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IN THE COURT OF APPEALS OF THE STATE OF KANSAS No. 103,602 In the Interest of K.P. SYLLABUS BY THE COURT

1. Our standard of review of a finding of parental unfitness is to determine 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, that is by clear and convincing evidence.

2. In determining legislative intent, we consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into a workable harmony if possible.

3.

When the district court has made a finding of parental unfitness, whether by the evidence or by a presumption under K.S.A. 2009 Supp. 38-2271, the court must proceed under the entire statutory scheme provided by K.S.A. 2009 Supp. 38-2266 et seq. This includes the need for a determination whether termination of parental rights is in the best interests of the child under K.S.A. 2009 Supp. 38-2269(g)(1), and the court may also consider whether a permanent custodian would be more suitable than termination of parental rights under K.S.A. 2009 Supp. 38-2269(g)(3).

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4. The district court is in the best position to make findings on the best interests of the child, and its judgment will not be disturbed in the absence of an abuse of judicial discretion.

Appeal from Rooks District Court; THOMAS L. TOEPFER, judge. Opinion filed July 30, 2010. Affirmed.

Nancy Ogle, of Ogle Law Office, LLC, of Wichita, for appellant/cross-appellee mother.

Edward C. Hageman, county attorney, for appellee/cross-appellant.

Mark A. Blehm, of Russell, guardian ad litem.

Before GREENE, P.J., MARQUARDT, J., and BRAZIL, S.J.

GREENE, J.: Mother of K.P., a 5-year-old minor child at the time of the proceedings below, appeals the district court's finding of her unfitness as a parent and the order to appoint a permanent custodian for the child, challenging the sufficiency of the evidence to support the finding of unfitness. The State cross-appeals the order to appoint a permanent custodian, arguing that mother's parental rights should have been terminated. We affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND Mother cared for K.P. as a single parent until October 2008, when K.P. was referred to foster care because mother was arrested for possession of marijuana and three misdemeanor counts including child endangerment. Upon mother's release from jail, K.P. was returned to her and the Kansas Department of Social and Rehabilitation Services (SRS) prepared a permanency plan for mother. 2

In mid-December 2008, however, a petition to have K.P. declared a child in need of care was filed by the State after mother was in a domestic dispute with her boyfriend, leading to domestic battery charges against mother. K.P. then went to live with her uncle and aunt, where she has resided at all times thereafter.

The State filed its petition to terminate mother's parental rights in the summer of 2009, after mother tested positive for alcohol and was taken into custody for a probation violation. She had previously been adjudicated as an unfit parent and had her parental rights terminated to an older son. At the hearing on this motion, mother testified to the mitigating circumstances surrounding the prior adjudication and then demonstrated that she had complied with some of her case plan objectives for reintegration with K.P., felt that she had gotten control of her life, and had been sober for 6 months. A family support worker testified that mother was doing a much better job of handling K.P. since her inpatient drug/alcohol treatment and that mother loves K.P. very much.

The district court made extensive findings of fact and then concluded that mother was unfit based on K.S.A. 2009 Supp. 38-2269(b)(1), (b)(3), (b)(5), (b)(7), (b)(8), (b)(9), and (c)(3). Considering the best interests of K.P., however, the court declined to terminate mother's parental rights and instead concluded that appointment of a permanent custodian for K.P. was in her best interests.

Mother appeals the finding of unfitness, and the State cross-appeals the court's refusal to terminate mother's parental rights.

STANDARDS OF REVIEW Our standard of review of a finding of parental unfitness is to determine 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 3

probable, that is, by clear and convincing evidence. See In re B.D.-Y., 286 Kan. 686, Syl.

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