In re O.M.

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NOT DESIGNATED FOR PUBLICATION

No. 118,248

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In The Interests of
O.M., A.M., E.M., and S.M.,
Minor Children.


MEMORANDUM OPINION

Appeal from Franklin District Court; ERIC W. GODDERZ, judge. Opinion filed March 30, 2018.
Affirmed.

Elizabeth L. Oliver, of Oliver Law Office, Ltd., of Ottawa, for appellant natural mother.

Stephen A. Hunting, county attorney, for appellee.

Before BRUNS, P.J., PIERRON and POWELL, JJ.

PER CURIAM: This appeal arises out of the district court's decision terminating the
parental rights of K.J., who is the natural mother of O.M., A.M., E.M., and S.M. The first
issue presented on appeal is whether there is appellate jurisdiction in light of the failure
of K.J.'s counsel to file a notice of appeal in a timely manner. Because K.J. has a
statutory right to effective counsel in order to protect her constitutional rights as a parent,
we find that it is appropriate to review the issues presented on the merits. However, we
do not find that the district court abused its discretion in denying K.J.'s second motion for
a continuance of the termination hearing. Moreover, we find that there is clear and
convincing evidence in the record upon which a reasonable fact-finder could conclude
that K.J.'s parental rights should be terminated. Finally, even if we had appellate
jurisdiction over the issue, we find that the district court did not err in failing to place the
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children with their maternal grandmother under the circumstances presented. Thus, we
affirm.
FACTS

K.J. is the natural mother of O.M., born in 2007; A.M., born in 2008; E.M., born
in 2012; and S.M., born in 2006. Each of the children share the same father, who has
voluntarily relinquished his parental rights. On April 22, 2016, the State filed separate
petitions in district court alleging that O.M., A.M., E.M., and S.M. were each a child in
need of care. The petitions alleged that an emergency existed necessitating out of home
placement. Specifically, it was asserted that there were "[a]llegations of domestic
violence and drug use in the home while the children were present; drugs and
paraphernalia found in home; father incarcerated, children sent to stay with grandmother
whose home is not appropriate for children and has been substantiated on for physical
abuse of a child."

The petition also included a summary of events that occurred on April 5, 2016, in
which the Ottawa Police Department responded to a Casey's General Store where they
found a woman—not K.J.—with a baby who had been in a fight. Evidently, the woman
lived with the children's father. She told officers that the two had been fighting
throughout the night. According to the woman, when the children's father had fallen
asleep, she grabbed her baby and ran to the Casey's store.

The children's father was also at the Casey's store when the officers arrived. He
stated that O.M., A.M., E.M., and S.M were at his house and that he had left them alone.
He admitted that he used methamphetamine and indicated that K.J. did as well. He stated
that K.J. also had been at the house during the incident. He further stated that during the
altercation with the woman, two of his children were sleeping on the couch and the other
two were upstairs sleeping.

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The officers allowed K.J.'s mother to pick up the children from their father's
house. In addition, they reported the incident to DCF on April 20, 2016. The same day, a
social worker spoke to one of the children. The social worker noticed that the child's teeth
were blackened, and the child stated that her teeth hurt very badly.

The social worker also went to the maternal grandmother's house where the
children were staying. She stated that the home was cluttered and dirty. The grandmother
stated that the children were sleeping in the attic of the house. The social worker
observed that the stairs leading to the attic were narrow and steep with no railing. In the
attic bedroom there were open bags of cat litter and an open full litter box. Medication
bottles were on a coffee table in the room within reach of the children. The beds the
children were reported as sleeping in had no sheets on them. The grandmother reported
that she was on probation through Johnson County. Living in the home were five adults
and the four children. A family preservation worker attempted to get a UA from the
grandmother, but she stated she could not urinate even after the social worker waited for
an hour while grandmother drank two cups of coffee. The petition stated that the
grandmother and her husband "are listed on the Central Registry for physical abuse of a
child."

On May 3, 2017, the State filed a motion for finding of unfitness and termination
of parental rights to each of the children. The State alleged that the parents were unfit
under K.S.A. 2017 Supp. 38-2269(b)(2), (b)(3), (b)(5), (b)(7), (b)(8), (c)(2), and (c)(3).
Sometime in the middle of June, K.J. was arrested and confined in the Franklin County
jail. The case was originally set for trial on July 12, 2017, but the district court continued
it for one week due to communication issues between K.J. and her counsel. The children's
father relinquished his parental rights on July 12, 2017.

On July 19, 2017, the district court held a hearing on the motion to terminate K.J.'s
parental rights. K.J. appeared with counsel, as did the children's maternal grandmother
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and a guardian ad litem for the children. At the beginning of the hearing, K.J. asked the
district court to postpone the trial for 90 days to allow her more time to work on her case
plan goals, on which she claimed to be progressing recently. The district court denied the
request and held the trial.

Testifying for the State was Jaclynne Putney, a child protection specialist for the
Ottawa Department for Children and Families (DCF). She was the assigned investigator
for these children. She testified that there had been eight total reports to DCF on this
family for physical neglect, drug concerns, and domestic violence from 2013-2015. K.J.
was offered family preservation services three times, and she only accepted the service in
2014. The children were placed in protective custody on September 24, 2015, when K.J.
was arrested on drug charges, but the children were released to their father, who accepted
family preservation services. The family preservation services did not include K.J.

Putney testified that the current case began in April 2016 after the children
witnessed a domestic incident between their father and his live-in girlfriend. After the
incident, the children were living in the maternal grandmother's home, and when DCF
spoke to the maternal grandmother, they determined that the home was not in a condition
in which children should be residing. The maternal grandmother told DCF that K.J. was a
drug addict and was not to be around the children. Putney testified that when the children
were taken into custody, A.M. complained about her teeth hurting. Her teeth had
blackened, and she said she could not remember ever going to the dentist.

Next to testify was Brittany Smith, a licensed professional counselor with KVC
Health Systems, Inc. (KVC). She was the case manager for these children from May
2016 to May 2017. Smith testified:

"[K.J.] had case plan tasks for housing, income, RADAC evaluation,
recommendations, transportation plan, mental health, parenting, addressing legal matters
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or keeping us up to date on legal matters, attending case plans outside of the first one
were the primary case plan tasks assigned.

"And then she was later assigned a task for learning sign language in order to
better communicate with the children and with the Court."

According to Smith's testimony, K.J. never obtained sufficient housing for the
children despite KVC paying for her startup fee in order to get utilities. At the time of the
hearing, K.J. was residing in the Franklin County Jail. Smith testified that she had no
documentation that K.J. had appropriate housing once released. K.J. never provided
documentation proving that she had employment. K.J. signed a release so a temp-to-hire
agency she worked at could release her work documentation, but KVC never received
any proof of employment. Smith testified that she had no documentation or verification
that K.J. had or did not have a job at the time of the termination hearing.

K.J. completed a Regional Alcohol & Drug Assessment Center (RADAC)
evaluation on November 16, 2016. The recommendation from that assessment was for
her to complete level 1 outpatient treatment services. KVC provided K.J. with a phone
number for the service, but K.J. had not notified KVC if she had engaged in outpatient
treatment. Throughout the case, Smith never received documentation that K.J. engaged in
outpatient treatment. KVC worked with K.J. to try to do weekly random UAs. Smith
testified that K.J. had 15 clean UAs, 6 positive UAs, and more than 31 missed UAs. The
UAs were positive for meth and amphetamines. K.J.'s last positive UA was on May 16,
2017, and that was the last UA she took.

Smith testified that K.J. relied on others for rides, and her transportation was not
reliable because she missed approximately one-third to one-fourth of her appointments.
K.J. never completed a mental health evaluation. She never attended parenting classes.
When asked if K.J. had attended any parenting classes, Smith testified, "Not to my
knowledge." According to Smith, K.J. usually kept her updated on her legal status. K.J.
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was supposed to learn sign language to help her communicate with KVC and with her
children. KVC identified some free resources for K.J. and also assisted the children in
learning sign language, so they could potentially practice in visits. When asked if K.J.
ever followed up on those resources, Smith testified, "Not to my knowledge." K.J. never
provided documentation or demonstration of learning sign language.

During the year that the children were in custody, K.J. had 12 in-person visits with
them at the KVC offices. She would often have to cancel visits either because she was
unable to get to the office to do a UA or because she had a positive UA. When she did
have visits, they went fairly well, and she seemed to have a bond with the children.
Although K.J. used to keep regular contact with KVC, her last contact with them was
May 16, 2017.

Regarding KVC's efforts to help K.J. with her tasks, Smith testified that KVC met
K.J. at a gas station to get a UA when she was not able to come to KVC offices, Smith sat
with her on two occasions in order to schedule the RADAC evaluation, and KVC
provided transportation to visits. Smith reviewed the case plan tasks with K.J. so that she
was aware of the tasks. Smith testified regarding how the children were doing in their
current placement. She then testified that KVC was recommending termination of
parental rights due to K.J.'s lack of completing any of her case plan tasks or showing the
ability to complete them in the near future along with the length of time the children had
been in care and their need for permanency.

K.J.'s counsel called K.J.'s mother to testify. She testified that if K.J. was released
from jail, she could live at her house. She noted that K.J. had a prescription for pain
medication, but she did not know if the medication contained opiates. She stated that in
the past year K.J. worked for two-and-a-half to three months at Focus, which was a temp
agency that placed her at American Eagle. She also worked at Jet for a month and at CFS.
According to K.J.'s mother, LMC Truck was holding a job for K.J. Additionally, LMC
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Truck was where K.J.'s mother worked, so K.J. could ride to work with her. She testified
that K.J. did two RADAC assessments and a mental health evaluation. She was
diagnosed by Southeast Kansas Mental Health with post-traumatic stress disorder and
received treatment from Southeast for two months before she went to jail. She ordered a
book about sign language for K.J. She wanted to be considered to adopt the children. She
stated that she had looked into her criminal history and found nothing. She also stated
that she called DCF in Topeka, and they also had nothing on her record.

After hearing the evidence, the district court determined that "the mother has done
nothing. The little she has done has been negated by subsequent activity on her part." The
district court found that even though she alleged to have gotten another evaluation and
started going to outpatient treatment, she provided no proof to support her allegations. At
the conclusion of the hearing, the district court determined that K.J. was unfit by reason
of conduct or condition that rendered her unable to care properly for the children and that
was unlikely to change in the foreseeable future. The district court determined that it was
in the best interests of the children to terminate parental rights. The district court,
therefore, terminated K.J.'s parental rights to the children.

At the end of the hearing, the district court stated:

"[K.J.], if you wish to appeal the Court's ruling you may. Ms. Branson can advise
you on how to get that accomplished. Other than that, Ms. Branson [K.J.'s attorney], if
she does not appeal your obligations in this case will be terminated. You'll need to advise
her of that.

"MS. BRANSON: Thirty days to appeal a termination of parental rights?

"THE COURT: I think it's thirty days, yes."

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The journal entry terminating K.J.'s parental rights was filed the same day as the
hearing—July 19, 2017. On August 23, 2017, K.J. filed a notice of appeal in each case,
stating she was appealing the district court's finding her unfit and terminating her parental
rights as well as all adverse rulings to this court. On September 13, 2017, the district
court filed an order consolidating all four cases.

After K.J. docketed her appeal, our motions panel issued an order to show cause
why this appeal should not be dismissed for lack of jurisdiction due to the fact that K.J.
filed her notices of appeal 35 days after the district court's journal entry and beyond the
30 day limitation of K.S.A. 2017 Supp. 60-2103(a). After receiving responses from the
parties, the motions panel determined that this court should retain the appeal on the
present showing. However, the motions panel ordered the parties to brief the
jurisdictional issue for the panel assigned to hear the merits of the appeal.

ANALYSIS

Appellate Jurisdiction

The State contends that we lack jurisdiction over this appeal because K.J. did not
file a timely notice of appeal from the order terminating her parental rights. The existence
of jurisdiction is a question of law over which this court has unlimited review. In re
N.A.C., 299 Kan. 1100, 1106, 329 P.3d 458 (2014). The right to appeal is only available
through statutes—it is not contained in the United States or Kansas Constitutions. Thus,
Kansas appellate courts only have jurisdiction to entertain an appeal if the appeal is taken
in the manner prescribed by the applicable statutes. See Wiechman v. Huddleston, 304
Kan. 80, 86-87, 370 P.3d 1194 (2016).

An interested party shall file a notice of appeal from a district court's termination
of parental rights within 30 days. K.S.A. 2017 Supp. 38-2273(a), (c); K.S.A. 2017 Supp.
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60-2103(a). It is undisputed that K.J. failed to file her notice of appeal within 30 days of
the district court's order terminating her parental rights as a result of an error on the part
of her appointed counsel. The State maintains that K.J.'s failure to timely file her notice
of appeal divests this court of jurisdiction and that this court has the duty to dismiss an
appeal when the record shows a lack of jurisdiction. See Wiechman, 304 Kan. at 85
("When the record discloses a lack of jurisdiction, the court must dismiss the appeal.")
K.J. argues that she should be allowed to proceed on appeal under the reasoning of State
v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), due to ineffective assistance of counsel.

Here, the journal entry terminating K.J.'s parental rights was filed by the district
court on July 19, 2017. As such, she had 30 days from that date to file a notice of appeal.
However, between the time the journal entry was filed and the deadline for the filing of
the notice of appeal, the district court allowed K.J.'s trial counsel to withdraw. She was
then appointed new counsel on August 7, 2017. At that point, there was still sufficient
time to file a timely notice or notices of appeal. However, the newly appointed counsel
evidently did not understand that K.J.'s parental rights had already been terminated and
candidly admits that she failed to file a notice or notices of appeal in a timely manner.

Specifically, the attorney appointed to represent K.J. in this appeal acknowledges
in her response to the order to show cause entered by our motions panel that she did not
realize that K.J.'s parental rights had been terminated until after she appeared at a hearing
on August 17, 2017. She then visited K.J. in jail on August 22, 2017, and prepared a
notice of appeal. The following day, she obtained K.J.'s notarized signature before
belatedly filing a notice of appeal on August 23, 2017.

K.J. contends that we should apply the reasoning from In re T.M.C., 26 Kan. App.
2d 297, 988 P.2d 241 (1999), in which a panel of this court determined that the Ortiz
factors should apply to a determination of whether to retain an untimely Child in Need of
Care appeal. In In re T.M.C., the district court terminated a natural mother's parental
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rights. Although the mother and her court-appointed attorney discussed the merits of an
appeal immediately after her parental rights were severed, her attorney told her that an
appeal would be groundless and that he did not want to file an appeal for her. Eventually,
the mother filed in the district court a request to file an untimely appeal from the order
terminating her parental rights. The district court denied the request, concluding that it
lacked jurisdiction to grant it.

On appeal, the parties agreed that the mother was not informed by her court-
appointed attorney that she had 30 days after the entry of judgment to file her appeal. The
court also stated that there was no indication in the record that the district court had
informed the mother of the 30-day period. Because a parent's right to counsel in an
appeal from a termination of parental rights proceeding is founded on constitutional
grounds, the In re T.M.C. court concluded that the mother's appeal could not be cut off
due to the ineffective assistance of counsel, apparently determining that counsel's failure
to inform the mother that she had 30 days after the entry of judgment to file her appeal
constituted ineffective assistance of counsel. Thus, the court reversed and remanded with
directions to allow the mother to docket her appeal. 26 Kan. App. 2d at 301.

Although the Kansas Supreme Court has not issued an opinion specifically stating
whether a parent has any right to file an untimely notice of appeal after termination of
parental rights, it has cited favorably to In re T.M.C. in an appeal from the denial of an
inmate's K.S.A. 60-1507 motion. See Guillory v. State, 285 Kan. 223, 227-28, 170 P.3d
403 (2007). In Guillory, our Supreme Court considered whether the Ortiz exceptions
could be applied to save an untimely notice of appeal of a district court's decision
summarily denying Guillory's pro se K.S.A. 60-1507 motion. In particular, Guillory
argued that the first Ortiz factor applied because the district court never informed him
that he had a right to appeal the denial of his K.S.A. 60-1507 motion within 30 days of
the decision.

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In Guillory, our Supreme Court noted that this court had applied the Ortiz analysis
in the case of In re T.M.C. because the appellant had a statutory right to appointed
counsel throughout the proceeding to advocate the mother's constitutional rights. 285
Kan. at 228. Ultimately, in Guillory, it was determined that the Ortiz analysis did not
allow Guillory to file an untimely appeal in his case. Nevertheless, we find it significant
that our Supreme Court did not question the rational of In re T.M.C.

The State argues that this court should follow the case of In re L.B., 42 Kan. App.
2d 837, 217 P.3d 1004 (2009), rev. denied 289 Kan. 1278 (2010), instead of In re T.M.C.
In In re L.B., a natural mother filed a notice of appeal within 30 days of the district court's
order terminating her parental rights. However, in her notice of appeal, the mother stated
that she wished to appeal the termination finding as well as the temporary placement
order and child in need of care (CINC) finding. On appeal, a panel of this court
determined that it had no jurisdiction to review the district court's orders of temporary
custody and CINC findings because the record clearly showed that the mother's notice of
appeal was untimely as to those rulings. 42 Kan. App. 2d 843-44.

The panel in the In re L.B. case decided that it would not follow the holding of In
re T.M.C. 42 Kan. App. 2d at 840. Instead, the panel determined that the constitutional
right at risk in a termination of parental rights case is different from the constitutional
right at risk in a criminal case. The panel held that although an indigent parent is entitled
to due process protections under the Fourteenth Amendment to the United States
Constitution, the parent's rights were subject to the balancing test established in Mathews
v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). After balancing
these factors, the In re L.B. court concluded that the mother was not entitled to take an
untimely appeal of the prior orders of temporary custody or the CINC finding. 42 Kan.
App. 2d at 843-44.

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In the present case, of course, we are not dealing with the untimely filing of an
appeal from temporary orders. Rather, we are dealing with a parent whose constitutional
rights have been permanently terminated. Moreover, as K.J.'s court-appointed attorney
has candidly admitted, the notice of appeal was not timely filed due to a mistake by her
and not by her client. As our Supreme Court has found, when a person is statutorily
entitled to counsel, that person must receive effective assistance of counsel so that the
appointment is not a useless formality. Mundy v. State, 307 Kan. 280, 295, 408 P.3d 965
(2018); Albright v. State, 292 Kan. 193, 207, 251 P.3d 52 (2011). We, therefore, conclude
that under the circumstances—specifically, the deficient performance of legal counsel in
failing to file a timely appeal—K.J.'s appeal should be considered on the merits.

Motion for Continuance

The first issue presented by K.J. is whether the district court erred in denying her
motion for a continuance at the termination hearing on July 19, 2017. We review a
district court's refusal to grant a continuance for abuse of discretion. In re J.A.H., 285
Kan. 375, 384, 172 P.3d 1 (2007). Typically, abuse of discretion occurs if no reasonable
person would take the view adopted by the district court, but it may also occur if the
district court based its decision on an error of law or fact. 285 Kan. at 384; Consolver v.
Hotze, 306 Kan. 561, 569, 395 P.3d 405 (2017).

Furthermore, in termination of parental rights cases, K.S.A. 2017 Supp. 38-
2267(a) states that "[a] continuance shall be granted only if the court finds it is in the best
interests of the child." In ruling on a motion for continuance in such a case, our Supreme
Court has stated that the district court must consider all of the circumstances, including
"'the applicant's good faith, his showing of diligence, and the timetable of the lawsuit.'
[Citation omitted.]" In re J.A.H., 285 Kan. at 385. Here, K.J. argues that the district court
did not make any of the findings necessary to deny her motion for a continuance.

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In response, the State argues that under the language of the continuance statute,
the district court only has to make a best interest determination if it grants the
continuance. The statute specifically states that a continuance shall be granted only if the
court finds it is in the best interests of the child. K.S.A. 2017 Supp. 38-2237(a).
According to the State, the district court's refusal to grant the continuance was an implicit
showing that the district court did not think the continuance was in the best interests of
the child. Moreover, the State argues that the district court's exchange with K.J. before
ruling on her request for a continuance demonstrates that the district court appropriately
considered K.J.'s request.

We note that the State filed the motion to terminate K.J.'s parental rights on May
3, 2017. The district court originally set the termination hearing for July 12, 2017.
However, it granted K.J.'s request for a continuance and rescheduled it for July 19, 2017.
At the July 19, 2017 termination hearing, the district court explained that it had
rescheduled the hearing due to "concerns raised as far as communication issues between
the mother and her counsel . . . in order to give counsel some additional time to talk with
her client." The district court then asked K.J.'s counsel whether she had an opportunity to
talk to her client since the last hearing, and counsel stated that she had talked to her three
times that week.

The district court explained that when it continued the previous hearing, it
believed K.J. was going to get out of jail that week. Evidently, K.J. had thought her
mother was going to post bond, but she was unable to do so. As such, K.J. was still in jail
and had not been able to obtain proof that she had been attending the classes that
RADAC recommended. The district court allowed K.J. to make a statement, and she
asked the court for more time. Specifically, she stated that she had been slowly making
progress and had gotten the drugs out of her system during her stay in jail.

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K.J.'s counsel stated that once K.J. got out of jail, she would live with her mother.
Also, K.J.'s counsel indicated that K.J.'s mother had gotten her a job at the company
where she worked. Counsel argued that K.J. was now able to meet her case plan goals
and, as such, was asking for 90 days. After considering the arguments, the district court
found that although K.J. probably had good intentions, she had been unable to follow
through in the past.

Moreover, the district court stated:

"THE COURT: I have to take into consideration not just what you're telling the
Court but I also have to take into consideration what's in the best interest of the children.
And it's not in the best interest of the children to keep having this go on and on and on.
Especially when there's no proof that you're going to change.

"[K.J.:] I have proof and I can prove it to you. It's just I'm sorry I'm in here and I
get out I can bring all my paperwork. I can bring everything to you.

"THE COURT: That's what today was for. That's why I continued from last
week. I gave you a chance to get the stuff and bring it today.

"[K.J.:] I'm sorry. I thought my mom was going to bond me out and I guess she
decided she wasn't.

"THE COURT: So we'll go forward with the hearing."

Based on our review of the record, we find that the district court sufficiently
considered K.J.'s request. More importantly, the district court considered what was in the
best interests of the children and concluded that "it's not in the best interest of the
children to keep having this go on and on and on." Accordingly, we do not find that the
district court abused its discretion in deciding not to grant another continuance of the
termination hearing.
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Sufficiency of Evidence

Next, K.J. contends that there was insufficient evidence to terminate her parental
rights. The Kansas Legislature has specified that the State must prove "by clear and
convincing evidence that the child is a child in need of care." K.S.A. 2017 Supp. 38-
2250. The clear and convincing evidence standard of proof also applies to all termination
of parental rights cases. K.S.A. 2017 Supp. 38-2269(a).

In reviewing a district court's decision to terminate a person's parental rights, we
consider whether "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 B.D.-Y., 286
Kan. 686, 705, 187 P.3d 594 (2008); In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d
1021 (2011). In making this determination, we review all the evidence in the record in the
light most favorable to the State. We are not to weigh conflicting evidence, pass on the
credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 705.

The revised Kansas Code for the Care of Children provides that the district court
may terminate parental rights when a child has been adjudicated a CINC. K.S.A. 2017
Supp. 38-2269(a). The statute lists nonexclusive factors the court shall consider in
making a determination of unfitness. K.S.A. 2017 Supp. 38-2269(b). The district court
must also consider a separate list of nonexclusive factors when a child is not in the
parent's physical custody. K.S.A. 2017 Supp. 38-2269(c). Any one of the factors in
K.S.A. 2017 Supp. 38-2269(b) or (c) may—but does not necessarily—establish grounds
for termination of parental rights. K.S.A. 2017 Supp. 38-2269(f).

Here, a review of the record reveals that the district court cited the following facts
as evidence that K.J. was unfit by reason of conduct or condition that rendered her unable
to care properly for the children and that was unlikely to change in the foreseeable future:
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"Mother not completed any case plan tasks, no proof of stable housing, failure to
take drug tests, history of drug use and positive methamphetamine tests throughout the
case, never provided proof of employment, failure of efforts by KVC to help mother
complete any case plan tasks, no stable transportation, no proof of parenting classes or
mental health compliance, lack of effort of mother to change circumstances, failure to
maintain contact and visitation with children, mother's drug addiction makes her unable
to care for children."

The district court determined that considering the physical, mental, or emotional
health of the children, termination of parental rights was in the best interests of the
children. The district court also determined that the children's physical, mental, and
emotional needs would be best served by termination of K.J.'s parental rights.

We find that substantial competent evidence supports the district court's findings.
The State provided evidence that K.J. had failed to complete any of her case plan tasks.
Although K.J.'s mother alleged that K.J. had completed some tasks, K.J. provided no
proof to support that allegation, and the district court did not find K.J.'s mother's
testimony to be credible. Viewed in the light most favorable to the State, we conclude
that a rational factfinder could have found clear and convincing evidence that K.J. was
unfit and that her situation would not change in the foreseeable future. See In re D.T., 30
Kan. App. 2d 1172, ¶ 4, 56 P.3d 840 (2002) (foreseeable future viewed in "child time,"
rather than "adult time").

Placement with Maternal Grandmother

Finally, K.J. contends that the district court erred in failing to consider the
maternal grandmother as an option for placement of the children. The State argues that
we do not have appellate jurisdiction to consider this argument because posttermination
placement of the children is not an appealable order. As stated previously, the existence
17

of appellate jurisdiction is a question of law over which this court has unlimited review.
In re N.A.C., 299 Kan. at 1106.

Under the revised Kansas Code for the Care of Children, "[a]n appeal may be
taken by any party or interested party from any order of temporary custody, adjudication,
disposition, finding of unfitness or termination of parental rights." K.S.A. 38-2273(a).
The Kansas Supreme Court has specifically determined that "the order terminating
parental rights was the last appealable order under K.S.A. 2017 Supp. 38-2273(a)." In re
N.A.C., 299 Kan. at 1118. This court, therefore, lacks jurisdiction to consider this issue.

We note, however, that even if we did have jurisdiction over this issue that the
record supports the district court's ruling regarding the placement of the children. The
district court specifically noted that maternal grandmother had a child in need of care
case against her, in which she was the alleged abuser of K.J. when she was a child.
Likewise, the district court noted that maternal grandmother had a history of drug and
alcohol problems. Thus, we do not find that the district court erred in deciding not to
place the children with their maternal grandmother.

Affirmed.