concurring: I concur in the result. I particularly agree with the majority’s holding that mother’s conviction for ag*79gravated battery upon an older child was sufficient to support E.T.’s child in need of care adjudication.
However, I would restrict our holding on jurisdiction to simply finding that Kansas obtained child-custody jurisdiction pursuant to K.S.A. 38-1348(a)(3) when Missouri declined to exercise jurisdiction. I perceive it unnecessary and ill-advised to declare Missouri the home state of E.T., in contravention of that forum’s finding that Kansas was E.T.’s home state. Further, I am uncomfortable declaring that E.T. had no significant connection with Kansas. Nevertheless, as the majority notes, when Missouri dismissed its action in favor of Kansas, this State remained as the only viable forum in which to litigate child custody.
Likewise, I would find that reversal of M.T.’s termination of parental rights is required by the district court’s reliance on an inapplicable presumption. As the majority notes, the trial court misapplied K.S.A. 38-1585(a)(3) to M.T., based on only one prior child in need of care adjudication. To me, that finding would so taint the district court’s ruling as to require remand for a determination based solely upon the factors described in K.S.A. 2005 Supp. 38-1583.
Finally, I feel compelled to comment on the precedent set by In re J.L., 20 Kan. App. 2d 665, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995). That case involved a proceeding in 1994 to terminate the mother’s parental rights in which the State relied solely on a certified copy of a 1986 order terminating mother’s parental rights to another child. Apparently, the facts supporting the 1986 termination were not presented in the 1994 case, although the same judge presided over both proceedings. Mother argued that the presumption of unfitness in K.S.A. 1994 Supp. 38-1585(a)(l) and (3) violated her due process rights under the Fourteenth Amendment to the United States Constitution.
After discussing procedural due process in general and the specific liberty interests of a parent, a majority of the court found that “the presumption as applied in this case was a violation of the procedural due process rights of the natural mother.” 20 Kan. App. 2d at 676. In reaching that result, the majority appeared to be troubled that an 8-year-old adjudication could shift the burden of *80proof to the mother without the State showing that the facts supporting the prior unfitness remained relevant to the question of the mother s current fitness to parent. 20 Kan. App. 2d at 672-73.
However, the In re J.L. majority recognized its duty to construe a statute in a manner that would be constitutional, if its construction would retain the apparent legislative intent of the enactment. 20 Kan. App. 2d at 677. Therefore, the majority did not hold that K.S.A. 38-1585 was unconstitutional on its face, but rather upheld its general provisions by focusing on the phrase, “in the manner provided in K.S.A. 60-414.” 20 Kan. App. 2d at 677-78.
As noted in our majority opinion above, In re J.L. directed the trial court to malee the initial determination of whether the State had presented a K.S.A. 60-414 subsection (a) presumption or a subsection (b) presumption. The majority recites the trial court's task as determining whether the presumption arises from facts that have probative value as evidence of the existence of the presumed fact. In re J.L. suggested that trial courts, in making that determination, consider the following factors:
“(1) the passage of time between the earlier order of termination and the current proceeding; (2) whether the same children or siblings of those children were involved in the earlier proceeding; (3) whether the father or fathers of the children involved are the same persons involved in the prior proceeding; (4) whether the facts on which the earlier presumption is based bear any resemblance to the current factual scenario; (5) whether the circumstances surrounding the presumption are such that, in accordance with the experience of mankind, there is a natural and rational evidentiary relation between the facts proven in the earlier action and the facts alleged to be true in the current action; (6) whether the parent has more convenient access to evidence relating to the unfitness to be presented; and (7) whether, by requiring the parent to go forward with the evidence to rebut the presumption, he or she is thereby being subjected to unfairness or hardship.” 20 Kan. App. 2d at 681-82.
The In re J.L. majority invited trial courts to consider other relevant factors, noting that its list was not intended to be exclusive. However, trial courts were directed to “give a detailed analysis of all the factors explaining the reasons for [their] decision[s]” and warned that “[a] conclusoiy determination that unfit once means unfit always will not be accepted.” 20 Kan. App. 2d at 682.
*81Interestingly, in analyzing the impact of K.S.A. 60-414 on burden shifting, In re J.L. did not discuss the explicit legislative mandate in subsection (b) of K.S.A. 38-1585 that clearly states: “The burden of proof is on the parent to rebut the presumption.” K.S.A. 38-1585(b) does not recognize the distinction between a K.S.A. 60-414(a) presumption and a subsection (b) presumption, nor does it acknowledge that sometimes the presumption only creates a burden to come forward with evidence without shifting the burden of proof. By necessity, then, the In re J.L. court implicitly nullified, or at least seriously modified, that portion of the statute.
My concern is drat the legislature has amended K.S.A. 38-1585 twice since the 1995 decision in In re J.L., including modifying the provisions of subsection (b). See L. 1998, ch. 139, sec. 9; L. 2000, ch. 174, sec. 15. However, the provision that unequivocally places the burden of proof on the parent to rebut the presumption of unfitness remains as it was prior to In re J.L. In fairness to the legislature, as well as to the bench and bar of this State, we should clarify that In re J.L.’s statutory construction resulted in K.S.A. 38-1585(b) not meaning what it clearly and plainly says.
Personally, I favor the analysis in Judge Pierron’s concurring opinion in In re J.L., in which he opined that, after the majority reworked the statute to malee it constitutional, “there is no presuming left in the presumption.” 20 Kan. App. 2d at 682. If the State must prove the current relevance of the facts which supported the prior termination, it is well on the way to meeting its burden without the presumption. Further, I perceive that we are asking trial courts to engage in a complicated analysis to reach a largely subjective determination. As a practical matter, the procedure destroys the efficacy of the K.S.A. 38-1585 presumptions. “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.” 20 Kan. App. 2d at 683 (J., Pierron, concurring).
At the very least, however, I would find that the trial court failed to give a detailed analysis of all of the factors to explain its decision to apply K.S.A. 38-1585(a)(l) as a K.S.A. 60-414(a), burden-shifting presumption. Giving deference to our 8-year-old precedent of *82In re J.L., we cannot accept the trial court’s conclusory determination, and reversal is required.