In re J.W.

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NOT DESIGNATED FOR PUBLICATION

No. 112,668

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of J.W. (D.O.B. XX/XX/2003),
J.W. (D.O.B. XX/XX/2005),
K.W. (D.O.B. XX/XX/1997),
D.W. (D.O.B. XX/XX/2006), and
L.W. (D.O.B. XX/XX/2008).


MEMORANDUM OPINION

Appeal from Johnson District Court; KATHLEEN SLOAN, judge. Opinion filed December 11,
2015. Reversed and remanded with directions.

Dennis J. Stanchik, of Olathe, for appellant natural mother.

Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.

Before GREEN, P.J., HILL, J., and TIMOTHY G. LAHEY, District Judge, assigned.

Per Curiam: The district court terminated the parental rights of R.E. (Mother) and
J.W. (Father), and Mother appeals. Mother contends the court erred in finding clear and
convincing evidence she was unfit pursuant to K.S.A. 2014 Supp. 38-2269(b)(4), (b)(7)
and (b)(8) and erred by concluding that it was in the children's best interests to terminate
her parental rights to her five children. We agree and reverse the termination of parental
rights, affirm the child in need of care (CINC) finding, and remand the case for a
dispositional hearing.



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FACTUAL AND PROCEDURAL OVERVIEW

The CINC petition in this case was filed because of an allegation by Mother's
daughter, K.W. (DOB: 1997), that she had been sexually abused by Mother's live-in
boyfriend. Mother did not believe the allegation. Although the district court did not find
KW had been sexually abused, it determined that K.W. had been emotionally neglected
because Mother did not believe and support her daughter's allegation of abuse. The four
younger children J.W. (DOB: 2003), J.W. (DOB: 2005), D.W. (DOB: 2006), and L.W.
(DOB: 2008), were adjudicated as children in need of care solely due to the above stated
emotional neglect of K.W. Mother's parental rights to all five children were terminated on
the basis of the evidence presented at the hearing.

The district court's decision was in part based upon Mother's prior CINC
involvement with another daughter, C.M., who was in fact sexually abused by K.W.'s
father, J.W. In that case, Mother did not believe C.M.'s allegations even after J.W. had
been convicted and sent to prison for the abuse. A second CINC was filed in 2009 after
J.W. was sent to prison. The children were adjudicated and were in the State's custody for
approximately 2 months and the case ultimately dismissed.

We begin with a review of the prior CINC cases followed by our analysis of the
current case.

CINC family history

2006 CINC proceeding

In its ruling, the district court noted that Mother and Father were well known to it.
In 2006, the State filed a petition alleging that C.M. (age 15), who was the daughter of
Mother, was a CINC due to sexual abuse at the hands of her stepfather, J.W., who is the
father of the five children in this action. Mother stipulated to the CINC finding and
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stipulated that she did not believe C.M.'s allegations of sexual abuse against J.W. She
believed that he was innocent. In November 2006, C.M. was adjudicated to be a child in
need of care. In December, Mother and C.M.'s natural father were offered separate
reintegration plans. In March 2007, the district court found that minimal progress had
been made and that Mother had not become involved in individual counseling or family
therapy as required by the reintegration plan. In August 2007, the court was advised that
reintegration with the natural father was being pursued and that Mother was not
challenging that placement. The CINC case was closed in 2008 when C.M. was
reintegrated with her natural father. We note that Mother's five children with J.W. were
not part of the CINC proceeding and were not removed from Mother's care during the
2006 CINC proceeding involving C.M.

2009 CINC Proceeding

J.W. was convicted of sexual abuse of C.M. and sentenced to prison sometime in
2008. In December 2008, the Kansas Department of Children and Families (DCF)
received a report expressing concern about Mother's postpartum depression and the
conditions of the home. There was concern that L.W., who was born in 2008 and has
Down syndrome, was not getting enough nutrition. Father had been sentenced to prison,
so Mother was the sole parent in the home for her five children. When social worker Erin
Dewitt spoke with Mother about the concerns, Mother told her that she felt overwhelmed
financially, was depressed, had sleeping issues, and suffered from Sjogren's syndrome,
which is similar to lupus. Based upon Dewitt's concerns of Mother's ability to parent her
five children, a CINC petition was filed. The children were adjudicated children in need
of care on April 15, 2009, and the children were placed in the temporary custody of the
State. Mother was offered a 6-month reintegration plan. Reintegration was successful and
the children were returned to Mother's custody by the end of May 2009. The children
were in the State's custody for less than 2 months. The CINC proceeding was dismissed
in October 2009.
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Current CINC case

January 18, 2013, report

On January 18, 2013, DCF received a report of concern for Mother's children
indicating concern over neglect, the condition of the home, and about Mother's boyfriend,
S.P., living in the home.

DCF social worker Bonnie Brightwell was assigned to investigate a report
regarding physical neglect. The report alleged Mother's house was "kind of in shambles,"
that there was a new boyfriend in the home, that the kids were spending excessive
amounts of time in their room, and they were not being fed dinner. In her investigation,
Brightwell observed the home and found it was suitable though sparsely furnished. There
were no hazardous or health concerns. Mother reported that since S.P. moved in things
were getting tidied up and back in a more functioning order for the family. The children
were interviewed and reported they were not required to stay in their rooms for extended
period of time and said they were being properly fed.

January 29, 2013, report

Before Brightwell concluded her review of the January 13 report, DCF received a
second report involving the family. That report alleged that K.W. had been sexually
abused by S.P.

K.W. was interviewed the next day by DCF social worker Erin Dewitt as part of
an initial safety assessment. During the assessment, K.W denied that S.P had sexually
abused her. She did, however, express that S.P. made her feel uncomfortable. S.P would
tell K.W. to do things to look prettier and that he had talked about her "butt" in the past.
She stated that if she was wearing a shirt that was too revealing, he would "put it up so
that she [was not] revealing anything." She also said she did not have a doorknob on her
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bedroom and on one occasion S.P. had come in her room unannounced and told her to
cover up because her shorts were too revealing.

She reported to Dewitt that she felt her Mother was focusing on her relationship
with S.P. rather than her. She was also angry that S.P. had given her a different room
after he moved into the home.

Following the January 29, 2013, report, Brightwell ran a background check on
S.P. and discovered he was on parole for a 2000 criminal conviction for second-degree
murder and manslaughter in Shawnee County. Brightwell discussed this discovery with
Mother who stated that she was aware of his criminal background. Mother thought S.P.
was great with the kids. Mother dated S.P. for less than 2 months before he moved into
the home in approximately November 2012. At some point in her conversation with
Brightwell, Mother agreed that, in light of K.W.'s allegations, it was in the children's best
interest for S.P. not to provide unsupervised care for the children. This "safety plan" was
to last approximately 6 months.

No further action was taken and DCF determined the allegation of sexual abuse
was unsubstantiated.

July 2013 report

In July 2013, another report concerning Mother's family was assigned to
Brightwell. K.W. alleged that she lied when she was previously interviewed by the police
and DCF and that she actually had been sexually abused by S.P. In her July 29, 2013,
interview with Brightwell and Overland Park Police Detective Casey Shearer, K.W. said
that she did not disclose the sexual abuse previously because she was worried about what
would happen to Mother and the other children. Shearer testified that K.W.
acknowledged that her older sister had been put in foster care when she was younger and
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that K.W. did not have the best relationship with Mother since that time. K.W. also knew
that Mother did not believe her claims of sexual abuse by S.P.

Brightwell testified that K.W.'s allegations involved digital penetration and oral
contact, and K.W. said that she told Mother about the abuse. On August 7, 2013,
Brightwell and Shearer visited Mother to discuss the allegations. Mother initially denied
that K.W. had told her about any abuse but later admitted that she had done so during an
argument. Mother did not believe the accusation and said she and S.P. offered to call the
police, but K.W. did not want them to do so. Over the course of the interview, Mother
also told Brightwell and Shearer that K.W. was "exceedingly promiscuous," was "gross
and disgusting," and was a "liar," and that Mother did not believe any of it. Mother told
Shearer that she believed K.W. was unhappy with her home situation, did not want to be
there, and wanted to do what she wanted to do. She believed that K.W. was making up
the allegations to use as leverage because of the past abuse by J.W.

While Brightwell was speaking to Mother, she observed S.P. providing
unsupervised care to the children in the home contrary to the previously established
safety plan. Mother explained that her relationship with S.P. had progressed and that was
why he was having full contact with the children.

Because of the renewed sexual abuse allegation by K.W., Brightwell requested
that CINC proceedings be initiated. There were no allegations of abuse of the other
children, but due to the police investigation and Brightwell's concern about Mother
allowing S.P. to be alone with the children, Brightwell sought removal of all of the
children from Mother's residence.

K.W. was not living at home when the CINC petition was filed. In June 2013, due
to the conflict at home, Mother arranged for K.W. to live with a friend's family, the
Fitzers. Mother and the Fitzers had an informal guardianship in which K.W. would live
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with the Fitzers who would see to K.W.'s needs, including getting her involved in
counseling.

CINC initiated

On August 29, 2013, the CINC petition was filed and the district court scheduled a
first appearance following the temporary custody determination. The court placed the
children in the temporary custody of DCF.

KVC Behavioral Healthcare (KVC) was the agency placed in charge of the
children's care. Heather Leader was a permanency case manager with KVC and worked
with Mother and the children from August 29, 2013, the date they came into State's
custody, until February 28, 2014. There was an interim case manager for 2 months and
then an adoption case manager, Karra Friedli, worked the case from May 1, 2014, to the
trial date.

The first time Leader met with Mother on September 3, 2013, Mother told her that
she and S.P. were going to get married. S.P. had been living with Mother and the children
for about 10 months at that point. Mother had her first visit with the children on
September 13, 2013. Everything was appropriate at that visit. On September 20, 2013,
Leader met with Mother and S.P. for the first formal case plan. At that meeting, both
Mother and S.P. were given case plan tasks. In the first few weeks after the children came
into care, Leader talked with Mother about S.P. moving out of the home, but Mother
consistently indicated that was not an option at that time.

K.S.A. 2014 Supp. 38-2263(b) provides: "Whenever a child is subject to the
jurisdiction of the court pursuant to the code, an initial permanency plan shall be
developed for the child and submitted to the court within 30 days of the initial order of
the court." Consistent with this requirement, a case planning conference was held on
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September 20, 2013, and Mother was presented with a "Permanency Plan for Child in
Custody" for each child prepared by KVC.

The plan reflected the agency was involved because "DCF received a report of
sexual abuse in the home and the mother's failure to believe and protect." The plan
recognized "[t]he children have a close bond with one another and their mother. The four
younger children have a positive relationship with [S.P.]." The permanency goal was
reintegration in the Mother’s home. Mother and S.P. were each given permanency
objectives as part of the KVC plan.

Mother's case plan tasks were:

(1) Meet with KVC manager once per month to discuss case plan goals;
(2) Sign all necessary releases and complete paperwork in a timely manner;
(3) Maintain consistent and appropriate visits with the children;
(4) Complete a level 3 psychological evaluation and follow all necessary
recommendations;
(5) Provide monthly budget;
(6) Provide proof of employment, transportation, and housing;
(7) Participate in family therapy when deemed appropriate.

The initial appearance was scheduled for October 20, 2013, but was continued for
reasons unrelated to Mother. Mother filed an answer contesting the State's petition and on
December 19, 2013, the State amended its petition to include its request for termination
of Mother's parental rights. No further court proceedings were conducted until the trial in
June 2014.

The evidence at trial revealed Mother consistently visited all of the children
throughout the pendency of this case. She was allowed 1 hour per week of supervised
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visitation. All of the children were present for the visitation. Leader observed most of the
visitations and testified that she witnessed no behavior which caused her to question
mother's ability to parent. Mother met with KVC regularly, maintained employment, had
suitable housing and transportation, and provided a monthly budget to KVC, all as
required by the permanency plan. The psychological examination was scheduled by KVC
and did not occur until February 19, 2013, almost 6 months after the case was filed. The
delay in scheduling and completing the evaluation was not caused or contributed to in
any way by Mother.

On February 3, 2014, Leader met with Mother and S.P. to discuss their case plan
progress. Mother was upset and talked about being overwhelmed and feeling like giving
up because of how much KVC was asking of her. Leader told Mother that S.P. being in
the house was still a big issue. S.P. then said he would move out if he knew the children
would be returned to the home. Mother responded by becoming defensive and saying that
no one could tell her who she could or could not see. According to Leader, Mother
consistently stated that S.P. was part of the family and she did not plan on leaving him.
At that point, Mother had completed all of her case plan tasks other than the therapy
requirement from the yet to be completed psychological evaluation.

During February 2014, Leader told Mother that if S.P. did not move out, she
would not be able to recommend reintegration of the children until everybody went
through counseling. Leader took on other responsibilities and stopped working on the
case on February 28, 2014. At that time, she did not believe reintegration was a viable
option because S.P. was still residing in the home and no therapy services had been
started. Leader stated that whether or not K.W.'s allegation of sexual abuse was true,
Mother failed to provide any emotional support or act as a safety net after she became
aware of the allegation. Leader did not provide any factual detail or examples of Mother's
failures regarding emotional support or acting as a safety net.
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Leader spent more time than any witness with the family and supervised most of
the visits. Although she testified she did not believe reintegration was appropriate
because S.P. lived in the home, when asked if Mother was fit or not fit to parent her
children, Leader said she had no opinion.

The psychological evaluation

Mother's psychological evaluation was conducted on February 19, 2014, and the
report prepared on March 13, 2014. Donald Jones is a master's level psychologist with
KVC who performed evaluation.

In his evaluation, Jones found that Mother has a tendency towards depression and
to be dependent on someone else to handle conflicts within the family. Jones stated that it
concerned him that Mother's relationship with S.P. was very short before he moved in
and took over the role of disciplinarian in the household. He felt that Mother should have
been learning from a therapist how to enrich her own discipline techniques. Mother told
Jones that she saw her relationship with K.W. as deteriorated and conflicted and she
believed K.W. was alleging sexual abuse as a reaction to S.P. being too harsh with his
discipline.

Jones testified that he was concerned that Mother did not look more closely at
K.W.'s allegations against S.P. He stated that if Mother was dependent on S.P., it would
be very concerning that she was not listening to her daughter. He stated that the fact that
there is a history of sexual abuse in the family was a sign of a deeper problem in the
family. As a result of his evaluation of Mother, Jones recommended that Mother seek
individual and family therapy. He testified that completing individual therapy before
family therapy was not essential, but it was recommended.

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Jones testified that he also administered a psychological evaluation to K.W. He
concluded she seemed to have two roles in her household. First, she was a teenager with
normal and, at times, even exaggerated conflicts. Second, she was a caretaker for her
younger siblings. In his testimony, Jones did not provide any detail about the issues for
which K.W. was receiving therapy, and he did not identify any specific actions or failures
on the part of Mother as being the root cause of whatever K.W.'s issues may have been.

The district court determined the children were in need of care, found clear and
convincing evidence that Mother was unfit pursuant to K.S.A. 2014 Supp. 38-2269(a)(4),
(b)(7) and (b)(8), and concluded that her unfitness was unlikely to change in the
foreseeable future. Finally, the district court found it was in the children's best interests to
terminate Mother's rights to her five children.

ANALYSIS

Did the district court properly terminate Mother's parental rights to her children?

Because a parent has a fundamental liberty interest in the relationship with his or
her child, the allegations of conduct that form the basis for termination must be proved by
clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769-70, 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).
In order to terminate parental rights, a district court must find by clear and convincing
evidence that a parent is unfit by reason of conduct or condition which renders the parent
unable to properly care for his or her child, that the conduct or condition is unlikely to
change in the foreseeable future, and that termination of parental rights is in the child's
best interests. K.S.A. 2014 Supp. 38-2269(a), (g)(1). The State bears the burden of proof
in this matter.

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In reviewing a district court's decision terminating parental rights, this court must
consider "whether, after review of all the evidence, viewed in the light most favorable to
the State, it is convinced that a rational factfinder could have found it highly probable,
i.e., by clear and convincing evidence, that [the parent's rights should be terminated.]" In
re B.D.-Y, 286 Kan. at 705. Appellate courts must not reweigh the evidence, pass on the
credibility of witnesses, or redetermine questions or fact. 286 Kan. at 705.

Clear and convincing evidence is "an intermediate standard of proof between
preponderance of the evidence and beyond a reasonable doubt." 286 Kan. at 691. It is
evidence which shows that the truth of the facts asserted is highly probable. This refers to
the quantity rather than the quality of the evidence. 286 Kan. at 697.

Unfitness

K.S.A. 2014 Supp. 38-2269(b) provides a nonexclusive list of factors a district
court must consider when determining whether a parent is unfit. The existence of any one
factor listed in K.S.A. 2014 Supp. 38-2269 standing alone may, but does not necessarily,
establish grounds for termination of parental rights. K.S.A. 2014 Supp. 38-2269(f). Here,
the district court specifically relied on three statutory factors in determining Mother was
unfit to properly care for her children: K.S.A. 2014 Supp. 38-2269(b)(4) (physical,
mental, or emotional abuse or neglect or sexual abuse of a child); K.S.A. 2014 Supp. 38-
22699(b)(7) (failure of reasonable efforts made by appropriate public or private agencies
to rehabilitate the family); and K.S.A. 2014 Supp. 38-2269(b)(8) (lack of effort on the
part of a parent to adjust the parent's circumstances, conduct, or conditions to meet the
needs of a child).

In addition to the foregoing factors, K.S.A. 2014 Supp. 38-2269(c) provides that
when a child is not in the physical custody of the parent, as was the case with K.W. when
the petition was filed, the court shall consider (1) failure to assure care of the child in the
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parental home when able to do so; (2) failure to maintain regular visitation, contact or
communication with the child or with the custodian of the child; (3) failure to carry out a
reasonable plan approved by the district court directed toward the integration of the child
into a parental home; and (4) failure to pay a reasonable portion of the cost of substitute
physical care and maintenance based on ability to pay.

K.S.A. 2014 Supp. 38-2269(b)(4)—physical, mental, or emotional abuse or neglect
or sexual abuse of a child

Mother first argues that the district court erred by finding that she was unfit under
K.S.A. 2014 Supp. 38-2269(b)(4) which requires a district court to consider the
"physical, mental or emotional abuse or neglect or sexual abuse of a child" when making
a determination of unfitness.

Although the case began with allegations of sexual abuse, the district court found
only that mother had emotionally neglected K.W. DCF investigated the allegation of
sexual abuse twice, first in January 2013 and then in July 2013. It is not clear from the
record when DCF concluded its investigation following the July interview with K.W., but
DCF found the allegations were unsubstantiated. The Overland Park Police Department
also investigated the allegations and did some forensic testing based on K.W.'s
allegations. Mother and S.P. fully cooperated with the police department in the
investigation. The investigation concluded and no criminal charges were filed. More
importantly, the trial court, which was provided K.W.'s July interview concerning the
alleged abuse, did not find sexual abuse occurred here. The district court's finding under
K.S.A. 2014 Supp. 38-2269(a)(4) was for emotional neglect:

"The Court finds and concludes that the evidence is clear and convincing that
[K.W.] has been emotionally neglected by her mother. Whether true or not, the fact that
[K.W.] made allegations of sexual abuse is a strong indication that her emotional and
psychological needs were not being met at home. Not only did the social professionals
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agree with this conclusion at trial, the mother also agreed. In her testimony, [Mother]
admitted that she did not believe [K.W.]'s disclosures of sexual abuse by [S.P.] This
Court does not have to find that [K.W.] was, in fact, sexually abused by [S.P.] It was
emotionally neglectful for the mother to accuse her daughter of being a liar and to not
support her daughter when she made these allegations. Although there is undisputed
evidence that [Mother] made arrangements for [K.W.] to live with the family of a school
friend, there is no evidence from which to conclude that [Mother] attempted to maintain
regular contact with her daughter, provide financial support to the family with whom her
daughter lived, or take any actions that might communicate emotional support to her
daughter."

The statutory definitions contained in K.S.A. 2014 Supp. 38-2202 make a
distinction between emotional abuse and emotional neglect. Abuse is the infliction of
emotional harm or the causing of a deterioration of the child. It may include, but is not
limited to, maltreatment or exploitation of a child to the extent the child's emotional well-
being is endangered. K.S.A. 2014 Supp. 38-2202(y). "Neglect" is defined as "acts or
omissions by a parent . . . resulting in harm to a child, or presenting a likelihood of
harm." K.S.A. 2014 Supp. 38-2202(t). "Harm" is defined as "physical or psychological
injury or damage." K.S.A. 2014 Supp. 38-2202(1).

Based on a plain reading of these definitions, a showing of emotional neglect
requires either psychological injury to a child or actions or omissions by the parent which
present a likelihood of psychological injury to the child.

The record must contain clear and convincing evidence of a psychological injury
and the acts or omissions by Mother which caused or were likely to cause injury. Here,
the district court found that K.W.'s emotional and psychological needs were not being
met at home but it did not specify the harm suffered or likely to be suffered.

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Friedli, the adoption case manager who worked on the case for the last 6 weeks
before trial, testified that K.W. felt very sad and felt she lacked an emotional safety net
because Mother did not believe her abuse allegation. Beyond K.W.'s feelings, the record
does not disclose any harm she suffered or was likely to suffer. In order for the court to
find psychological injury or the likelihood of such injury as it relates to a parent's fitness,
there must be something more than sad feelings by an adolescent child. In this case, K.W.
had a psychological evaluation by Jones and she was in counseling. The counselor did
not testify, and Jones' testimony did not identify any psychological diagnosis or the
reason K.W. was seeing a counselor. We observe, for example, she could have been in
counseling to address problems related to peer issues at school or because her father went
to prison. The point being that the record does not identify specific evidence of a
psychological injury or likely injury related to Mother's treatment of her.

Even when psychological injury or likelihood of injury is shown, the evidence
must connect it to some parental action or inaction that implicates the fitness of that
parent. There must be acts or omissions by the parent that result in the psychological
harm. K.S.A. 2014 Supp. 38-2202(t). There was no testimony by any witness which
connected any psychological injury to K.W. to acts or omissions by Mother.

After finding that Mother did not believe her daughter's allegations of sexual
abuse, the court found: "This Court does not have to find that [K.W.] was, in fact,
sexually abused by [S.P.]. It was emotionally neglectful for the mother to accuse her
daughter of being a liar and to not support her daughter when she made these
allegations."

The only place in the record where Mother called K.W. a "liar" was in her
interview with Brightwell and K.W. was not present at the time. The trial record does not
include any evidence of a conversation or argument between Mother and K.W. in which
Mother accused her daughter of being a "liar." The method by which Mother conveyed
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her disbelief of K.W.'s allegations could have been delivered in an emotionally cruel way
which might cause emotional harm to a child. Here, however, the record does not contain
any such evidence. The record here is devoid of specific factual instances which relay the
content of any interaction or detail describing a lack of interaction between K.W. and
Mother regarding the abuse allegation.

The district court also found "[Mother] understood that her disbelief in [K.W.]'s
disclosures of sexual abuse by her mother's live-in boyfriend would have a profoundly
negative effect on her daughter." The reasoning behind this finding is not explained by
the district court and we are unable to identify the evidence in the record which supports
this finding.

Finally, the district court fails to identify how Mother failed to support her
daughter. What did the mother fail to do that a fit parent would do? Did she ignore K.W.,
was she hateful towards her, did she force her to stay in her room, did she say mean
things to her, did she tell her she was not loved, did she fail to tell K.W. she was loved,
did she fail to interact with her? The record does not contain facts in evidence describing
and connecting Mother's action or inaction concerning K.W.

Given the lack of evidentiary interconnection between Mother's actions or
inactions and K.W.'s psychological condition, we are not convinced a rational factfinder
could find clear and convincing evidence that Mother was unfit based upon K.S.A. 2014
Supp. 38-2269(a)(4).

The district court also found the four younger children had been emotionally
neglected by Mother. The only allegations involving the younger children were from
January 2013. DCF investigated that allegation and found it to be unsubstantiated. Again,
we have searched the record and find no evidentiary support for the district court's
conclusion.
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K.S.A. 2014 Supp. 38-2269(b)(7)—failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family

A parent may be found unfit when there is clear and convincing evidence that the
reasonable efforts of appropriate public or private agencies to rehabilitate the family have
failed. Here, KVC was the agency tasked with rehabilitating the family. There was no
district court supervision or oversight of the permanency plan which KVC established in
this case because there was no adjudication or dispositional hearing prior to this trial.

In its ruling, the district court found: "There were numerous efforts to rehabilitate
the family, and those efforts were reasonable albeit unsuccessful." Mother argues that
KVC failed to undertake reasonable efforts to assist her in accomplishing the tasks set
forth in the permanency plan and therefore the court erred in its finding. The stumbling
block to reintegration, according to KVC, was the presence of S.P. in the family home.
We note that the permanency plan did not include S.P.'s removal from the home as a task
for Mother, or as a requirement to accomplish the stated case goal of reintegration.

The purposes of permanency planning are to assure permanency, stability, and
safety in a child's living situation and to preserve family relationships and connections.
K.S.A. 2014 Supp. 38-2263(a). KVC's permanency plan goal was for reintegration and
the plan set forth tasks for Mother to accomplish to meet the goal. The evidence shows
Mother accomplished all of the tasks that were assigned to her with the exception of
following the recommendations of her psychological examination.

KVC assumed responsibility for scheduling the psychological examination with a
KVC employee and the testimony shows Mother was not given an option of obtaining an
evaluation elsewhere. The requirement became part of the plan on September 20, 2013,
yet the record shows no action by KVC to schedule the evaluation by December 19,
2013, when the State amended its petition to include termination of Mother's rights.
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Through no fault of Mother's, who was otherwise accomplishing all of her assigned tasks,
the psychological examination was not scheduled until February 19, 2014. KVC's efforts
in this regard were not reasonable. The report of the examination was not prepared until
March 13, 2014, which was more than 2 weeks after the assigned case manager, Leader,
stopped working on the case.

Given that Mother otherwise completed the assigned tasks in the permanency plan,
what services did KVC provide or offer that were directed to assist Mother in meeting her
final uncompleted task? The record fails to show clear and convincing evidence of any
actions reasonably calculated to assist Mother in complying with the recommendations of
her psychological examination and thereby help preserve this family.

Mother met all of the requirements of the KVC case plan except for following the
recommendations of her psychological examination. Mother testified that she never saw
the evaluation and that no one discussed the recommendations of the report with her. The
original case manager, Leader, testified she received the report and discussed it with
Mother. However, Leader stopped working on the case on February 28, 2013, and the
evaluation was not prepared until after her departure as case manager. Jones testified he
prepared the report on March 13, 2014, and this is confirmed by the report itself which
was admitted into evidence. Christina Reynolds was the interim case manager and did not
testify in the case. Adoption case manager Freidli did not discuss the evaluation with
Mother since she was not aware of it until a week before trial.

Friedli testified she becomes involved in a case when the goal changes from
reintegration to termination. She took over as case manager on May 1, 2014. KVC
determined there would be no reintegration as long as S.P. lived in the home, and Friedli
sent a letter to Mother 2 weeks before trial indicating this was the case. Yet, KVC never
changed the permanency plan to require S.P. to move out of the house and never changed
the plan to reflect that termination was the goal. See K.S.A. 2014 Supp. 38-2263(f)
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(Permanency plan may be amended upon agreement of plan participants; if the
amendment changes the permanency goal, the court is to be notified and a permanency
hearing scheduled.).

The district court found that Mother ignored "repeated admonitions by KVC that
reintegration would not happen as long as [S.P.] was a part of the family." Without any
substantiated evidence of abuse perpetrated by S.P. and without it being part of the
permanency plan, Mother's parental rights are being terminated because S.P. continues to
live with her. The district court found that KVC case managers repeatedly told Mother
that they could not recommend reintegration while S.P. lived in the home. Yet, this
requirement is not part of the permanency plan which KVC presented to Mother. It
represents a change in the plan which was never presented to the court or even put in
writing until 2 weeks before trial when Friedli sent a letter to Mother. The written
permanency plan recognized not only the bond between Mother and children, the
children's bond to one another, but the positive bond four younger children have with S.P.

It is not "reasonable efforts" for KVC to set up requirements for reintegration
which are outside of the parameters of the written permanency plan without amendment
of the plan. K.S.A. 2014 Supp. 38-2269(a)(7) requires the efforts of the agency be
reasonable and those efforts must be shown by clear and convincing evidence.

We make one final observation regarding the efforts by KVC. With regard to S.P.,
Leader testified that one of his case plan tasks was to complete a psychological
evaluation that included a sex offender evaluation. He did not complete this task. As with
Mother, he completed all of his assigned tasks with the exception of the psychological
evaluation. Mother testified S.P. was not objecting to the evaluation and the reason he
had not obtained the evaluation was because he could not afford it. The record does not
show any effort by KVC to assist S.P. in completing this task. The ultimate consequence
of failure to comply with the single condition of the permanency plan was termination of
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Mother's parental rights, yet the record shows no efforts by KVC with regard to that part
of the plan.

We are not convinced a rational factfinder could find it was highly probable that
KVC made reasonable efforts to rehabilitate the family.

K.S.A. 2014 Supp. 38-2269(b)(8)—lack of effort on the part of a parent to adjust the
parent's circumstances, conduct, or conditions to meet the needs of a child.

Mother also argues that the district court erred by finding that she was unfit
because of a "lack of effort on the part of the parent to adjust the parent's circumstances,
conduct or conditions to meet the needs of [her children]" under K.S.A. 2014 Supp. 38-
2269(b)(8). The district court found:

"Throughout these proceedings, [Mother] has continued to insist that neither the State nor
its agents in KVC or DCF had any right to tell her that she could not continue in a
relationship with [S.P.] In fact, [Mother] was told repeatedly that reintegration could not
be recommended as long as [S.P.] remained in the home. [Mother] was strongly
encouraged to obtain individual counseling. She did not do so.”

As discussed above, KVC determined at some point that reintegration would not
occur as long as S.P. lived in Mother's home, but it failed to make that a part of the
permanency plan. Having found it is unreasonable for KVC to impose a requirement
outside of the permanency plan, we find that may not serve as the basis for finding
Mother exhibited a lack of effort. Her effort was not perfect but it was substantial.
Likewise, the only time the record suggests anyone discussed individual counseling with
Mother was near the end of Leader's involvement in the case. We find there is not clear
and convincing evidence to support the district court's conclusion that Mother exhibited a
lack of effort sufficient to warrant termination of her rights. Mother was in compliance
with the parts of the permanency plan which were within her control. She did not cause
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the delay in compliance with the plan requirement for the psychological evaluation. Clear
and convincing evidence refers to the quantity of evidence, and we are not convinced that
standard has been met here.

K.S.A. 2014 Supp. 38-2269(c)

K.S.A. 2014 Supp. 38-2269(c) requires the court to consider a parent's failure to
maintain regular communication and visitation when the child is not living at home. With
respect to the visits between Mother and K.W. during the time she lived with the Fitzers,
the court found: "There is no evidence from which to conclude that Mother attempted to
maintain regular contact with her daughter." In this termination proceeding, the burden of
proof is on the State and the evidence must be highly probable. For the district court to
find clear and convincing evidence that Mother failed to maintain regular communication
and visitation with a child not living at home, there must be affirmative evidence in the
record supporting that point. No witness was asked about visits or communication
between mother and K.W. and the Fitzers, and the evidence is uncontroverted that
Mother exercised every opportunity to visit while the children have been in the custody
of DCF.

We find there is no evidence from which the trial court can conclude it was highly
probable that Mother did not attempt or exercise visits with her daughter while she was at
the Fitzers.

K.S.A. 38-2269(g)(1)—Best interests of the children

Although we are convinced that a rational factfinder could not find clear and
convincing evidence of unfitness, we address the issue of best interests of the children.
For even if we affirmed the district court's determination that Mother was unfit and that
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unfitness was unlikely to change in the foreseeable future, termination is appropriate only
if it is in the best interests of the children.

In making the best interest determination, "the court shall give primary
consideration to the physical, mental and emotional health of the child. If the physical,
mental or emotional needs of the child would best be served by termination of parental
rights, the court shall so order." K.S.A. 2014 Supp. 38-2269(g)(1). In evaluating the best
interests of the child, the district court must consider the nature and strength of the
relationship between a parent and child and the trauma that termination may cause to the
child. It must weigh these considerations against a further delay in permanency for the
child. In re K.R., 43 Kan. App. 2d 891, 904, 233 P.3d 746 (2010).

If the court makes a finding of unfitness, the court then must determine whether
termination of parental rights is in the best interests of the child. The district court's
determination in this regard is a discretionary judgment call. On appeal, the appellate
court reviews the best-interests determination for abuse of discretion. A district court
abuses its discretion when no reasonable person would agree with its decision or the
decision is based on a legal or factual error. If the district court makes any additional
factual findings that relate solely to the best-interests determination, those findings may
be made based on the preponderance of the evidence and are reviewed on appeal to see
whether substantial evidence supports them. In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 2,
336 P.3d 903 (2014).

The district court's analysis focuses almost exclusively on Mother's shortcomings,
yet the "primary" consideration is supposed to be the physical, mental, and emotional
health of the children. The district court's analysis provides:

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"These cases have been pending for almost a year as of the time of trial. [Mother] has
made it clear that she chooses [S.P.] over her children despite being told repeatedly that
he was an impediment to reintegration.
"These children deserve permanency. They are bonded to their mother, some
more than others. These are sad cases, and these children have been let down by their
parents and do not deserve to wait on them any longer."

The extent of the district court's analysis insofar as the children are concerned is
their need for permanency and the length of time the case has been pending. We note first
that nearly 7 months of the 10 month "delay" in providing permanency for the children is
directly attributable to KVC and not Mother. It was KVC which assumed responsibility
for arranging Mother's psychological examination and that was not accomplished until
almost 7 months after the case was filed and 3 months after the petition to terminate was
filed. While permanency is extremely important, so is Mother's right to parent. There
must be thoughtful analysis about the effect of termination on the children, and it must
include more than pointing to the children's need for permanency.

Case manager Leader testified that D.W. and L.W. had a "very good" relationship
with Mother and "they seemed pretty close." Mother was able to show loving gestures
and was fairly engaged with D.W. and L.W. She described Mother's relationship with
K.W. as appropriate but superficial. The boys, J.W. and J.W., mostly interacted with each
other during visits, but Mother was able to express her affection for the boys. The
permanency plan notes that Mother is bonded to the children, the children to one another,
and that at least the four younger children have a positive relationship with S.P.

In its findings, the district court noted that Mother was bonded to the children but
there was no analysis by the district court of the nature and strength of the relationship
between Mother and child. As of the time of trial, the five children, although bonded to
one another, were placed in four different placements. There is no analysis by the district
court what impact splitting the children apart would have on their individual mental and
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emotional health. Although K.W. and J.W. were in counseling, no evidence was
presented by any witness about the issues being addressed or the effects on the children
of terminating Mother's rights. J.W., D.W., and L.W. had assessments and it was
determined therapy was not appropriate. These children lived their entire lives in
Mother's home with the exception of 2 months in 2009 and during this present case.
There is a dearth of evidence suggesting Mother's presence in these children's lives is
detrimental to them. No witness suggested the four younger children were not cared for
appropriately and there is no evidence which indicates those children were themselves
subjected to any emotional neglect by Mother.

The district court's findings fail to address the nature and strength of the
relationship between Mother and the children and the trauma which may result to them
from a termination of Mother's rights as set forth in In re K.R., 43 Kan. App. 2d 891. We
find the district court abused its discretion by failing to consider the effect of termination
on the mental and emotional health of the children as required by K.S.A. 2014 Supp. 38-
2269(g)(1).

We reverse the termination of Mother's parental rights. Mother did not challenge
the CINC determination, therefore we remand this matter to the district court for a
dispositional hearing pursuant to K.S.A. 2014 Supp. 38-2253.

Reversed and remanded with directions.