
with K.S.A. 2009 Supp. 38-2269(g)(1)'s requirement to consider whether termination of
her parental rights was in the best interests of her children's physical, mental, and
emotional health. Ultimately, a panel of our court agreed with the mother, rejecting the
district court's best interests finding because it did not "weigh the benefits of permanency
for the children without the presence of their parent against the continued presence of the
parent and the attendant issues created for the children's lives." 43 Kan. App. 2d at 904. It

32
explained that in making a best interests finding, district courts "must consider the nature
and strength of the relationships between children and parent and the trauma that may be
caused to the children by termination, weighing these considerations against a further
delay in permanency for the children." 43 Kan. App. 2d at 904. "In other words, many
parents may be unable to carry through with obligations that are in the best interests of
their children, but this does not mean that termination of their parental rights would be in
the best interests of their children.". 43 Kan. App. 2d at 904.

In reaching this holding, the In re K.R. court noted that the mother's termination
case was unique because her children's guardian ad litem opposed termination of her
parental rights. 43 Kan. App. 2d at 904-05. Likewise, it noted that the mother's
termination case was unique because unlike the parents in many termination of parental
rights cases, the mother faced "no allegations of abuse, no allegations of addiction, no
allegation of filthy living conditions, no allegations of a dangerous relationship with a
boyfriend, and no allegations of lack of interest in the children." 43 Kan. App. 2d at 904-
05.

Here, the first major difference between Mother's termination case and In re K.R.
is that Mother's termination case does not involve such unique facts. To begin with, the
guardian ad litem in Mother's termination case supported the termination of Mother's
parental rights over B.M. And unlike In re K.R., Mother's termination case involved
allegations of abuse, a dangerous relationship with a boyfriend, and evidence supporting
Mother's disinterest in B.M. As to this last point, Mother's disinterest in B.M. was
established by the evidence indicating that B.M. lived with her babysitter for most of her
life until she was nearly four years old, that Mother initially wanted to voluntarily
terminate her parental rights over B.M. in order to maintain her relationship with R.L.,
and that Mother did not maintain any contact with B.M. during the 10 months preceding
her termination hearing.

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 Mother's case is further distinguishable from In re K.R. because, unlike the district
court in In re K.R., the district court in this case weighed the nature and strength of
Mother and B.M.'s relationship as well as the trauma that termination might cause B.M.
against the evidence supporting that termination of Mother's parental rights over B.M.
was in B.M.'s best interests. The district court's best interests finding hinged in part on the
likelihood that B.M. would become a sexual abuse victim like her older sisters should
B.M. be returned to Mother's custody.

Once more, at the end of the termination hearing, the district court jointly
considered whether it was in D.M.'s and B.M.'s best interests to have their Mother's
parental rights terminated. In finding that it was in B.M.'s best interests to have Mother's
parental rights terminated, the district court never explicitly found that R.L. sexually
abused L.M. and D.M. All the same, some of the district court's comments establish that
it implicitly found that R.L. had sexually abused L.M. and D.M. For instance, it
referenced how strong L.M. and D.M. were "[d]espite what [they had] been through."
Also, in giving DCF permanent custodianship of D.M., the district court told Mother that
she "did not protect [her] daughter." Regardless, after implicitly finding that Mother had
not protected her daughters from R.L.'s sexual abuse, the district court further found that
L.M.'s and D.M.'s history as sexual abuse victims was "very important" to its best
interests finding because their history as sexual abuse victims provided it with "insight
into the things that could potentially happen to [B.M.]" should B.M. return to Mother's
custody. It then found that B.M.'s age, B.M.'s circumstances, and Mother's unlikeliness of
becoming fit to parent in the foreseeable future established that it was in B.M.'s best
interests to have Mother's parental rights terminated.

As a result, Mother's case is very different from In re K.R. Unlike in In re K.R.,
here, the district court's best interests finding hinged on the specific danger Mother posed
to B.M. based on Mother's history of allowing sexual abusers around her daughters. The
district court found that the likelihood and risk of Mother exposing B.M. to sexual abuse,

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given her history of exposing her older daughters to sexual abusers, outweighed any risk
of trauma to B.M.'s well-being from the termination of Mother's parental rights.

Therefore, although Mother contends that insufficient evidence supported the
district court's finding that termination of her parental rights was in B.M.'s best interests,
none of Mother's arguments about the district court's best interests finding have merit. In
fact, the analysis required to address Mother's comparison of her termination case to In re
K.R. proves that the district court adequately considered B.M.'s best interests because in
making its best interests finding, the district court considered the benefits of placing B.M.
up for adoption against the benefits of B.M. potentially attaining permanency with
Mother considering Mother's ongoing issues, including her ongoing problem of allowing
sexual abusers in her daughters' lives. As a result, the district court did not abuse its
discretion by finding that termination of Mother's parental rights was in B.M.'s best
interests.

CONCLUSION

In summary, we find Mother's complaints about the district court erroneously
terminating her parental rights over B.M. to be unpersuasive. Although Mother argues
that the district court violated her procedural due process rights by finding her
presumptively unfit under K.S.A. 2020 Supp. 38-2271(a)(3), the district court never
found that Mother was presumptively unfit under any K.S.A. 2020 Supp. 38-2271(a)
presumptive unfitness factor. Also, although Mother alternatively asserts that clear and
convincing evidence did not support the district court's unfitness findings under K.S.A.
2020 Supp. 38-2269, there are numerous problems with Mother's arguments, including
her contention that clear and convincing evidence did not support the district court's
unfitness findings under K.S.A. 2020 Supp. 38-2269(b)(7), (b)(8), and (c)(1)-(3). Finally,
Mother's argument that insufficient evidence supported the district court's best interests
finding hinged on misconstruing certain evidence and misapplying In re K.R.

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Accordingly, we affirm the district court's termination of Mother's parental rights over
B.M.

Affirmed.

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