Printable Format38-2269. Factors to be considered in termination of parental rights; appointment of permanent custodian. (a) When the child has been adjudicated to be a child in need of care, the court may terminate parental rights or appoint a permanent custodian 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.
(b) In making a determination of unfitness the court shall consider, but is not limited to, the following, if applicable:
(1) Emotional illness, mental illness, mental deficiency or physical disability of the parent, of such duration or nature as to render the parent unable to care for the ongoing physical, mental and emotional needs of the child;
(2) conduct toward a child of a physically, emotionally or sexually cruel or abusive nature;
(3) the use of intoxicating liquors or narcotic or dangerous drugs of such duration or nature as to render the parent unable to care for the ongoing physical, mental or emotional needs of the child;
(4) physical, mental or emotional abuse or neglect or sexual abuse of a child;
(5) conviction of a felony and imprisonment;
(6) unexplained injury or death of another child or stepchild of the parent or any child in the care of the parent at the time of injury or death;
(7) failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family;
(8) 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; and
(9) whether, as a result of the actions or inactions attributable to the parent and one or more of the factors listed in subsection (c) apply, the child has been in the custody of the secretary and placed with neither parent for 15 of the most recent 22 months beginning 60 days after the date on which a child in the secretary's custody was removed from the child's home.
(c) In addition to the foregoing, when a child is not in the physical custody of a parent, the court, shall consider, but is not limited to, the following:
(1) Failure to assure care of the child in the 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 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.
In making the above determination, the court may disregard incidental visitations, contacts, communications or contributions.
(d) A finding of unfitness may be made as provided in this section if the court finds that the parents have abandoned the child, the custody of the child was surrendered pursuant to K.S.A. 38-2282, and amendments thereto, or the child was left under such circumstances that the identity of the parents is unknown and cannot be ascertained, despite diligent searching, and the parents have not come forward to claim the child within three months after the child is found.
(e) If a person is convicted of a felony in which sexual intercourse occurred, or if a juvenile is adjudicated a juvenile offender because of an act which, if committed by an adult, would be a felony in which sexual intercourse occurred, and as a result of the sexual intercourse, a child is conceived, a finding of unfitness may be made.
(f) The existence of any one of the above factors standing alone may, but does not necessarily, establish grounds for termination of parental rights.
(g) (1) If the court makes a finding of unfitness, the court shall consider whether termination of parental rights as requested in the petition or motion is in the best interests of the child. In making the 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. A termination of parental rights under the code shall not terminate the right of a child to inherit from or through a parent. Upon such termination all rights of the parent to such child, including, such parent's right to inherit from or through such child, shall cease.
(2) If the court terminates parental rights, the court may authorize adoption pursuant to K.S.A. 38-2270, and amendments thereto, appointment of a permanent custodian pursuant to K.S.A. 38-2272, and amendments thereto, or continued permanency planning.
(3) If the court does not terminate parental rights, the court may authorize appointment of a permanent custodian pursuant to K.S.A. 38-2272, and amendments thereto, or continued permanency planning.
(h) If a parent is convicted of an offense as provided in K.S.A. 38-2271(a)(7), and amendments thereto, or is adjudicated a juvenile offender because of an act which if committed by an adult would be an offense as provided in K.S.A. 38-2271(a)(7), and amendments thereto, and if the victim was the other parent of a child, the court may disregard such convicted or adjudicated parent's opinions or wishes in regard to the placement of such child.
(i) A record shall be made of the proceedings.
(j) When adoption, proceedings to appoint a permanent custodian or continued permanency planning has been authorized, the person or agency awarded custody of the child shall within 30 days submit a written plan for permanent placement which shall include measurable objectives and time schedules.
History: L. 2006, ch. 200, § 64; L. 2008, ch. 169, § 19; L. 2018, ch. 107, § 13; July 1.
Source or Prior Law:
38-1583, 38-1586.
Law Review and Bar Journal References:
Kevin M. Smith, Independent Parental Fitness Experts in Child in Need of Care (CINC) Cases: More Objectivity in Parental Termination Cases Is in Everyone's Best Interests, 71 U. Kan. L. Rev. 729 (2023).
Makaela Stevens, When the Child Adopts the Parents: Considering Attachment and Psychological-Parent Doctrine in Kansas Adoptions, 72 U. Kan. L. Rev. 247 (2023).
Hon. Kevin M. Smith, The Consequences of the Legal Profession's Mentoring Gap and How to Close It, 72 U. Kan. L. Rev. 635 (2024).
CASE ANNOTATIONS
1. Mentioned, there is no right to appeal from district court judgment regarding SRS placement with potential adoptive families. In re A.F., 38 Kan. App. 2d 742, 745, 172 P.3d 63 (2007).
2. Use of a lower but stringent burden of proof in cases involving non-Indian parents does not violate equal protection. In re A.A., 38 Kan. App. 2d 1100, 1103, 176 P.3d 237 (2008).
3. Cited; consensual appointment of permanent guardian under K.S.A. 38-1587 does not terminate parent's obligation to support child. State ex rel. Secretary of SRS v. Bohrer, 286 Kan. 898, 913, 189 P.3d 1157 (2008).
4. Cited; clear and convincing evidence showed father's right in children should be terminated and termination in best interest of children. In re. B.E.Y., 40 Kan. App. 2d 842 to 844, 196 P.3d 439 (2008).
5. Parent's failure to protect child from abuse constitutes grounds to sever parental rights per section K.S.A. 38-2269(b)(2). In re S.D., 41 Kan. App. 2d 780, 204 P.3d 1182 (2009).
6. Termination of mother's parental rights upheld; presumptions under K.S.A. 60-414 discussed. In re J.S., 42 Kan. App. 2d 113, 208 P.3d 802 (2009).
7. Mother's parental rights properly terminated. In re L.B., 42 Kan. App. 2d 837, 217 P.3d 1004 (2009).
8. Determination of parental unfitness must be made under the entire statutory scheme. In re K.P., 44 Kan. App. 2d. 316, 235 P.3d 1255 (2010).
9. District court failed to consider that termination of parental rights was in the best interests of children; case remanded. In re K.W., 45 Kan. App. 2d 353, 246 P.3d 1021 (2011).
10. Incarceration alone was not a sufficient basis to find father unfit and terminate parental rights. In re T.H., 60 Kan. App. 2d 536, 494 P.3d 851 (2021).
11. When reviewing findings of parental unfitness, appellate courts view all the evidence in a light most favorable to the state and decide by clear and convincing evidence that the parent was unfit, but the court does not weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. Int. of D.G., 319 Kan. 446, 452, 555 P.3d 719 (2024).