In re R.M.

1

NOT DESIGNATED FOR PUBLICATION

Nos. 115,945
115,946

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of
R.M., YOB 2011, a Male, and
R.B., YOB 2012, a Female.


MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed May 12, 2017.
Affirmed.

Daniel C. Walter, of Walter & Walter LLC, of Norton, for appellant natural mother.

Charlene Burbaker, county attorney, for appellee.

Paul R. Oller, of The Oller Law Firm, LLC, of Hays, for appellee maternal grandmother.

Before GREEN, P.J., STANDRIDGE and GARDNER, JJ.

GARDNER, J.: Mother appeals from the termination of her parental rights to her
two children. She contends that the procedure violated her First Amendment rights under
the Establishment Clause, violated her constitutional due process right to raise her
children, and discriminated against her based on her sexual orientation. We find no merit
to these arguments, but we find clear and convincing evidence supporting the termination
of Mother's parental rights. Accordingly, we affirm.



2

Factual and Procedural Background

Mother has two children, R.M., a son, and R.B., a daughter. The events that led to
this appeal occurred in 2013 when her son was 2 years old and her daughter was 10
months old. Mother and her children were living with Mother's same-sex partner, J.B., at
the time.

On June 17, 2013, Mother went to work around noon and left the children in the
care of her partner. Her son was then injured. Mother's partner claimed that she had taken
the son to his room and had left him alone while she tried to put the daughter down for a
nap. While tending to the daughter, Mother's partner heard a loud noise in the son's room.
She checked on the boy and could tell that his leg was injured, so she took the boy to
Hays Medical Center. She claimed that the boy had injured himself by playing on a
broken loveseat.

The son had multiple injuries, including a broken lower left leg and bruising on his
forehead, left ear, buttocks, penis, scrotum, and groin. His penis was swollen and its tip
was red and scabbed over. Mother told investigators that her son had not had any injuries
to his genital area when she changed his diaper before going to work. A pediatrician who
examined him testified that the injuries to his genitals could have happened only through
blunt-force trauma. The pediatrician also testified that it was "hard to think of an accident
that would cause the entire pattern of injuries for sure." The pediatrician plainly stated
that the injuries the son received were consistent with child abuse.

Neither Mother nor her partner could provide any explanation for the son's injuries
other than the alleged accident involving the loveseat. The treating physician
acknowledged that the boy's injuries were not all consistent with a fall from a loveseat,
and Mother and her partner stated they never spanked him as a form of punishment.

3

A nurse at Hays Medical Center alerted local law enforcement that the boy's
injuries may have been the result of child abuse. Investigator Aaron Larson spoke to
Mother, her partner, and the medical professionals involved. He found reasonable
grounds to believe that the children would be harmed unless they were placed in
immediate custody elsewhere. Investigator Larson based his conclusion on the following
facts: (1) The boy had a broken leg; (2) his injury occurred in the home that the children
shared with Mother and her partner; (3) the partner stated that the boy had broken his leg
while climbing on and falling from a broken loveseat; (4) the boy had bumps and scrapes
on his body; (5) medical staff informed the officers that he had bruises on his ear and
scratches under his chin and on his neck; (6) the boy had injuries to his head which were
not consistent with the incident as described by Mother's partner; and (7) the boy had
significant injuries to his groin and buttocks which were not consistent with the incident
as described by Mother's partner.

Investigator Larson's report found inadequate explanations by Mother and her
partner as to the cause of the injuries:

"When confronted with the groin injuries, [Mother] told officers that she had
changed [her son's] diaper prior to noon and had not seen those injuries or a bruise to
[his] buttocks. Officers noted that [the son] was dirty while [the daughter] was clean and
smelled like she had been washed recently. [Mother's partner] stated that she did not
know how the injuries happened to [the boy]. Some of the injuries to [him] could not
have been caused by him playing on the loveseat, especially the injuries to the groin.
There was generalized bruising in that area that was purple and red. The end of the penis
was bright red in color.
"Due to the nature of the injuries and the lack of an adequate expl[a]nation by
either of the caregivers, officers placed [the boy] and his sister, [R.B.,] into police
protective custody, to assure their safety. [The boy] will remain under medical care for
the time being, and placement will be determined for [his sister]."

4

That same day, a detective with the Hays Police Department interviewed Mother's
partner. When shown photographs of the boy's injuries, she said that she was "disgusted."
Eventually, she was arrested and was criminally charged with felony child abuse of
Mother's son. She ultimately made an Alford plea to three misdemeanor counts of child
endangerment. She thus pleaded guilty to the charges without admitting to the
commission of the offenses. See State v. Case, 289 Kan. 457, 460, 213 P.3d 429 (2009).
The district court in Mother's subsequent termination of parental rights case took judicial
notice of the arrest, charge, and criminal convictions of Mother's partner.

The detective later spoke with Mother, who indicated that she could not believe
her partner would have injured her son. Mother has chosen to persist in her disbelief
throughout these proceedings.

Two days later, a petition was filed pursuant to K.S.A. 2012 Supp. 38-2234
alleging that both children were in need of care. The State also filed and the district court
granted an Application for Ex Parte Order of Protective Custody under K.S.A. 2012
Supp. 38-2242, finding that an emergency existed in the home which threatened the
children's safety. A temporary custody hearing soon followed, and the children were
adjudicated as children in need of care and were placed in the custody of the Secretary of
the Department for Children and Families (DCF).

Initially, both children were placed in the care of a foster home licensed by Saint
Francis Community Services (Saint Francis) because it had held medically fragile
children before. The children stayed there for about 2 months; but once the son's injuries
healed, the children's activity level increased such that the caregiver stated she could not
effectively care for them. Accordingly, in August 2013, both children were placed with
their maternal grandmother and stepgrandfather.

5

In July 2013, at the parties' first case planning conference, the permanency goal
was listed as reintegration with Mother. Every case planning conference mandated that
Mother should have no contact with her partner and that the partner should have no
contact with the children. Reintegration remained the goal until November 2014.

In April 2015, the State moved the court to find Mother unfit and to terminate her
parental rights. Mother responded in June 2015 by filing a motion to dismiss, arguing the
following: (1) her freedom of religion was being violated; (2) her due process rights to
raise her children were being violated; (3) her due process rights were being violated
because DCF had already "essentially" terminated her parental rights by halting visits; (4)
she was being discriminated against based on her sexual orientation, citing K.S.A. 44-
1001 and 44-1009; and (5) the district court violated K.S.A. 2013 Supp. 38-2264(e) by
failing to hold a permanency hearing within 30 days of the November 19, 2014, review
hearing at which the court determined reintegration was no longer viable.

Soon thereafter, Mother filed an amended motion to dismiss which added this
claim: "By relinquishing its authority to Saint Francis Community Services, the State of
Kansas is allowing a religious based organization to establish its principles upon this
family in violation of the First Amendment to the United States Constitution."

On September 23, 24, and 25, 2015, a trial was held on the State's motion to
terminate Mother's parental rights and on Mother's motions to dismiss. The district court's
written decision found: "Regarding the constitutional arguments, no evidence was
offered nor did counsel for the biological mother articulate how these fundamental rights
were violated and the court is left to speculate. It appears these relate to the same-sex
relationship . . . ." Thus, the court denied Mother's motions to dismiss. The court then
found "by clear and convincing evidence that [Mother] is unfit by reason of conduct
which renders her unable to care properly for her children and that conduct is unlikely to
6

change in the foreseeable future." The court terminated Mother's parental rights as to both
children.

The court's subsequent journal entry states the following facts: (1) R.M. was
physically abused by J.B., who was Mother's partner; (2) his injuries "were horrible and
included significant bruising and swelling of the penis; bruising of the groin, buttocks,
left mid leg, face, forehead and ear with significant bruising of the inner ear; a fracture of
the tibia; and other injuries"; (3) medical witnesses testified that the injuries were not
accidental and were instead the result of blunt-force trauma; (4) during a videotaped
interview, Mother's partner was shown pictures of the injuries and acknowledged the
seriousness of the boy's injuries; (5) a child in need of care case was initiated as a result
of the abuse to the boy; (6) Mother repeatedly violated the provision of her reintegration
plans by maintaining contact with her partner; (7) Mother failed to attend therapy as
required and was inconsistent in her visits with her children; she also failed to take
responsibility for her actions and did not comply with the requirements of her case plan;
(8) the children's therapist recommended that Mother's visits with the children be
suspended because Mother had failed to take the necessary steps for reunification and
was unable to meet the safety and security needs of the children; (9) Mother had not seen
her children since either March or May 2014; and (10) Mother "consistently refused to
accept that J.B. physically abused [her son]. She testified that J.B. had not done anything
wrong and that nothing would change her mind about that opinion. She further stated that
if the children were returned to her, she would re-introduce the children with J.B."

On May 18, 2016, the court entered a posttermination journal entry which
acknowledged that the parental rights of R.M.'s father had been terminated on September
5, 2014; the parental rights of R.B.'s father had been terminated on June 10, 2015; and
Mother's parental rights had been terminated as to both children on September 24, 2015.
Mother timely appealed.

7

I. Does this court have jurisdiction to hear the appeal?

We first address the State's and Grandmother's arguments that this court lacks
jurisdiction to hear Mother's appeal.

The State argues that we lack jurisdiction to hear this appeal because Mother
"raises no issue questioning the adequacy of the evidence from which the court concluded
she is unfit and her parental rights should be terminated, nor did she brief the same." The
State argues that "[s]he has de facto appealed . . . the court's denial of her motion and
amended motion to dismiss, which is not an appealable order." Thus, the State asserts that
Mother has abandoned any issue related to the actual termination of her parental rights
and the "appeal must be dismissed for lack of jurisdiction." Grandmother makes a similar
argument.

"The right to appeal is entirely statutory and is not contained in the United States
or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have
jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by
statute." Butler County R.W.D. No.8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003).
The statute relating to an appeal from a termination of parental rights provides: "An
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. 2016 Supp. 38-2273(a). "If an order in a child in need of care case does not fit
within these five categories, it is not appealable." In re N.A.C., 299 Kan. 1100, Syl. ¶ 3,
329 P.3d 458 (2014).

The State and Grandmother rely on In re D.I.G., 34 Kan. App. 2d 34, 114 P.3d
173 (2005). In that case, however, the father made no challenge on appeal to the
termination of his parental rights and challenged only the earlier temporary custody
order. The court deemed any issue regarding the termination of his parental rights
8

abandoned because it had not been briefed and found that the father had not timely
appealed the temporary custody order and had not designated that order in his notice of
appeal. Accordingly, the court dismissed the father's appeal for lack of jurisdiction. 34
Kan. App. 2d at 36.

This case is unlike D.I.G. in that Mother has timely appealed from a termination of
her parental rights. True, the arguments she makes on appeal were presented to the
district court in a motion to dismiss, and caselaw unequivocally states that the denial of a
motion to dismiss is not an appealable decision. See State v. Webb, 52 Kan. App. 2d 891,
897-98, 378 P.3d 1107 (2016), petition for rev. filed August 22, 2016. But those same
issues were argued on the first day of the termination of parental rights trial and in
Mother's posttrial brief to the district court. They were, in essence, her defense to the
State's motion to terminate her parental rights. The district court denied Mother's motions
to dismiss at trial and journalized that denial in its April 2016 journal entry. Mother has
appealed from "the decision of the Court dated March 21, 2016, terminating her parental
rights and Journal Entry filed April 21, 2016." Accordingly, Mother has timely appealed
the termination of her parental rights as well as the denial of her motions to dismiss.

Mother's arguments were presented as a part of the proceedings at which her
parental rights were terminated. The substance of Mother's arguments challenges the
temporary custody of the children with Saint Francis and eventually the termination of
Mother's parental rights. Indeed, Mother seeks the remedy of having her children
returned to her care. Although she does not directly challenge the quantum of proof, she
raises constitutional and other reasons challenging the termination of her parental rights.
This is the proper time and forum in which to do so.

We also understand the appellees' suggestion of mootness; but we find Mother's
issues on appeal are not moot, as she has challenged the district court's ultimate findings
in support of terminating her parental rights. Compare In re N.A.K., No. 103,188, 2010
9

WL 1610451, at *1 (Kan. App. 2010) (unpublished opinion) (finding the issue of
investigation by law enforcement and consideration of allegations by a district or county
attorney to support the institution of the child in need of care proceeding moot because
parents did not challenge the ultimate termination of their parental rights).

Accordingly, we find that we have jurisdiction to hear Mother's arguments on
appeal. We address in Section V of this opinion whether Mother has abandoned her
challenge to the facts supporting the termination of her parental rights by not briefing that
issue.

II. Were Mother's First Amendment rights under the Establishment Clause violated?

Mother argues that "[b]y relinquishing its authority to Saint Francis Community
Services, the State of Kansas is allowing a religious based organization to establish its
principles upon this family in violation of the First Amendment to the United States
Constitution."

Whether an individual's constitutional rights have been violated is a question of
law over which an appellate court has unlimited review. Johnson v. State, 289 Kan. 642,
649, 215 P.3d 575 (2009).

The First Amendment to the United States Constitution states that "Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof." The guarantee of religious freedom consists of two parts: (1) the Establishment
Clause and (2) the Free Exercise Clause. Purdum v. Purdum, 48 Kan. App. 2d 938, 943-
44, 301 P.3d 718 (2013).

Mother advances only an Establishment Clause claim on appeal. This clause exists
to prevent the states from "sponsorship, financial support, and active involvement . . . in
10

religious activity." Walz v. Tax Commission of New York, 397 U.S. 664, 668, 90 S. Ct.
1409, 25 L. Ed. 2d 697 (1970). But the Establishment Clause does not mandate absolute
separation between church and state. Walz, 397 U.S. at 670. Instead, the Clause mandates
"official neutrality in religious disputes, which the United States Supreme Court has
characterized as one of 'benevolent neutrality which will permit religious exercise to exist
without sponsorship and without interference.'" Purdum, 48 Kan. App. 2d at 944 (quoting
Walz, 397 U.S. at 669). We have recognized that "[s]ome relationship between
government and religious organizations is inevitable." In re Tax Exemption Application
of Westboro Baptist Church, 40 Kan. App. 2d 27, 44, 189 P.3d 535 (2008). A more
distant relationship may be appropriate when the subjects of the alleged violation are
children. See Lee v. Weisman, 505 U.S. 577, 592, 112 S. Ct. 2649, 120 L. Ed. 2d 467
(1992) (noting the "heightened concerns with protecting freedom of conscience from
subtle coercive pressure in the elementary and secondary public schools").

Although the Kansas Supreme Court has not decided Establishment Clause
questions, the United States Supreme Court has often addressed them. In the context of
public education, which we find analogous here, it has used three different tests to
evaluate state actions challenged on Establishment Clause grounds: the three-pronged
test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745
(1971), summarized below; the "endorsement" test of County of Allegheny v. American
Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592-94, 109 S. Ct.
3086, 106 L. Ed. 2d 472 (1989); and the "coercion" test of Lee, 505 U.S. at 592-96. See
Tangipahoa Parish Bd. of Educ. v. Freiler, 530 U.S. 1251, 1252, 120 S. Ct. 2706, 2707,
147 L. Ed. 2d 974 (2000) (order, cert. denied) (Scalia, J., dissenting).

Our court has traditionally applied Lemon's "much-maligned, though exceptionally
durable" test. Robertson v. Call, No. 112,132, 2015 WL 326677, at *6 (Kan. App.)
(unpublished opinion), rev. denied 301 Kan. 1047 (2015). See Purdum, 48 Kan. App. 2d
at 948; In re Westboro Baptist Church, 40 Kan. App. 2d at 44. We do so here as well.
11

Under that three-pronged test, we determine whether State action has violated the
Establishment Clause by determining first, whether the statute has a secular legislative
purpose; second, whether its principal or primary effect advances religion; and third,
whether the statute fosters an excessive government entanglement with religion. Lemon,
403 U.S. at 612-13.

The record shows that the son's abuse by Mother's partner occurred on June 17,
2013, and the children were placed by Saint Francis with a family for approximately 9
weeks while his broken leg healed. But by August 23, 2013, both children were residing
with their maternal grandmother, where they remain.

Mother argues that the State violated her rights under the Establishment Clause by
contracting with Saint Francis, an Episcopalian organization, to provide childcare
services on behalf of the State. She contends that "[b]y relinquishing its authority to Saint
Francis Community Services, the State of Kansas is allowing a religious based
organization to establish its principles upon this family." In support, Mother contends that
Saint Francis' website "indicates that the imposition of Christian religious principles are
being forced upon people such as [Mother]." But no citation to the record is made and no
part of that website is included in Mother's brief; thus, this conclusory assertion is
unsupported by fact.

Mother has shown no evidence that Saint Francis encouraged, let alone coerced,
her children into participating in religious activities or conditioned their receipt of any
benefits on such participation. None of the case plans or court orders contains any
reference to religious acts or beliefs or requires Mother or her children to do anything of a
religious nature. Mother has not shown anything of a religious nature in the homes her
children have been placed in. Thus Mother's facts are not like those in the case she relies
on, Teen Ranch, Inc. v. Udow, 479 F.3d 403 (6th Cir. 2007), cert. denied 552 U.S. 1039
(2007), where the group home at which the children were placed consistently led children
12

in religious activities. There, the court found the children's ability to opt out of religious
activities conducted by the group home was not enough to avoid an Establishment Clause
violation. 479 F.3d at 409-10. But the constitutional concerns in Teen Ranch are not
present here.

Mother argues that the State's contract with Saint Francis violates Mother's rights
under the Establishment Clause merely because Saint Francis is a faith-based
organization. But Mother cites no legal support for this assertion. Mother's focus on the
status, rather than on the acts, of Saint Francis is misplaced, as the Supreme Court has
consistently rejected the premise that government conduct which in some manner aids an
institution with a religious affiliation violates the Establishment Clause. Lynch v.
Donnelly, 465 U.S. 668, 683, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984) (finding "'not
every [practice] that confers an "indirect", "remote", or "incidental" benefit upon
[religion] is, for that reason alone, constitutionally invalid.'"; Mueller v. Allen, 463 U.S.
388, 393, 103 S. Ct. 3062, 77 L. Ed. 2d 721 (1983) (noting Court's consistent rejection of
the argument that "'any program which in some manner aids an institution with a
religious affiliation' violates the Establishment Clause"); Hunt v. McNair, 413 U.S. 734,
742, 93 S. Ct. 2868, 37 L. Ed. 2d 923 (1973) (stating one fixed principle in this field is
our consistent rejection of the argument that "any program which in some manner aids an
institution with a religious affiliation" violates the Establishment Clause).

Application of the Lemon test to the facts of record confirms that Mother has not
met her burden of showing that the State violated the Establishment Clause. First, the
contract states that its purpose is "Family Preservation Services." No other purpose has
been shown; thus, the contract between DCF and Saint Francis has a predominant secular
purpose. Secondly, for government conduct "to have forbidden 'effects' under Lemon, it
must be fair to say that the government itself has advanced religion through its own
activities and influence." Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 337,
107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987). But no evidence suggests that the State or Saint
13

Francis has somehow promoted a religious message, as no evidence shows that Saint
Francis in any way encouraged Mother or her children in any religious activities or
views. Thus the State's contract has not been shown to have had the principal or primary
effect of endorsing religion. Lastly, the contract does not result in any excessive
entanglement between the State and religion. Mother has presented no evidence that Saint
Francis has inserted any religion into the contractual relationship, and "[e]ntanglement
must be 'excessive' before it runs afoul of the Establishment Clause." Agostini v. Felton,
521 U.S. 203, 233, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997). Excessive entanglement
requires more than mere interaction or administrative cooperation between church and
state. Accordingly, we find no error in the district court's finding that Mother has shown
no violation of her rights under the Establishment Clause.

Mother also asserts the same constitutional violations of her children's rights.
Assuming, without deciding, that Mother has standing to assert such violations, we reach
the same conclusions throughout this decision regarding their rights as we reach
regarding Mother's rights.

III. Was Mother's constitutional due process right to raise her children violated?

Mother next argues that she was denied due process. As above, we review the
district court's decision on this issue de novo. Johnson, 289 Kan. at 649.

When assessing a due process claim, Kansas courts take a two-step approach. We
first determine whether the State has deprived the individual of life, liberty, or property.
289 Kan. at 649. If such a deprivation has occurred, we then determine the extent and
nature of the process that is due. Hogue v. Bruce, 279 Kan. 848, 850-51, 113 P.3d 234
(2005).

14

Mother had a protected liberty interest in raising her children. "[T]he interest of
parents in the care, custody, and control of their children—is perhaps the oldest of the
fundamental liberty interests recognized" by the United States Supreme Court. Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). That liberty interest
remains although a parent has lost temporary custody of a child:

"The fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the State. . . . When the State
moves to destroy weakened familial bonds, it must provide the parents with
fundamentally fair procedures." Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982).

Accordingly, we focus on whether the process Mother was given fell short of the
process she was due. "Due process is not a static concept; rather, its requirements vary to
assure the basic fairness of each particular action according to its circumstances." In re
J.L.D., 14 Kan.App.2d 487, 490, 794 P.2d 319 (2009), disapproved on other grounds by
In re Adoption of B.J.M., 42 Kan. App. 2d 77, 209 P.3d 200 (2009).

Mother argues that her parental rights were essentially terminated without due
process in three ways: (1) Her permanency plans stated that there were to be mandatory
child-parent visits once per week, but the State did not honor the visits; (2) "[t]he Court,
DCF and Saint Francis . . . adopted as fact mere speculation that the children would have
future contact with [Mother's partner] if they were returned to . . . [Mother]"; and (3) the
trial judge partly based his decision to terminate on the fact that Mother continued to
have contact with her partner, even though the judge had lifted a no-contact order during
the reintegration process.

We are not persuaded by these arguments. First, the permanency plans' statements
that there were to be weekly, mandatory child-parent visits appear to have been in error.
15

A Saint Francis employee testified that inclusion of mandatory weekly visitations in
Mother's permanency plans was an oversight that should have been caught and corrected
early in the reintegration plan. That testimony was not contradicted. Moreover, each case
planning conference stated that visits would be at the discretion of Saint Francis.

Second, the record fails to support Mother's claim that the district court, DCF, and
Saint Francis merely speculated that the children would have future contact with
Mother's partner if they were returned to Mother. Mother's own trial testimony confirms
the nonspeculative nature of that conclusion. Mother admitted that she had maintained
contact with her partner throughout the reintegration process in violation of her case
plans and that she would reintroduce that partner into the children's lives if she were
granted custody. Mother consistently refused to accept that her partner had physically
abused her son. She testified that her partner had not done anything wrong and that
nothing would change her mind about that opinion.

Third, Mother complains that the trial judge focused on her continued contact with
her partner, even though the judge had previously lifted a no-contact order between the
two of them. But the no-contact order was apparently issued only in the criminal case
against the partner arising out of her abuse of Mother's son. Although that order was
apparently lifted in the criminal case after Mother's partner pleaded guilty, each and every
case plan in the children's child in need of care case required Mother to have no contact
with her partner. It was clearly communicated to Mother that a condition of her
reintegration with her children was that she was to terminate her relationship with her
son's abuser, yet she steadfastly refused to meet that condition. The trial judge was
correct to consider that refusal.

Mother also alleges that her parental rights were "essentially terminated" when her
visitation rights were suspended. We disagree. Her parental rights were terminated only
after a 3-day trial that afforded her a full and fair opportunity in which to present her
16

case. Prior to her trial, visitation was suspended at times due to Mother's non-
cooperation. For example, the March 2014 report states that Mother's visitation rights had
been suspended because the son's therapist had determined that visits were no longer
beneficial to the children since Mother was still in contact with her partner. The May
2014 report states Mother had missed her last visitation with the children. The August
2014 reports indicated Mother was uncooperative and had stated she no longer wanted
visits with her children, and it concluded she was not actively seeking reintegration.
Accordingly, we find no error in the district court's rejection of Mother's due process
claims.

IV. Did the State discriminate against Mother based on her sexual orientation?

Mother next contends that the State discriminated against her by permitting St.
Francis to consider her sexual orientation in its reintegration plan.

On appeal, Mother relies on the Equal Protection Clause and related cases, yet her
motions to dismiss, which raised this issue before the district court, raised no
constitutional issue as to sexual orientation. Instead, Mother cited only K.S.A. 44-1001
and K.S.A. 44-1009 of the Kansas Act Against Discrimination, yet made no attempt to
apply those statutes to the facts of the case. Similarly, Mother's proposed findings of fact
and conclusions of law submitted to the district court after her termination trial raised no
constitutional issue as to sexual orientation. Her constitutional grounds for reversal are
thus asserted for the first time on appeal.

Constitutional grounds for reversal asserted for the first time on appeal are not
properly before the appellate court for review. State v. Godfrey, 301 Kan. 1041, 1043,
350 P.3d 1068 (2015). Although that rule has some exceptions, Supreme Court Rule
6.02(a)(5) (2017 Kan. S. Ct. R. 34) requires an appellant to explain why an issue not
raised below should be considered for the first time on appeal. Mother makes no attempt
17

to comply with that rule, and we have been tasked to strictly enforce it. Godfrey, 301
Kan. at 1043-44. Thus, Mother's constitutional claim of discrimination is not preserved
for appellate review.

V. Was the termination of Mother's parental rights supported by clear and convincing
evidence?

Has Mother waived this issue?

We next discuss the State's argument that Mother has not challenged the district
court's factual basis for the termination of her parental rights. Instead, Mother has argued
nearly exclusively the theories from her motions to dismiss. In the conclusion of her
brief, however, Mother asserts "[i]t was not shown by clear and convincing evidence that
the Natural Mother-Appellant was unfit and could not be successfully reintegrated with
her children."

An issue not briefed by an appellant is deemed waived or abandoned. Superior
Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011); see In re D.I.G.,
34 Kan. App. 2d 34, 35, 114 P.3d 173 (2005). Even though Mother argues that her
parental rights were terminated because she was in a same-sex relationship, she fails to
address the district court's stated reasons for terminating her parental rights, which are
discussed in depth below. We agree with the State that we would be on solid ground to
find that Mother has abandoned any challenge to the factual basis for the termination of
her parental rights. Nonetheless, in the context of Mother's arguments, we liberally
construe her claim as arguing that the district court's reasons were pretextual and that her
same-sex relationship was the real reason for the termination of her parental rights.
Accordingly, in the interest of justice, we examine the district court's reasons for
termination.

18

Our standard of review

A 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. 2016 Supp. 38-2269(a). In making
such a determination, the court considers certain factors listed in the relevant statute,
K.S.A. 2016 Supp. 38-2269(b). When a child is not in the physical custody of a parent,
the court considers additional factors, such as failure to maintain regular visitation and
failure to carry out a reasonable plan directed toward reintegration. K.S.A. 2016 Supp.
38-2269(c)(2) and (3). The existence of any one factor may establish grounds for
termination of parental rights. K.S.A. 2016 Supp. 38-2269(f).

We review the evidence in the light most favorable to the State.

"[W]hen an appellate court reviews a district court's determination that a child is in need
of care, it should 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 child was a [child in need
of care]." In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).

In making our determination, we do not weigh conflicting evidence, judge the credibility
of witnesses, or reconsider questions of fact. 286 Kan. at 705.

The district court's decision

The district court emphasized that Mother never acknowledged that her partner
had injured her child, that Mother had defied the terms of the reintegration plan requiring
her to terminate her relationship with that partner, and that Mother had stated her
intention to reintroduce that partner into her children's lives:
19

"The abuse of [the son] occurred while he was in the custody of his mother. She
is the one that placed him in the care of [her partner] and as a parent, bears some
responsibility. The fact that she fails to acknowledge that her partner perpetrated this
terrible beating of her small child in spite of the overwhelming evidence and that if
custody is returned to her, intends to reintroduce [her partner] into her children's lives,
meets the criteria of 38-2269(b) (2, 4, & 8). Her attitude and conduct since the children
were placed in protective custody clearly demonstrates a lack of effort on her part to
adjust her circumstances to meet the needs of her children. The case plans formulated to
reintegrate the children failed due to her lack of participation and defiance of the
requirement that she terminate her relationship with [her partner]. Finally, these children
have had little or no contact with [Mother] for some 22 to 24 months as a result of
[Mother's] intentional decision not to abide reasonable requirements of the case plan."

The court found clear and convincing evidence that Mother was unfit and that her
conduct was unlikely to change in the foreseeable future. Its decision specifically relied
on K.S.A. 2016 Supp. 38-2269(b)(2), (4), and (8), though it also referenced K.S.A. 2016
Supp. 38-2269(b)(7) and (9) and (c)(2) and (3).

Our review of two factors

Although Grandmother and the State point to multiple factors supporting the
district court's decision, we address only two.

First, K.S.A. 2016 Supp. 38-2269(b)(4) directs the court to consider "physical,
mental or emotional abuse or neglect or sexual abuse of a child." Here, there is no doubt
that Mother's partner abused or neglected the son after Mother left him in her care. The
son's injuries, which included a broken leg, bruising to his inner ear, extreme swelling in
his penis, and injuries to his scrotum and groin, were not present before Mother went to
work. Those injuries were not consistent with ordinary childhood bumps and bruises and
were indicative of child abuse.

20

Kansas recognizes a natural and common-law duty to protect one's children from
abuse. In re S.D., 41 Kan. App. 2d 780, 788, 204 P.3d 1182 (2009) (citing State v. Edgar,
281 Kan. 47, 68, 127 P.3d 1016 [2006]). Our criminal statutes impose a duty on parents
to protect their children from abuse as well. K.S.A. 2016 Supp. 21-5601(a)-(b) (child
endangerment and aggravated child endangerment); K.S.A. 2016 Supp. 21-5602 (child
abuse). Even when the parent whose rights are at issue does not commit the abuse
suffered by a child, a parent may be held responsible for failing to take proper
precautions to protect a child from abuse. In re A.B., 12 Kan. App. 2d 391, 392, 746 P.2d
96 (1987). And a district court that observes the abuse of one child "should not be forced
to refrain from taking action until the next child suffers injury." 12 Kan. App. 2d at 392.
This factor weighs heavily against Mother.

Second, we consider K.S.A. 2016 Supp. 38-2269(b)(8), which states that the court
may find "lack of effort on the part of the parent to adjust the parent's circumstances,
conduct or conditions to meet the needs of the child." The district court's main issue with
Mother during the reintegration process was Mother's refusal or failure to terminate her
relationship with her abusive partner. At trial, Mother acknowledged that despite the
evidence and the fact that her partner had pled guilty to criminal acts against her son, she
did not believe that her partner abused her son. Mother admitted that she continued her
relationship with her partner during the reintegration efforts and testified that she would
reintroduce her partner into the children's lives if she were granted custody.

Throughout the reintegration process and trial, DCF and Saint Francis made it
clear to Mother that she would have to choose between her abusive partner and her
children. Mother consistently chose her partner, which in turn caused her to have little to
no contact with her children. By refusing to end her relationship with the person who
abused her child, Mother failed to adjust her conduct to meet her children's basic needs
for safety. Mother must now live with the consequences of that choice. This factor
independently warrants termination of Mother's parental rights. See, e.g., In re C.W., No.
21

113,547, 2015 WL 5311260, at *18-19 (Kan. App. 2015) (unpublished opinion) (finding
Mother's decision to remain with Father despite credible allegations Father sexually
abused child demonstrated unfitness); In re D.M., No. 112,445, 2015 WL 2414508, at *7
(Kan. App. 2015) (unpublished opinion) (finding Mother's violations of a no-contact
order with her nonabusive boyfriend did not prove her unfit, but stating "[h]ad the
evidence directly established that [the boyfriend] was abusive toward Mother or the
children, our decision would be different").

Although other factors addressed by the district court and the State may well be
supported by clear and convincing evidence, we find it unnecessary to address them. The
two factors addressed above are shown by clear and convincing evidence, and a rational
factfinder could have found it highly probable that Mother is unfit by reason of conduct
or condition which renders her unable to care properly for her children.

Mother has shown no inclination to change her conduct, but to the contrary, has
stated her intention not to change; thus, her unfitness is unlikely to change in the
foreseeable future.

Was the termination in the best interests of the children? That determination is
entrusted to the district court's sound discretion based on a preponderance of the
evidence. In re R.S., 50 Kan. App. 2d 1105, 1115-16, 336 P.3d 903 (2014). The district
court understood the relevant facts and applied the proper law. And its conclusion is one
other judicial officers would have reached under comparable circumstances. So we find
no abuse of discretion in the district court's decision that the termination of Mother's
parental rights was in the best interests of the children. Therefore, we affirm the
termination of Mother's parental rights as to these children.

Affirmed.