In re N.O. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,292
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of
N.O., E.O., and Z.Z.,
Minor Children.
MEMORANDUM OPINION
Appeal from Seward District Court; LINDA P. GILMORE, judge. Opinion filed May 29, 2020.
Affirmed.
Kelly Premer Chavez, of Tahirkheli & Premer-Chavez Law Office, LLC, of Liberal, for appellant
natural mother.
Lane L. Frymire, of Yoxall, Antrim & Frymire, LLP, of Liberal, for appellee State of Kansas.
Before ARNOLD-BURGER, C.J., MALONE and GARDNER, JJ.
PER CURIAM: Mother appeals the termination of her parental rights to her three
children—N.O., E.O., and Z.Z. Mother contends that the decision was supported by
insufficient evidence that she was an unfit parent or that termination was in the children's
best interests. The district court also terminated the parental rights of N.O. and E.O.'s
father and Z.Z.'s undetermined father. The fathers, however, do not participate in this
appeal. Because the record supports the district court's ruling, we affirm.
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Factual and Procedural History
The State filed its child in need of care (CINC) petitions on May 23, 2016,
alleging N.O., E.O., and Z.Z. were children in need of care because they were either
without adequate parental care, control, or subsistence and that it was not due solely to
the lack of financial means of the parents. The petition also alleged that the children were
not attending school. The petition also included specific allegations of N.O.'s truancy and
a date on which N.O. was left at her school without a ride home, Mother's physical abuse
toward Z.Z., general accusations of neglect of all three children, and Mother's use and
sale of illicit drugs.
On June 24, 2016, the district court entered an order of informal supervision with
the Kansas Department for Children and Families (DCF) services and allowed the
children to continue living with Mother. But after Mother tested positive for
methamphetamine and marijuana on September 15, 2016, the district court granted the
State's request to have the children removed from Mother's custody and placed the
children in the temporary custody of DCF.
An amended CINC petition was filed in November 2016, raising new allegations
against Mother regarding additional drug use, loss of employment, and domestic abuse
between Mother and a male friend. The district court adjudicated the children CINC in
February 2017. The district court ordered that the children remain in DCF custody with
placement in DCF's discretion and adopted a proposed permanency plan with a goal of
reintegration with Mother.
In December 2017, the district court held a permanency hearing and found that
reintegration was no longer viable. In May 2018, the State moved to find Mother unfit
and to terminate her parental rights. Although the motion listed several specific reasons
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termination was appropriate, the motion focused mainly on Mother's drug use and
inability to carry out a reasonable plan approved by the district court.
A three-day termination hearing was set on the State's motion to terminate. The
State presented testimony from various DCF and Saint Francis Community Services
(SFCS) workers, including Mother's SFCS reintegration supervisor. The State also
presented testimony from N.O.'s elementary school principal to discuss N.O.'s school
attendance, Mother's probation officer to discuss Mother's probation violation and
subsequent revocation, and the records clerk for Seward County's Sheriff's Office to
discuss criminal cases initiated against Mother during this case. N.O. and E.O.'s father
testified. But Mother failed to appear on the third day of hearings and thus did not testify.
But through her attorney, Mother objected to the termination of her parental rights. The
guardian ad litem—Barbara Nash—recommended that Mother's rights be terminated
because she had not completed her case plan requirements. Nash also argued that the
children's interests would be best served through termination of Mother's parental rights
because Mother was unable to care for the children and the children had been in DCF
custody since 2016 and needed permanency. Prosecution noted that this case was
originally filed in May 2016, an amended petition was filed in November 2016, and the
children were adjudicated CINC in February 2017. The State argued that in that time,
Mother consistently thwarted state agency efforts to help the family. The State also asked
that the court consider the factors under K.S.A. 2019 Supp. 38-2269(b)(3)-(b)(9).
The magistrate court announced its decision from the bench. The court ultimately
found that the evidence was clear and convincing that Mother was unfit by reason of
conduct or condition rendering her unable to properly care for the children, and that this
conduct or condition was unlikely to change in the foreseeable future. The court's finding
was based in part on Mother's "excessive use of narcotics or dangerous drugs." See
K.S.A. 2019 Supp. 38-2269(b)(3). The magistrate court found that reasonable efforts by
childcare agencies were made to rehabilitate the family but that those efforts failed. See
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K.S.A. 2019 Supp. 38-2269(b)(7). The magistrate court also found that Mother lacked
effort to adjust her circumstances to meet the needs of her children, she failed to maintain
regular visitation, maintain employment, obtain a home, carry out a reintegration plan, or
pay any reasonable portion of costs of substitute care and maintenance of the children.
See K.S.A. 2019 Supp. 38-2269(c). After considering the children's physical, mental, and
emotional health needs, the court held that it was in the best interests of all three children
to terminate Mother's parental rights.
Mother appealed to the district court. The district court affirmed the magistrate
court's decision.
Mother timely appealed to this court.
Legal Analysis
Mother first challenges the sufficiency of the evidence supporting the district
court's findings that she was unfit as a parent and that any unfitness was unlikely to
change in the foreseeable future. See K.S.A. 2019 Supp. 38-2269(a). Then, Mother
challenges the court's findings that terminating her parental rights was in her children's
best interests. Because the record shows that these decisions were supported by clear and
convincing evidence, we find no error and affirm the termination of Mother's parental
rights.
Standard of Review and Basic Legal Principles
"When this court reviews a district court's termination of parental rights, we
consider whether, after review of all the evidence, viewed in the light most favorable to
the State, we are convinced that a rational factfinder could have found it highly probable,
i.e., by clear and convincing evidence, that the parent's right should be terminated." In re
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K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011). We do not weigh conflicting
evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re
B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
A parent has a constitutional right to a continuing relationship with his or her
child. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982); In re B.D.-Y, 286 Kan. at 697-98. Because this right is a constitutionally
protected liberty interest, the State may terminate an individual's parental rights only
upon clear and convincing proof of parental unfitness. K.S.A. 2019 Supp. 38-2269(a); In
re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 Kan. P.3d 903 (2014); see Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (substantive liberty
interest); Pierce v. Society of the Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed.
1070 (1925) (recognizing "the liberty of parents and guardians to direct the upbringing
and education of children under their control").
Once a child has been adjudicated a CINC, the district 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."
K.S.A. 2019 Supp. 38-2269(a). When considering a parent's unfitness, the district court
may apply the nonexclusive list of factors in K.S.A. 2019 Supp. 38-2269(b) and when the
child has been removed from the custody of the parent, the court may consider the
additional factors in K.S.A. 2019 Supp. 38-2269(c). The court may also rely on any of the
statutory presumptions in K.S.A. 2019 Supp. 38-2271 to establish a parent's unfitness.
Any single factor may establish grounds for termination of an individual's parental rights.
K.S.A. 2019 Supp. 38-2269(f).
When determining whether a parent is unlikely to change in the foreseeable future,
courts use "child time" as the measure. Children experience the passage of time in a way
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that makes a month or a year seem considerably longer than it would be for an adult, thus
this difference in perception drives courts toward a prompt decision to establish
permanence for the children involved. K.S.A. 2019 Supp. 38-2201(b)(4); In re M.B. 39
Kan. App. 2d 31, 45, 176 P.3d 977 (2008).
Sufficient Evidence Supports the Decision to Terminate Mother's Parental Rights.
Mother addresses each of the case plan tasks that she was required to complete
before reintegration. She argues that she completed or nearly completed all the tasks
assigned. Mother also argues that the State agencies failed to make reasonable efforts to
reintegrate the children with her, implying that the agencies impeded completion of some
of the case plan tasks. We address each of the tasks listed in Mother's case plan and find
that clear and convincing evidence supports the district court's determination that Mother
was unfit and that unfitness was unlikely to change in the foreseeable future.
1. Drug and Alcohol Evaluation and Completion of Recommendations
The first task listed in Mother's case plan required that Mother complete a drug
and alcohol evaluation with an approved provider and follow all recommendation from
that evaluation. Mother was also required to sign a release for SFCS to obtain a copy of
the recommendations. Mother argues that she completed several drug and alcohol
evaluations—including one in May 2018. Mother also argues that the requirement that
she follow all recommendations was "unreasonable" because although she attended
outpatient treatment at one facility, she was later told that she could no longer go to that
facility and would need to go to a different location. But the record shows that Mother
did not follow the recommendations of her evaluations and thus did very little to
complete even a portion of this case plan task. And although the record is unclear as to
why Mother was required to choose a different outpatient treatment location, Mother fails
to establish why such a requirement would prohibit her from completing this task.
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DCF worker—Angela Hernandez—first contacted Mother in April 2015.
Hernandez testified at the termination hearing and explained that when Mother gave birth
to her youngest child (Z.Z.), Mother tested positive for both methamphetamine and
marijuana. And Mother admitted to using drugs with her uncle. Because Mother was
willing to be enrolled in inpatient treatment at that time, the State did not take any further
corrective action regarding her drug use. And Mother completed that inpatient treatment.
But Megan Baker—Mother's SFCS reintegration supervisor—testified that Mother later
continuously thwarted efforts regarding drug treatment. Baker testified that although
efforts were made to have Mother complete substance abuse treatment in 2015 and in-
home family preservation services were twice implemented, Mother continued to test
positive for drug use. As a result of her continued drug use, SFCS's recommended plan
changed from informal supervision to out of home placement.
Melinda O'Hair—SFCS social worker and licensed therapist—first met Mother on
June 27, 2016, not long before the children were removed from Mother's home. O'Hair
had weekly meetings with Mother throughout the summer. During those meetings,
Mother admitted on August 22, 2016, September 13, 2016, and September 15, 2016, to
using methamphetamine and marijuana. Mother also admitted that she had previously
used drugs when the children were present. O'Hair reported Mother's use of drugs in front
of the children to DCF. O'Hair also referred Mother to drug and alcohol counseling. But
the children were removed from Mother's home on September 15, 2016, and as a result,
O'Hair no longer worked with Mother. Instead, reintegration services took over her
responsibilities.
Although the State presented evidence that Mother completed several drug and
alcohol assessments, Baker testified that Mother refused one assessment because she felt
the woman conducting the assessment asked too personal of questions. Mother refused to
complete another evaluation until it was court ordered. Baker also testified that the case
plan task regarding drug and alcohol use was not completed because Mother did not
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follow the recommendations of her partially completed evaluations. In this regard,
Mother also continued to use drugs and failed to provide evidence that she attended and
completed any outpatient treatment—including the level 1 outpatient treatment
recommended after an assessment in February 2017. Mother was also unsuccessfully
discharged from a drug and alcohol program. And although Mother promised in a district
court hearing that she would go to a women's recovery center in Wichita, she did not.
Mother failed to go to the Wichita center even after SFCS put fuel in her vehicle for that
purpose. And although Baker testified that Mother apparently attended some "therapeutic
counseling, . . . due to some events that took place, she needed to go to a different
location[,]" the record does not show that Mother was somehow prohibited from
attending at a different location or that that "therapeutic counseling" was sufficient to
satisfy the requirements of this case plan task.
As evidenced by Baker's records and account of events, Mother failed to complete
treatment for the drug and alcohol recommendations she received.
2. Mental Health Assessment and Completion of Recommendations
Next, Mother was required to complete a mental health intake appointment with
an approved provider and follow all recommendations. She was also required to sign a
release for SFCS to obtain a copy of the treatment plan.
Mother maintains that she completed this task. Mother asserts that she attended
therapy on October 10, 2017, November 7, 2017, and January 10, 2018. According to
Mother, her therapist set a target date of December 15, 2017, to complete this goal.
Mother thus argues that because she attended therapy on these dates, she completed this
case plan task. But the therapy target date is not supported by the record and is not
dispositive of the issue of whether Mother fully completed this case plan task. Mother
also notes that Baker admitted she had not spoken with Mother's therapist. Yet this fact is
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immaterial because it does not negate the evidence against Mother with regard to this
task.
The record shows that Mother completed a mental health intake assessment and
signed a release to of the treatment plan to SFCS. But Baker testified that Mother did not
attend mental health services as recommended. Thus Mother failed to complete this task.
Baker specified that although Mother began therapy, she stopped going. And because
Mother had not attended scheduled visits with her therapist, she had seemingly not been
successfully released from the therapy services. So although Baker conceded that she had
not spoken to Mother's therapist directly, Mother's failure to attend scheduled therapy
visits in conjunction with her release from services indicated that she was not released
because the services were successfully completed.
The record shows that Mother attended individual therapy sessions on October 10,
2017, and November 7, 2017. But the record does not show that Mother attended a
therapy session on January 10, 2018, as she claims. Instead, January 10, 2018, is listed as
the date the treatment plan was made. That treatment plan then lists December 15, 2017,
as the target date for Mother to "[t]alk through some parenting issues." While December
15, 2017, was seemingly a typographical error because it preceded the date the treatment
plan was made, the date does not necessarily indicate that all of the recommendations
stemming from Mother's mental health intake screening were completed. Instead, Baker's
testimony sufficiently established that Mother did not complete the requirements of the
mental health case plan task.
3. Obtaining and Maintaining Suitable Housing
Mother was also required to obtain and maintain housing approved by SFCS with
"appropriate sleeping arrangements, working utilities (i.e. gas, electric, and water), safe
for children under age 3 following the SFCS home health and safety checklist." Although
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it is unclear, Mother seemingly blames SFCS for her failure to complete this task while
also asserting that she completed the task.
The record clearly shows that Mother has never obtained and maintained approved
housing. In this regard, the record shows that Mother jumped from home to home,
sometimes moving into housing unsuitable for children, and may have been without
housing at times.
SFCS was able to compile a list of addresses that Mother either reported or that
SFCS learned about by other means. For roughly six months, Mother had a single address
but was eventually evicted from that home. At times, Mother did not give an address
because she was in jail. Specifically, Mother served one jail term from December 5 to
December 21, 2017. Her second stint of incarceration lasted from June 26, 2017 to
August 17, 2017. On other occasions, Mother either failed or refused to give SFCS an
address. On August 18, 2017, Mother notified SFCS of an address—seemingly without
issue. In February 2018, Mother falsely reported that she was living at a women's
recovery center in Wichita. Later that same month, Mother reported that she was living
with her grandmother in Hugoton. In June 2018, Mother was reportedly living in a small
camper without electricity. An SFCS worker—Elena Gomez—described the camper as a
"truck bed camper" that lacked electricity or utilities. This assessment was admittedly
made without looking inside of the camper. But even without seeing inside the camper,
Gomez testified the camper was not an appropriate living space for three children.
Baker testified that because a walk-through of Mother's housing never occurred,
none of the addresses she reported were approved as being suitable for the children. In
this regard, Baker testified that although she and Mother talked about doing a walk-
through on more than one occasion, a walk-through was never completed. When a walk-
through was attempted, Mother's roommates were not present and did not give verbal
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approval to allow inspection of their rooms. So Baker felt uncomfortable completing the
inspection.
Additionally, Mother reportedly lived in a home with her uncle and father for
several months and would use them as childcare. Mother admitted to using drugs with her
uncle and also reported to Hernandez that her father had sexually abused her when she
was nine years old. Similarly, after Mother was released from the inpatient treatment she
completed after testing positive for drugs when she gave birth to Z.Z., she lived with a
friend who was later accused of physically abusing the children.
This evidence was sufficient to establish that Mother did not complete the suitable
housing case plan task assigned to her.
4. Completion of KBI/CANIS Checks
Mother was required to ensure that anyone who was 10 years old or older and
living with Mother submitted to Kansas Bureau of Investigation (KBI), Child Abuse and
Neglect Information System (CANIS), and other necessary checks, and secure approval
of those people with SFCS. Mother asserts that because she lived alone at the time of her
termination hearing, this requirement was necessarily met.
First, it is unclear whether Mother lived alone at the time of the termination
hearing. Baker testified that Mother referred to the people living in the trailer home next
to her camper as "roommates." Mother did not testify and thus never gave clarity on the
matter. Regardless, Baker testified that this case plan task was never completed.
According to the case plan, it was required that anyone living with Mother who met the
criteria needed to be checked and approved. Nothing in the record suggests that Mother's
father, uncle, grandmother, friends, or any other person identified as having lived with
Mother ever received the necessary approval.
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Also, the State correctly points out that the completion of this goal is likely a non-
issue because Mother never got past supervised visits with the children, so the children
were never allowed interaction with those living with Mother and would not have been
left in their care.
5. Submission to Random Drug Testing
Another case plan task required that Mother submit to random urinalyses (UA's)
and mouth swab tests when requested. If she tested positive, a new drug and alcohol
evaluation was scheduled within seven days. Mother argues that she completed this task
because every time she submitted to a drug test, the task was complete. She also makes a
conclusory assertion that the drug testing results were inadmissible at her termination
hearing. Mother, however, only incidentally raises this issue and fails to support her
argument with any pertinent authority. So it is waived. See Russell v. May, 306 Kan.
1058, 1089, 400 P.3d 647 (2017) (points raised incidentally); In re Adoption of
T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018) (failure to cite supporting authority).
And the record shows that Mother either refused to take or failed the random drug tests
on multiple occasions.
Mother either refused or did not attend scheduled testing 21 different times. On
March 13, 2017, Mother refused to take a UA but admitted to using marijuana. Mother
tested negative for drugs on January 3, 2018, but tested positive for amphetamines and
methamphetamines on October 12, 2016, October 28, 2016, November 8, 2016, and
January 25, 2017. Because negative drug test results were a prerequisite to visitation with
the children, Mother's visitation rights were also inhibited by her drug use. Based on this
evidence, the district court reasonably found that Mother failed to complete this case plan
task.
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6. Maintain Stable Employment
Mother was required to maintain stable employment and provide check stubs
when requested. The record sufficiently establishes that this task was never completed.
Before March 2018, SFCS received no information regarding Mother's
employment. Then on March 22, 2018, Mother told SFCS that she was employed at a
place that paid only cash. In this regard, Baker testified that Mother submitted a single
pay stub and a letter indicating that Mother worked for a place named "Parnell and Sons."
But Mother stopped working there on April 20, 2018. Mother also gave some indication
that she was performing side jobs in June and September 2018 but did not provide
verification.
Mother emphasizes that she did not have a license or a social security card, which
could make it more difficult to find full-time employment. Baker testified that she knew
Mother was working to get a driver's license or a social security card. And although
Baker acknowledged that SFCS did not assist Mother in obtaining those, the only way
SFCS could have aided Mother in that task would be to get her a phone to call to request
these documents. But Mother did not request a phone. So while it is likely true that
Mother had a difficult time finding full-time employment without this documentation, her
ability was not hindered by any failure on the part of SFCS.
7. Refrain from Behaviors that Result in Incarceration
The seventh task in Mother's case plan required that Mother refrain from behaviors
that result in incarceration, making her unavailable to care for her children. Mother
argues that this task was completed each day she was not incarcerated and notes that she
has not been incarcerated for over a year. While Mother's assertion is accurate, the record
shows that Mother was jailed on three different occasions during the pendency of this
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case. Specifically, Mother spent time incarcerated on May 4, 2017, June 26, 2017 to
August 17, 2017, and December 5 through December 21, 2017. The district court did not
err in considering Mother's incarceration in determining that she did not comply with the
case plan.
8. Complete an Approved Parenting Class
Mother was required to attend an approved parenting class with a minimum of six
hours and provide SFCS with a copy of the certificate. Mother argues that she completed
this task because she attended more than six hours of parenting classes and provided
proof to SFCS. Specifically, Mother asserts that she completed five hours of a parenting
class with SFCS and three and one-half hours of parenting classes with another provider.
But the State still presented evidence that Mother did not complete this task as specified
in her plan.
Baker testified that Mother attended several parenting classes but not the full six
hours required under the plan. Baker also testified that Mother did not complete a
parenting class provided by SFCS and did not complete the class she attended and thus
did not earn a certificate of completion. Baker explained that the classes provided by
another agency were not an approved means of completing this task and that the hours do
not accrue. Instead, Mother was required to complete a six-hour class and receive the
certificate of completion for that class. Because she did not, she did not complete this
task.
9. Inform SFCS of Changes and Progress
Mother was also required to contact SFCS biweekly to inform them of any
changes in her contact information and to report her progress. Baker testified that because
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SFCS did not know where Mother was on several occasions, she did not complete this
task.
10. Notify SFCS of Changes in Contact Information
Mother was tasked with notifying SFCS of any changes to her contact
information, address, or employment within 48 hours. As evidenced by the testimony
regarding an inability to contact Mother or determine where she lived, it appears that
Mother did not comply with this task. And although Baker testified that this is an ongoing
task, she also explained that Mother sometimes failed to comply with this requirement.
11. Attend Scheduled Meetings
Mother was required to attend all scheduled meeting with SFCS, courts, attorneys,
schools, and others. Mother asserts that she completed this task because she attended
"every court hearing since the beginning of th[is] case" and because she attended multiple
SFCS meetings. But the record shows that Mother missed more than 19 scheduled
meetings with SFCS, one being her initial case planning conference. Mother also failed to
appear at the final day of the termination proceedings and thus lost the opportunity to
testify. Because she missed multiple appointments, Mother did not complete this task.
12. Have an Approved Plan for Child Supervision
Mother was required to have an approved plan for supervision of her children
while she was away from them. This plan included the requirement of KBI/CANIS
checks and any other check necessary for those who have lived outside of Kansas within
the last year for anyone in Mother's household. This task was not completed because
Mother never got past supervised visitation, so this task was never worked on. In this
regard, Baker testified that Mother could be "very erratic at times" and that supervision
was required to ensure the children's safety. So although it would be somewhat premature
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to find that Mother did not complete this task, such a finding is immaterial as it has
already been established that Mother failed to carry out a reasonable case plan by failing
to complete or substantially comply with the majority of the tasks in her case plan.
Remaining Visitation Concern
As a final point, Mother asserts that SFCS suspended visits with her children on
September 11, 2017. Although Mother raises this claim, she simply lists facts and does
not make any legal argument. So it is unclear what recourse Mother requests with regard
to this issue.
Still, SFCS was not at fault for Mother's failure to progress from supervised visits
to unsupervised visits and, ultimately, to reunification with her children. Gomez testified
regarding Mother's supervised visits. She testified that she began supervising visits in
February 2017. During that time, Mother failed to confirm five visits. She failed to show
up to one visit and showed up too late for another visitation. Mother failed to take a UA
before 11 visits, so visitation was not allowed. Three visits were cancelled because
Mother was in jail. On September 18, 2017, E.O. was not transported to the visit with
Mother because the driver who was supposed to transport E.O. to the visit refused to do
so—the driver was concerned for the other children's safety in the vehicle because of
E.O.'s screaming, crying, and other physical behavior. Visits were canceled from
February to March 2018, but Gomez was unable to say why.
Again, Baker testified that Mother could be "very erratic at times" and that
supervision during visits was required to ensure the children's safety. Mother's erratic
behavior caused her daughters to become upset—"crying hysterically in the vehicle and
not comfortable." One such instance occurred during a supervised visit in a park on
September 11, 2017. There, two of the children became upset, telling the SFCS workers
that they needed to call the cops on them because they took them away from their
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Mother. The workers, assuming Mother told the children they needed to call the police,
told Mother it was inappropriate to tell the children that. But Mother also became upset,
demanding that the children be present while talking about the case. This event resulted
in a recommendation to temporarily suspend visits.
Baker testified that on September 19, 2017, SFCS received a recommendation by
their therapist to stop visitation between Mother and N.O. and E.O. But visits were
allowed to resume on January 25, 2018. In August 2018, N.O. told her therapist that she
no longer wanted to attend visits with Mother. And by the date of the second termination
hearing, Mother had not had a visit with her children since August 15, 2018.
The State's evidence shows that Mother's inability to progress from supervised
visitation to unsurprised was her own fault and not the result of SFCS's actions, as
suggested in Mother's brief. A district court may terminate a parent's rights to his or her
child if clear and convincing evidence shows the "failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family." K.S.A. 2019 Supp. 38-
2269(b)(7). The magistrate court's holding that reasonable efforts failed was supported by
sufficient evidence.
Likewise, the district court's ultimate decision was supported by clear and
convincing evidence. The record shows that Mother failed to carry out a reasonable plan
approved by the court directed at reintegration of the children into Mother's home. See
K.S.A. 2019 Supp. 38-2269(c)(3). The minimal progress of Mother's reintegration also
supports the district court's decision that Mother's conduct was unlikely to change in the
foreseeable future. Notably, Mother even failed to appear on the last day of the
termination hearings, further supporting the notion that she is not amenable to change.
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Best interests of the children
Having found unfitness, a district court must then determine whether termination
of parental rights is in the "best interests of the child." See K.S.A. 2019 Supp. 38-
2269(g)(1). In making a best interests finding, the district court "shall give 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 this decision based on a preponderance of
the evidence. And the decision rests in the sound discretion of the district court. See In re
R.S., 50 Kan. App. 2d at 1115-16. So we review those decisions for an abuse of
discretion. A district court exceeds that broad latitude if it rules in a way no reasonable
judicial officer would under the circumstances, if it ignores controlling facts or relies on
unproven factual representations, or if it acts outside the legal framework appropriate to
the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906,
935, 296 P.3d 1106 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).
Mother makes a conclusory argument that the district court's decision regarding
the children's best interest was based on zero evidence, without providing this court with
any factual basis to support her claim. Issues not adequately briefed are deemed waived
or abandoned. In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018).
Likewise, a point raised incidentally in a brief and not argued therein is also deemed
abandoned. May, 306 Kan. at 1089. Accordingly, Mother fails to show how the district
court abused its discretion in making the best interests finding. Additionally, Mother's
argument is contrary to the evidence presented at the termination hearings.
The record supports the district court's best interest finding. By the time of the
termination hearings, the children had been in an out-of-home placement for over two
years. After being placed with their foster family—whom the children spent the majority
of those two years with—the children's grades and school attendance improved. The
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district court agreed with Baker's testimony that "[t]he girls need permanency to be able
to . . . know where they're going to be in their future and feel settled." We find no abuse
of discretion in that finding, or in the district court's conclusion that termination was in
the best interest of the children.
The district court did not err in terminating Mother's parental rights. Any single
factor could have established the grounds for terminating Mother's parental rights. See
K.S.A. 2019 Supp. 38-2269(f). After viewing the evidence in the light most favorable to
the State, we are persuaded clear and convincing evidence supports the decision to
terminate Mother's parental rights.
Affirmed.
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