In the Interest of P.B., a Minor Child. v. << (2026)

MEMORANDUM OPINION

Per Curiam:

Mother challenges the Sedgwick County District Court's order terminating her right to parent P.B., her daughter who was then just over a year old. Despite some procedural wrinkles in the district court proceedings, we find the State admitted sufficient evidence to warrant termination and Mother has shown no reversible error. We, therefore, affirm the district court.

We first outline the procedural circumstances attendant to the termination hearing in October 2024. Although duly notified of the hearing, Mother did not appear personally. Her appointed lawyer did. The lawyer informed the district court that Mother had not instructed her to object to the State's use of a proffer in presenting the case for termination. Under K.S.A. 38-2248(f), a party “may proceed by proffer” as to an absent parent in any evidentiary hearing to terminate their rights unless the no-show parent objects through their lawyer.

Relying on that statute, the State proffered the motion to terminate Mother's parental rights in support of its request for termination. In addition, the State presented five reports prepared by employees of the social service agency the Department for Children and Families (DCF) had designated to develop and implement a plan for family reunification. Four of the reports outlined P.B.’s status with her foster placement and Mother's progress in meeting the objectives in the reunification plan. The fifth report recounts the supervised visits Mother had with P.B. leading up to the termination hearing.

At the hearing, the district court specifically asked the assistant district attorney if he meant to “offer” the reports as evidentiary exhibits and to “proffer” the termination motion. He answered affirmatively. The district court then asked the guardian ad litem for P.B. and Mother's lawyer if they had “any objections.” Each of them said, “No.” The State called no witnesses at the termination hearing. Neither the guardian ad litem nor Mother (through her lawyer) presented any evidence. The full hearing transcript is about 10 pages.

Based on those materials, the district court entered an order in early November 2024 finding Mother to be unfit under K.S.A. 38-2269(b)(7), (b)(8), (c)(2), and (c)(3); that her unfitness was unlikely to change in the foreseeable future; and that P.B.’s best interests supported termination. We discuss the legal and evidentiary support for those findings later.

At the time of the termination hearing, the parties and the district court did not have the benefit of the Kansas Supreme Court's decision in In re A.K., 320 Kan. 805, 572 P.3d 763 (2025), construing how K.S.A. 38-2248(f) should be applied when a parent appears only through their lawyer at a termination hearing. The narrow holding in In re A.K. recognizes that the party moving for termination (typically the State) cannot rely on “the proffer alone” to sever a parent's rights, notwithstanding the language of K.S.A. 38-2248(f). 320 Kan. 805, Syl. ¶ 7, 815. The court repeatedly states that a proffer is not evidence. And it points out that a district court may terminate parental rights under K.S.A. 38-2269(a) only upon clear and convincing evidence of unfitness that is unlikely to change in the foreseeable future. But the court observes that “while K.S.A. 38-2248(f) permits a party to submit a proffer of some of its evidence, it will need to present more to establish unfitness.” 320 Kan. at 815. It then cites a California case for the proposition that a party may rely on a proffer to establish clear and convincing evidence by “demonstrat[ing] the proffer's reliability through other means.” 320 Kan. at 815.

Just how we ought to apply In re A.K. here is less than clear. May a proffer, such as the motion to terminate in this case, be considered if it is partially corroborated by admitted evidence, such as the agency progress reports? If so, how much corroboration is required—may a proffer be considered in its entirety when only some parts of it are otherwise corroborated? Even a fully corroborated proffer isn't evidence, and it would be redundant of the corroborating evidence and, thus, superfluous. We avoid those sticky wickets by considering only the reports the district court admitted into evidence without objection at the termination hearing. In turn, we put aside the proffered motion to terminate and files the district court took judicial notice of at the hearing.

On appeal, Mother contends the reports should not have been considered at the termination hearing and cannot be reviewed on appeal because the district court never formally admitted them as evidence. Although the district court never expressly said State's exhibits 1 through 5 “are admitted” or similar words, we see Mother's argument to be a matter of form over substance. That seems especially true in an evidentiary hearing where the district court acts as the factfinder. Here, the district court clearly established on the record that the reports were being offered as exhibits and that Mother had no objection to them as such. The absence of an incantation then admitting them does not preclude their consideration. Moreover, later in the hearing, the district court stated it intended to rule “[b]ased on everything before me today.” Again, Mother voiced no objection to the district court doing so.

Having navigated the peculiar procedural landscape of this case, we turn to Mother's challenge to the sufficiency of the evidence supporting the district court's termination order. We first outline general legal principles governing the termination of parental rights. We then describe the evidence before the district court and apply those principles to the evidence. Mother expressly disputes the sufficiency of the evidence supporting her unfitness and that P.B.’s best interests were furthered by terminating the parent-child relationship. Mother does not make a distinct argument challenging the finding that her unfitness was unlikely to change in the near term.

A person has a constitutionally recognized right to a parental relationship with their child. See Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008) (citing Santosky, 455 U.S. 745). The right is a protected liberty interest. 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”). Accordingly, the State may extinguish the legal bond between a parent and child only upon clear and convincing proof of parental unfitness. K.S.A. 38-2269(a); Santosky, 455 U.S. at 769-70; In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014). The Legislature has enacted the Revised Kansas Code for Care of Children to establish processes for identifying children in need of care, for fostering family reunification, and for terminating parental rights if those efforts fail. K.S.A. 38-2201 et seq.

After a child has been adjudicated in need of care, a 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. 38-2269(a). In considering a parent's unfitness, the district court may apply the grounds outlined in K.S.A. 38-2269(b) and, when the child has been removed from the home for an extended time, the additional factors in K.S.A. 38-2269(c). In this case, the district court drew from both of those sources to find Mother unfit. A single factor may be sufficient to establish unfitness. See K.S.A. 38-2269(f).

In gauging the likelihood of change in the foreseeable future under K.S.A. 38-2269(a), the courts should use “child time” as the measure. As the Code recognizes, children experience the passage of time in a way that makes a month or a year seem considerably longer than it would for an adult, and that difference in perception typically tilts toward a prompt, permanent disposition. K.S.A. 38-2201(b)(4); In re M.S., 56 Kan. App. 2d 1247, 1263-64, 447 P.3d 994 (2019); In re G.A.Y., No. 109,605, 2013 WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion) (“ ‘child time’ ” differs from “ ‘adult time’ ” in termination of parental rights proceedings “in the sense that a year ․ reflects a much longer portion of a minor's life than an adult's”).

When the sufficiency of the evidence supporting a decision to terminate parental rights is challenged, an appellate court will uphold the decision if, after reviewing the record evidence in a light most favorable to the State as the prevailing party, the district court's findings on unfitness and foreseeability of change are supported by clear and convincing evidence. Stated another way, the appellate court must be persuaded that a rational factfinder could have found it highly probable that the circumstances warrant the termination of parental rights. In re B.D.-Y., 286 Kan. at 697, 705. In evaluating the record, the appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine factual questions. In re Adoption of B.B.M., 290 Kan. 236, 244, 224 P.3d 1168 (2010); In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014).

The district court's best interests finding is governed by a less stringent standard. As directed in K.S.A. 38-2269(g)(1), the district court should give “primary consideration to the physical, mental[,] and emotional health of the child” in making a best interests finding. A district court decides best interests based on a preponderance of the evidence. See In re R.S., 50 Kan. App. 2d at 1115-16. The decision essentially rests in the district court's sound judicial discretion. 50 Kan. App. 2d at 1116. An appellate court reviews those sorts of conclusions for abuse of that 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); In re M.S., 56 Kan. App. 2d at 1264.

We turn to the factual record established through the exhibits the State presented at the termination hearing. As we indicated, four of them are reports on P.B.’s status and Mother's progress on the agency's reunification plan. Those reports were compiled periodically over the course of the case, the last being completed several weeks before the termination hearing. As such, the reports include some repetitive information.

On appeal, Mother complains that the reports lack indicia of reliability in that they have not been sworn to and they contain hearsay. While that is true, Mother did not lodge a contemporaneous objection to the reports in the district court and cannot now complain about the information in them. See K.S.A. 60-404 (contemporaneous objection required to preserve challenge that evidence improperly admitted); K.S.A. 38-2249(a) (rules of evidence applicable to proceedings under Code); In re K.R., No. 125,054, 2022 WL 4588399, at *3 (Kan. App. 2022) (unpublished opinion) (applying contemporaneous objection rule); In re K.L., No. 124,873, 2022 WL 4391222, at *7 (Kan. App. 2022) (unpublished opinion) (applying contemporaneous objection rule).

The four status reports show that P.B. was born at a Wichita area hospital in September 2023 and had methamphetamine in her system. Mother tested positive for methamphetamine. A hospital social worker reported those circumstances, and authorities took P.B. into protective custody before she was released from the hospital. The district court entered an order placing P.B. in DCF custody and later adjudicated P.B. to be a child in need of care.

Based on the reports, P.B. appeared to be hitting appropriate developmental milestones in her out-of-home foster placement.

The reports show that Mother had completed none of the tasks in the reintegration plan. She had not successfully participated in appropriate drug counseling. She either missed or failed drug tests over the course of the proceedings. Mother claimed to have employment but never confirmed as much by producing pay stubs or other corroborating evidence. Likewise, Mother never established that she had secured suitable housing by presenting a lease or other documentation to the social service agency. The reports show that Mother repeatedly declined to interact with agency representatives and would not sign releases for information.

The visitation report, the State's fifth exhibit at the termination hearing, showed that Mother intermittently participated in hour-long supervised visits with P.B. but missed many scheduled visits. The supervising caseworker reported that the visits themselves typically went well. But Mother otherwise had very limited contact with P.B. from the time of her birth.

The district court found Mother unfit based on the failure of the social service agency's reasonable efforts to rehabilitate the family, as set out in K.S.A. 38-2269(b)(7), and her lack of effort to adjust her circumstances and conduct to meet P.B.’s needs, as set out in K.S.A. 38-2269(b)(8). In addition, the district court found Mother unfit based on two grounds in K.S.A. 38-2269(c). We do not consider those findings. Unfitness under K.S.A. 38-2269(c) comes into play only after a child has been in an out-of-home placement for 15 of the immediately preceding 22 months, measured from 60 days after the child's removal from the home. K.S.A. 38-2269(b)(9). At a minimum, the timing requires that the child in need of care proceedings have been pending for 2 years—22 months plus the initial 60 days after the removal of the child. This case was filed in September 2023, and the termination hearing was held in mid-October 2024, a period of just over 12 months. So the district court erred in relying on unfitness grounds in K.S.A. 38-2269(c). The error is, however, harmless because we have concluded adequate evidence supported the two grounds of unfitness the district court found under K.S.A. 38-2269(b).

In summary, the evidence showed that Mother declined meaningful interaction with the social service agency, apart from attending the supervised visits with P.B. Mother undertook none of the tasks in the family rehabilitation plan. She appeared to continue using methamphetamine throughout the case. And she could not verify suitable employment or housing. Those are fundamental components of a reasonable family reunification plan. See In re A.M., No. 129,527, 2026 WL 912737, at *4 (Kan. App. 2026) (unpublished opinion). That's enough to support the findings of unfitness.

Likewise, nothing in the evidence suggests the conditions would improve in the foreseeable future. Mother had done nothing to fulfill the tasks in the reintegration plan over the course of a year. And Mother continued to evade drug testing or tested positive for illegal drugs when she complied. So Mother demonstrated no period of sobriety leading up to the termination hearing. See In re L.D., No. 119,613, 2019 WL 257979, at *4 (Kan. App. 2019) (unpublished opinion) (“[T]he successful completion of an inpatient program is not the same as successfully beating an addiction to drugs or alcohol. The real test, in the context of these cases, lies in the parent's ability to avoid relapsing after treatment.”). The unlikelihood of change in the foreseeable future seems especially true measured in child time for P.B., who was just over a year old. Finally, the district court did not abuse its discretion in finding P.B.’s best interests would be served by terminating Mother's parental rights, given the limited contact between the two from the time of P.B.’s birth through the termination hearing. P.B. was doing well in foster placement and would benefit from permanency at her young age.

Affirmed.