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Nos. 103,442 103,443 103,444 IN THE COURT OF APPEALS OF THE STATE OF KANSAS IN THE INTEREST OF: K.R., T.H., AND E.R., MINOR CHILDREN UNDER 18 YEARS OF AGE. SYLLABUS BY THE COURT 1. The presumptions set forth in K.S.A. 2009 Supp. 38-2271 must be applied in a manner that comports with procedural due process.

2. Employment of a presumption set forth in K.S.A. 2009 Supp. 38-2271 without adequate notice to a parent that it will be asserted against that parent in a termination of parental rights proceeding is a violation of procedural due process. The better practice is for the district court to conduct a pretrial conference and file a final pretrial order that clearly and unequivocally provides notice that a statutory presumption will be asserted against the parent.

3. In termination of parental rights proceedings, the failure to consider K.S.A. 60-414 prior to applying the presumption of unfitness is a constitutional violation. Prior to application of such a presumption, the trial court must first determine whether subsection (a) or (b) of K.S.A. 60-414 is applicable. If it is determined that subsection (b) applies, any evidence which would support a finding of fitness, including the uncorroborated testimony of a parent, will result in the disappearance of the presumption of unfitness, and the burden of proving unfitness will once again be upon the State. 1

4. K.S.A. 2009 Supp. 38-2269(a) requires for termination of parental rights that a parent's unfitness is unlikely to change in the foreseeable future; a finding that a parent failed to carry out a reasonable plan towards reintegration "and the opportunity to do so is not foreseeable" does not satisfy the statutory requirement.

5. The better practice dictates that the district court expressly reflect that all statutory findings were made and that the proper standard of proof was employed in making these findings.

6. When the court applies one of the presumptions of unfitness under K.S.A. 2009 Supp. 38-2271, this alone does not warrant termination of parental rights. The statute is clear that when a presumption is asserted and the parent does not adequately rebut the presumption, "the court shall terminate parental rights in proceedings pursuant to K.S.A. 2009 Supp. 38-2266 et seq., and amendments thereto." Thus, the requirements of K.S.A. 2009 Supp. 38-2269 must also be satisfied.

7. K.S.A. 2009 Supp. 38-2269(g)(1) requires the court to consider whether termination of parental rights is in the best interests of the subject children. This statutory requirement requires the court to 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. In making such a determination, the court must consider the nature and strength of the relationships between the children and parent and the emotional trauma that may be caused to the children by termination of the parental rights, weighing these considerations against a further delay in permanency for the children. 2

8. Under the fact of this case, the district court proceedings were flawed by the assertion of a statutory presumption with little notice to the mother, by the failure of the court to make a K.S.A. 60-414(a) or (b) determination before applying the presumption, and by the failure of the district court to consider the best interests of the children under K.S.A. 2009 Supp. 38-2269(g)(1). Additionally, the State failed to establish by clear and convincing evidence that any unfitness of the mother was unlikely to change in the foreseeable future as required by both K.S.A. 2009 Supp. 38-2269(a) and K.S.A. 2009 Supp. 38-2271(b).

Appeal from Seward District Court; KIM R. SCHROEDER, judge. Opinion filed June 11, 2010. Reversed.

Grant C. Shellenberger and Peter J. Knowles, legal intern, of Liberal, for appellant mother.

Maria Kaminska, assistant county attorney, for appellee.

Before RULON, C.J., MARQUARDT and GREENE, JJ.

GREENE, J.: The mother of three minor children appeals the district court's termination of her parental rights. She argues the court erred in its application of a presumption of unfitness under K.S.A. 2009 Supp. 38-2271(a)(5), and she challenges the sufficiency of the evidence to support the court's findings. We agree with her and reverse the judgment terminating her parental rights.

FACTUAL AND PROCEDURAL BACKGROUND Mother's three children, ages 8, 13, and 16, were removed from her home in February 2008 based on truancy of the children and homelessness issues faced by mother. Until her parental rights were terminated by the district court in September 2009, mother 3

had a mixed history of some compliance and some neglect of the conditions imposed for reintegration of her family. Compliance was undoubtedly affected by mother's diagnosed bipolar disorder. Among the conditions imposed on mother for reintegration of the children with mother were maintaining employment, maintaining stable housing, submitting to UA's, taking medications as prescribed, attending individual and family therapy sessions, and otherwise cooperating with community services' personnel assigned to her case.

Social worker and mother's case manager Jenny Sutton testified that "things were looking pretty good" for reintegration as of November or December 2008. Mother lost her job in December, however, and the situation began to erode. On one occasion on New Year's Eve, mother left the children with the 16-year-old son and other adults and "left the house"; it was disputed whether she went "to the bars" or elsewhere, and mother testified her absence was no more than 45 minutes. By spring 2009, the case manager came to believe that reintegration of the children was no longer viable. She cited noncompliance with the conditions of reintegration, stating that mother had "not made progress" and "it had been a year and the court was making a decision" about reintegration.

The final case management report filed by social worker Angela Hernandez indicated that as of July 2, 2009, mother was employed, had housing in Plains, had her back-rent worked out, had no alleged drug use, had found free medications for a year and was taking them as prescribed, but had not attended therapy sessions because no therapist had been assigned. When this social worker was asked if there were setbacks or other negatives beyond these positive aspects of mother's progress, she stated, "I'm unable to say that."

Leslie Bissell, the clinical director of Southwest Guidance Center and the primary therapist for mother, testified as follows: 4

"Q: . . . [H]ave we just given up on her completely and saying, she'll never be a good mom? "A: I believe that [mother] has it within her to become a good parent. Is she able to do that at this moment in time, based upon when I saw her earlier in September [2009], I don't believe she's at that point now. "Q: Okay. Do you think she could get there with your help? "A: In time, yes. "Q: Any idea how much time? "A: If [mother] was to continue with therapy and she was compliant with all the recommendations, I would be a lot more comfortable with it in six months."

The relationship between mother and children does not appear to have deteriorated in any way. Sutton testified that the visitations "have gone well." The therapist testified that mother "wants to be with her children and she wants the best for her children," and on cross-examination, the therapist stated that mother would not intentionally cause physical harm or emotional abuse to the children.

In June 2009, the State filed a motion to terminate mother's parental rights. The district court conducted an evidentiary hearing in which the testimony referenced above was provided to the court. At the close of evidence, the guardian ad litem opposed the termination of mother's parental rights, stating in material part:

"Well, your honor, [as] the guardian ad litem, I'm supposed to look out for the children's legal rights and also make recommendations to the Court in the children's best interests. I've talked to the children today. I've been here at these proceedings and asked questions and listened to testimony. And my recommendations are that the children be put back in the home immediately. That SRS can continue supervision and even have custody, but make it a placement in the home. She has a home. It's not an ideal home, but I mean it is a home and that she and the children want to be able to enjoy together. She has an educational plan for the children that is eminently more workable than what we've got now. . . .

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"She may not have the best type of job in the world, but she is making an effort and she still wants to better herself to get education. . . . .... "But the main thing is, the children want to be with their mama. They miss her. They miss being with her and they want to get back with her." (Emphasis added.)

The district court took the matter under advisement and later issued its journal entry concluding that mother's parental rights should be terminated. Among the findings of fact were these:

"The issue of terminating the natural mother's parental rights is a tough one. She has been attempting to comply with the Orders, but only in an on-again, off-again manner. There is no consistency on her part, whether she is taking her medication or not, whether she chooses to be employed or not. Right now she claims employment as a home caretaker for an individual in Plains, Kansas at the low-income housing apartments she lives at. During the pendency of this action, there have been no severe drug or alcohol issues. Her U.A.s for drugs have been negative, but the evidence reflects she is still consuming alcohol even when the children are with her. .... ". . . [T]he Court makes the specific finding she is unfit to be a parent and not able to care for the ongoing physical, mental, and emotional needs of the child as follows:

a.

Reasonable efforts by SRS and SFA have been expended for the benefit of the natural mother and her minor children and notwithstanding those offers and plans, the opportunity to rehabilitate the natural mother has failed;

b.

There has been a lack of effort, and in some ways no effort, by the natural mother to adjust her parental circumstances, conduct, and conditions to meet the day-today needs of her minor children;

c.

The natural mother, given the fact the minor children have been living out of her home for more than one year, has failed to carry out a reasonable plan approved by the Court directed towards reintegration of the children into her home and the opportunity to do so is not foreseeable.

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d.

The presumption under K.S.A. 2009 Supp. 38-2271(a)(5) applies and the mother has failed to rebut the presumption."

Mother timely appeals. STANDARDS OF REVIEW Before parental rights will be terminated, the State must provide clear and convincing evidence that a parent is unfit because of conduct or condition rendering the parent unable to care properly for a child and that the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2009 Supp. 38-2269(a). The court must also consider whether termination of parental rights is in the best interests of the child. K.S.A. 2009 Supp. 38-2269(g)(1). Clear and convincing evidence is "an intermediate standard of proof between preponderance of the evidence and beyond a reasonable doubt." In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008).

Our standard of review of an order terminating parental rights 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. See In re B.D.-Y., 286 Kan. 686, Syl.

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