concurring: I concur in the result. I fully agree that insufficient evidence to prove unfitness was presented. In addition, I believe the statute in question cannot be reasonably modified to meet constitutional muster. The purpose of K.S.A. 1994 Supp. 38-1585 is clear. It would create a presumption of parental unfitness, and a concomitant basis for severance of parental rights, out of certain previous judicial findings of difficulties in parenting. The court’s opinion very thoroughly details the difficulties with this approach and attempts to save the statute with a major reworking of it. My difficulty with the court’s action is that after the court’s reworking, there is no presuming left in the presumption.
The court details what needs to be shown for the “presumption” to survive in any meaningful way. Essentially, the party seeking the presumption must prove the probative value of the previous findings by demonstrating, through a presentation of the *683underlying facts behind the judicial findings, the weight and relevance of the previous findings as they apply to the current case. While this is obviously the appropriate procedure from a constitutional standpoint, it completely eliminates any meaningful status as a presumption of the earlier findings. Without such a foundation, the presumption is so insubstantial as to hardly bear discussion.
To avoid confusion, we should simply say this attempt to create a presumption out of evidence that may have little weight or relevance is violative of our due process protections. As the court noted, we are dealing with a very important natural right of parents. Although we have approved numerous procedural and evidentiary reforms to make the resolution of claims of parental unfitness more efficient, this change goes too far and unfairly shifts the burden of proof to the parent to prove fitness.