In re K.L.B.

No. 118,563
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interests of
K.L.B. and A.S.B.,
Minor Children.
SYLLABUS BY THE COURT
1.
A party may raise subject matter jurisdiction at any time before any court.
2.
The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA) is to avoid jurisdictional competition between courts of different states and to
make sure only one state at a time has jurisdiction over child custody matters in regard to
a particular family.
3.
If a court in another state has not commenced a proceeding exercising jurisdiction
over child custody matters in regard to a particular family or has otherwise declined to
exercise such jurisdiction, there is no jurisdictional competition with a state that has
exercised such jurisdiction in accordance with the UCCJEA.
4.
If a state asserts jurisdiction on an emergency basis pursuant to the UCCJEA and
no proceeding exists in any other state which might have exercised jurisdiction over the
same family, the orders issued by the court exercising emergency jurisdiction become a
final determination.
1
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed October 19, 2018.
Affirmed.
Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellant natural mother.
Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.
Before BRUNS, P.J., MCANANY, J., and BURGESS, S.J.
BURGESS, J.: M.K. (Mother) is the mother of K.L.B. (YOB: 2013) and A.S.B.
(YOB: 2015). The family is originally from Kentucky. After being in Kansas for a week,
the children were taken into State custody. Mother was eventually extradited to Kentucky
on Kentucky charges. The Sedgwick County District Court ultimately terminated
Mother's parental rights. Mother appeals, arguing (1) the district court did not properly
exercise jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA); and (2) substantial competent evidence did not support the court's finding
that she was unfit and would remain so for the foreseeable future. Finding no error, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 6, 2016, deputies responded to a suspicious character call in Wichita,
Kansas. On arrival at the scene, they found Mother, who began making "suicidal
statements." She told the deputies that her two children, K.L.B. and A.S.B., were staying
with a couple she had met the day before at a QuikTrip. Father had also recently been
arrested and extradited to Kentucky. Mother was hospitalized, and a deputy took K.L.B.
and A.S.B. into police protective custody and transported them to the Wichita Children's
Home (WCH). WCH reported that the children were "extremely dirty, having full diapers
and wearing ill-fitting clothing" when they arrived.
2
At the hospital, Mother stated that she, Father, and the two children had moved to
Wichita about a week earlier. They were originally from Kentucky but had left because
Mother was having legal problems as a result of a theft charge. Mother was on probation
for that charge. The family had passed through Ohio, West Virginia, Pennsylvania, and
Oklahoma, before deciding to start a new life in Wichita. Mother stated they had no
friends or family in Kansas.
Mother stated Father had been arrested on the day they arrived in Wichita. After
that, she had stayed at a motel with the children for five days. During that time, their
room was broken into twice. Mother then spent the night at the home of a couple she met
at QuikTrip. Mother did not know the couple's last name. Mother lent her truck to the
couple's son. When he did not return, Mother left her children with the couple and went
to look for the truck. That is when police found her.
Mother also has a 20-year-old daughter and a 17-year-old son still in Kentucky.
She left the son in the care of her older daughter, but Kentucky Child Protective Services
(CPS) had taken him into custody. Mother stated she did not want to return to Kentucky
because CPS was also trying to take custody of K.L.B. and A.S.B.
The State filed a child in need of care (CINC) petition in Sedgwick County. After
a hearing on July 11, 2016, the district court entered temporary custody orders. The form
used for the district court's journal entry included standard findings that jurisdiction and
venue were proper, and that the court had original jurisdiction under K.S.A. 2016 Supp.
38-2203. The district court also ordered the district attorney's office to contact the
appropriate court in Kentucky.
Several weeks later, the district court held a disposition hearing. At the hearing,
Mother answered no contest to the allegations in the CINC petition. The State told the
district court that it had contacted officials and a child welfare agency in Kentucky, and
3
they had conveyed that they did not intend to assume jurisdiction. Mother requested a
hearing about the UCCJEA with officials from Kentucky to learn why they were
declining jurisdiction. The district court asked Mother if she would be okay with a
"judge-to-judge" call to verify that the Kentucky court was not retaining jurisdiction.
Mother agreed as along as she and her counsel could be present. The district court
continued disposition.
Two weeks later, on August 19, 2016, the district court held another disposition
hearing. The court noted it had continued disposition to determine whether Kentucky
wished to exercise jurisdiction since both parents were from Kentucky and the children
had lived there for a substantial time. The district court explained that it had contacted the
appropriate court in Kentucky. The Kentucky court did not want a hearing or anything on
the record and declined to exercise jurisdiction. The State advised that the district court
had emergency jurisdiction and its jurisdiction continued because Kentucky had declined
to take over the case. In its orders, the district court found that the "Family Law Court in
Hardin County, Kentucky, has been made aware of this CINC proceeding and has
declined to exercise their jurisdiction over this matter."
The State eventually moved to terminate Mother's parental rights. The district
court held a termination hearing on August 2, 2017. At the hearing, Mother testified that
she was currently living at The Women's Healing Place in Louisville, Kentucky, and she
had been there since March 2017. Mother explained The Women's Healing Place was a
rehabilitation center for women. Mother was placed there as a condition of her parole
from a felony theft conviction in Kentucky. Before living in the rehab center, Mother was
in jail in Kansas from August 2016 to January 2017 because she did not want to sign the
extradition papers and leave her children. Once Mother returned to Kentucky, she was in
jail from January 2017 until March 2017.
4
Mother told the district court that she left Kentucky with Father and the girls
around the beginning of June. Mother knew she should not have left Kentucky because
she was on probation, but she was using drugs and alcohol at that time and made bad
decisions. According to Mother, the family first went to Oklahoma and went camping
with some friends there. The family arrived in Wichita at the end of June and was
planning to continue on to Colorado for another week or so of camping. Before leaving
for Colorado, Father was arrested on an outstanding Kentucky warrant in Kansas.
In early July, sheriff's deputies took Mother to the hospital because she was high
and "psychotic." At the time, Mother was using methamphetamines and Xanax. Mother
admitted to using methamphetamine while she was taking care of the minor children.
Mother explained she began using methamphetamine and pain pills a few months before
she was arrested. Mother testified that she had not used alcohol or drugs since being
placed in custody and had never failed a urinalysis test at the rehab center. She stated she
stopped using because the "pain of being separated from [her children] is the most heart-
wrenching pain [she's] ever been through."
Mother testified that K.L.B. was autistic. Mother had gotten K.L.B. diagnosed
while living in Kentucky. K.L.B. had developmental delays, would not make eye contact,
and had been non-verbal. In Kentucky, a speech therapist and a developmental
interventionist would come to the house and work with K.L.B. a few days each week.
K.L.B. did not receive any of these services while the family was in Oklahoma.
Mother admitted that she and Father had had domestic violence issues in the past.
In 2014, she had tried to get an emergency order of protection against Father. Father had
pushed and spit on Mother and yelled at one of her older children. Shortly before arriving
in Wichita in 2016, Father got angry at K.L.B. because she was jumping on him, and he
pushed her in the chest. Father also had a history of substance abuse, and Mother knew he
5
was using methamphetamines and heroin. Mother ended their relationship while she was
in jail in Kansas.
Mother testified she was doing well at her rehab center and she had complied with
her program. According to Mother, she could be out in two or three months if she stayed
in compliance. The rehab center provided transitional support services and helped
residents find housing, employment, and transportation. Mother testified she planned to
move to Wichita when she was released from the rehab center. She stated she had no
family support in Wichita, but she had met a woman at church after her girls went into
State custody in Kansas.
Mother testified that she had not seen either K.L.B. or A.S.B. in about a year.
K.L.B. had been 3 years old and A.S.B. had been 14 months old the last time Mother saw
them. Mother believed it was still best for the children to be with her, even if it took
another year to reintegrate. Because Mother had worked as a residential assistant in a
home for special needs adults, she believed she knew what it would take to take care of
K.L.B. But Mother admitted she still needed to learn sign language because K.L.B. had
been learning sign language in her foster home.
Christina Somers, a licensed permanency specialist at St. Francis, also testified at
the hearing. She was assigned to K.L.B. and A.S.B.'s case in July 2016. After meeting
with Mother, Somers developed case plan tasks that Mother would need to complete to
achieve reintegration. These included: (1) complete a SACK assessment and follow any
recommendations; (2) complete parenting, budgeting, and nutrition classes; (3) obtain
full-time employment; (4) maintain safe and suitable housing; (5) fulfill all obligations
arising from her criminal charges; and (6) maintain contact with St. Francis. Somers
explained that the main obstacles Mother needed to overcome to achieve reintegration
were stability, sobriety, housing, and employment.
6
Somers testified that Mother had three supervised visits with the children at the
start of the case. But in August, Mother was arrested on her Kentucky warrants. Somers
said Mother's arrest complicated things, but she continued to work with Mother to
achieve reintegration. While Mother was in jail in Kansas, Somers tried to set Mother up
with a social worker and arrange for Mother to take parenting, budgeting, and nutrition
classes. Somers also tried to get Mother on the list for a SACK assessment so she could
start drug treatment in jail. Somers continued to meet with Mother in jail and provided
her with some of the sign language that K.L.B. was learning.
Somers testified that Mother was extradited to Kentucky in January. After
extradition, Somers maintained contact with Mother and helped Mother to complete court
orders. When Mother was released to The Women's Healing Place, Somers submitted a
referral for Mother's SACK assessment. Somers also tried to find parenting and
budgeting classes for Mother to take because Kentucky did not offer those classes.
Somers told the district court that K.L.B. had had a severe regression in her
behavior after a 15-minute visit with Father in December 2016. K.L.B. took about six
months to recover. Because of this, Somers did not want to resume visits with Mother
without input from K.L.B.'s therapist.
According to Somers, The Women's Healing Place had told her that Mother's
earliest possible release date was late October or early November, though it could be as
late as December. Somers testified Mother would need to maintain sobriety, housing, and
employment for at least six to nine months before reintegration became an option. But
Somers added that it would be one to two years before she was confident that Mother
could meet the children's needs, particularly given K.L.B.'s autism. Under those
circumstances, the best case scenario was that reintegration would not be an option until a
year after Mother had come back to Wichita.
7
Somers believed that Mother was unfit because she had no home, she had no job,
and she had not seen either child in over a year. Somers also did not believe Mother
would become fit in the foreseeable future. Somers explained that she kept seeing the
same behaviors in Mother she had seen in the past. For example, Mother had never told
Somers she was planning to move back to Wichita. Somers added that if reintegration
was put off for another year, A.S.B. would have spent two-thirds of her life in State
custody.
Somers also believed that it was in the best interests of the children to terminate
Mother's parental rights. She explained that the children had been in custody for over a
year. They did not remember Mother, and they did not ask for her. Somers also could not
guarantee that Mother could provide a safe, loving home for K.L.B. now or in the future.
Jan Karsak, Mother's friend, also testified at the hearing. Karsak testified she
volunteered for her church's ministries for homeless and at-risk people. Karsak met
Mother at a Bible study shortly after the children went into custody and stayed in touch
with Mother over the course of the past year. Karsak stated Mother seemed remorseful
and had changed her behavior to address her problems. Karsak also felt that Mother had
tried harder than anyone Karsak had ever worked with to get her children back. Karsak
had also offered to let Mother live with her after she was released from The Women's
Healing Place.
At the end of the hearing, the district court terminated Mother's parental rights.
The district court found Mother unfit under these factors: (1) K.S.A. 2017 Supp. 38-
2269(b)(3), use of intoxicating liquors or narcotics; (2) K.S.A. 2017 Supp. 38-2269(b)(5),
conviction of a felony and imprisonment; (3) K.S.A. 2017 Supp. 38-2269(b)(7), failure of
reasonable efforts made by appropriate public or private agencies to rehabilitate the
family; (4) K.S.A. 2017 Supp. 38-2269(b)(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;
8
and (5) K.S.A. 2017 Supp. 38-2269(c)(3), failure to carry out a reasonable plan approved
by the court directed toward the integration of the children into a parental home. The
district court also found that Mother was unlikely to become fit in the foreseeable future,
and it was in the best interests of the children to terminate Mother's parental rights.
Mother appeals. The district court also terminated Father's parental rights, but he is
not part of this appeal.
DID THE DISTRICT COURT FAIL TO PROPERLY
EXERCISE JURISDICTION UNDER THE UCCJEA?
On appeal, Mother argues that the district court lacked jurisdiction under the
UCCJEA to terminate her parental rights. She contends that the district court did not
properly invoke temporary emergency jurisdiction under K.S.A. 2017 Supp. 23-37,204.
And even if the district court had properly exercised temporary emergency jurisdiction,
the Kansas court obtained no order from Kentucky allowing it to retain jurisdiction.
The State responds that this court lacks jurisdiction to hear Mother's argument
because Mother's notice of appeal does not comply with statutory requirements.
Alternatively, it argues that the district court properly determined it had jurisdiction over
the case. The State notes that at the time of the disposition hearing, both Mother and
Father were incarcerated, and Kentucky had declined jurisdiction.
Standard of Review
Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015).
9
Does this court have jurisdiction to hear Mother's appeal?
Before this court can reach the merits of Mother's argument that the district court
lacked subject matter jurisdiction, it must first decide whether it has jurisdiction to hear
her appeal. Mother's notice of appeal states that she appealed "from the Ruling rendered
and made in the above-entitled action on the 2nd day of August, 2017, whereby it was by
said court decided, ordered and adjudged that [Mother's] parental rights should be
terminated pursuant to K.S.A. 38-2269." As the State correctly notes, Mother's notice of
appeal does not name the August 19, 2016 judgment in which the district court found that
Kentucky declined jurisdiction. The State argues this court lacks appellate jurisdiction
because Mother did not comply with the statutory mandate to name the judgment she
wishes to appeal. "The notice of appeal . . . shall designate the judgment or part thereof
appealed from." K.S.A. 2017 Supp. 60-2103(b).
It is worth noting that the district court never entered a written order finding that it
had subject matter jurisdiction under the UCCJEA. The closest the district court came to
making this finding is its finding that Kentucky had declined jurisdiction. It is thus
unclear which order Mother should have named in her notice of appeal to ensure this
court would have jurisdiction to review the issue according to the State's argument. But
this court need not resolve this issue, as it has appellate jurisdiction either way.
In making its argument, the State relies on the general rules governing appellate
jurisdiction. As the State correctly notes, the right to appeal arises not from the United
States or Kansas Constitutions but from statute. As a result, Kansas appellate courts
generally have jurisdiction to entertain an appeal only if it is taken in the manner
prescribed by those statutes. Wiechman v. Huddleston, 304 Kan. 80, 86-87, 370 P.3d
1194 (2016). It is a fundamental proposition of Kansas appellate procedure that "'"an
appellate court only obtains jurisdiction over the rulings identified in the notice of
10
appeal."' [Citations omitted.]" In re N.U., 52 Kan. App. 2d 561, 567, 369 P.3d 984(2016).
But this issue also implicates the rules on subject matter jurisdiction. Subject
matter jurisdiction concerns the court's authority to hear and decide cases. It may be
raised at any time, whether for the first time on appeal or even on the appellate court's
own motion. Jahnke v. Blue Cross & Blue Shield of Kansas, 51 Kan. App. 2d 678, 686,
353 P.3d 455 (2015). Parties cannot confer subject matter jurisdiction by consent, waiver,
or estoppel. A failure to object to the court's jurisdiction does not invest the court with the
requisite subject matter jurisdiction. See In re A.A., 51 Kan. App. 2d 794, 805, 354 P.3d
1205 (2015).
For support, the State cites In re N.U., 52 Kan. App. 2d at 567-68, in which a
panel of this court held that failure to name a district court's ruling on subject matter
jurisdiction under the UCCJEA in the notice of appeal deprived this court of jurisdiction
to hear any challenge to that ruling. In that case, a father challenged the district court's
subject matter jurisdiction under the UCCJEA because a Nebraska court had already
entered child custody orders. On January 5, 2015, the district court found that it had
temporary emergency jurisdiction under K.S.A. 2015 Supp. 23-37,204(a) and declined to
dismiss the case. Father timely appealed that order but later dismissed his appeal.
On July 13, 2015, the district court extended its temporary emergency jurisdiction
without first obtaining an order from Nebraska in regards to which state would exercise
jurisdiction. Father again appealed. In his notice of appeal, Father stated that he was
appealing the district court's order from July 13, 2015, extending temporary emergency
jurisdiction. In his brief, however, Father also argued that the court erred in finding it had
temporary emergency jurisdiction in its January 5, 2015 order.
11
On appeal, the State argued that this court could not address Father's claim about
the January 5, 2015 order because he did not include the transcript from the related
hearing. The State also argued this was essentially a second appeal of that order. This
court agreed with the State that it could not address Father's claim without a transcript of
the related hearing. 52 Kan. App. 2d at 566-67. The court went on to hold that Father's
failure to name the January 5, 2015 order in his notice of appeal also deprived it of
appellate jurisdiction. 52 Kan. App. 2d at 567-68.
While In re N.U. supports the State's position, it does not necessarily control the
outcome here. First, the In re N.U. court appears to have raised this issue sua sponte, and
the record does not show the parties had an opportunity to argue it before the court.
Second, the In re N.U. court's holding about its appellate jurisdiction is not essential to its
decision, so it is arguably dicta. See Jamerson v. Heimgartner, 304 Kan. 678, 686, 372
P.3d 1236 (2016). Finally, this court is not bound by the decision of another panel of this
court. State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010).
Mother did not name the August 19, 2016 order in her notice of appeal. That said,
a party cannot waive subject matter jurisdiction. Jahnke, 51 Kan. App. 2d at 686. A party
may raise a challenge to subject matter jurisdiction at any time before any court. 51 Kan.
App. 2d at 686. Parents also have a fundamental constitutional right to custody and
control of their children; thus, consideration of Mother's argument for the first time on
appeal would be necessary to prevent the denial of a fundamental right. See In re Estate
of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008); In re Guardianship of Williams,
254 Kan. 814, 819, 869 P.2d 661 (1994). Thus, this court has jurisdiction to hear
Mother's argument.
12
Did the district court have subject matter jurisdiction?
As to the merits of Mother's argument, Mother argues that the district court did not
properly exercise jurisdiction under the UCCJEA, and even if it did, that jurisdiction
expired before the court terminated her parental rights. The Revised Kansas Code for
Care of Children (Code), K.S.A. 2017 Supp. 38-2201 et seq., provides that Kansas courts
have original jurisdiction over proceedings under the Code, but this jurisdiction is subject
to the UCCJEA. K.S.A. 2017 Supp. 38-2203(b). The UCCJEA aims "to avoid
jurisdictional competition between the courts of different states over child-custody
matters. It does so through rules that generally make sure that only one state at a time has
jurisdiction (authority) over child-custody matters in any particular family." In re A.A., 51
Kan. App. 2d at 804. "[A] Kansas district court errs by assuming subject-matter
jurisdiction over a child-in-need-of-care case that has interstate connections without
making sure that the provisions of the UCCJEA have been satisfied. [Citation omitted.]"
In re A.A., 51 Kan. App. 2d at 806. Kentucky has also adopted the UCCJEA. See Ky.
Rev. Stat. Ann. § 403.800 et seq.
Here, there are two ways the district court could have acquired jurisdiction over
the case: initial child-custody jurisdiction and temporary emergency jurisdiction. While
Mother alleged at one point that CPS was trying to take custody of K.L.B. and A.S.B.,
there is absolutely no evidence of a prior child-custody determination entry in any legal
proceeding in the State of Kentucky. Because there was no prior child-custody
determination about K.L.B. and A.S.B., the Kansas court could have acquired initial
child-custody jurisdiction under K.S.A. 2017 Supp. 23-37,201. That statute provides:
"(a) Except as otherwise provided in K.S.A. 2017 Supp. 23-37,204, and
amendments thereto, a court of this state has jurisdiction to make an initial child-custody
determination only if:
(1) This state is the home state of the child on the date of the commencement of
the proceeding, or was the home state of the child within six months before the
13
commencement of the proceeding and the child is absent from this state but a parent or
person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under paragraph (1), or a
court of the home state of the child has declined to exercise jurisdiction on the ground
that this state is the more appropriate forum under K.S.A. 2017 Supp. 23-37,207 or 23-
37,208, and amendments thereto, and:
(A) The child and the child's parents, or the child and at least one parent or a
person acting as a parent, have a significant connection with this state other than mere
physical presence; and
(B) substantial evidence is available in this state concerning the child's care,
protection, training, and personal relationships;
(3) all courts having jurisdiction under paragraph (1) or (2) have declined to
exercise jurisdiction on the ground that a court of this state is the more appropriate forum
to determine the custody of the child under K.S.A. 2017 Supp. 23-37,207 or 23-37,208,
and amendments thereto; or
(4) no court of any other state would have jurisdiction under the criteria specified
in paragraph (1), (2), or (3)." K.S.A. 2017 Supp. 23-37,201.
While there were no prior competing child-custody determinations, the Kansas
court did not qualify for initial child-custody jurisdiction. The parties do not dispute that
Kentucky, and not Kansas, was the home state of the children. See K.S.A. 2017 Supp. 23-
37,102(8) ("'Home state' means the state in which a child lived with a parent or a person
acting as a parent for at least six consecutive months immediately before the
commencement of a child-custody proceeding."). Kansas lacked jurisdiction on that
basis.
Even if the district court did not have initial child-custody jurisdiction, it could
have still exercised temporary emergency jurisdiction under K.S.A. 2017 Supp. 23-
37,204. That statute provides:
"A court of this state has temporary emergency jurisdiction if the child is present
in this state and the child has been abandoned or it is necessary in an emergency to
14
protect the child because the child, or a sibling or parent of the child, is subjected to or
threatened with mistreatment or abuse." K.S.A. 2017 Supp. 23-37,204(a).
In order for a court to exercise temporary emergency jurisdiction, a child must be
abandoned or there must be an actual emergency. The UCCJEA defines abandoned as
"left without provision for reasonable and necessary care or supervision." K.S.A. 2017
Supp. 23-37,102(1). A panel of this court has defined emergency as "'[a] serious situation
or occurrence that happens unexpectedly and demands immediate action.'" In re A.A., 51
Kan. App. 2d at 807 (quoting American Heritage Dictionary 583 [5th ed. 2011]). "[A]
child-in-need-of-care finding by itself does not invoke emergency jurisdiction under the
UCCJEA." 51 Kan. App. 2d at 807; see also In re N.U., 52 Kan. App. 2d at 568-69.
K.S.A. 2017 Supp. 23-37,204 also addresses how long temporary emergency
jurisdiction may last based on whether another state has made a prior child-custody
determination. K.S.A. 2017 Supp. 23-37,204(b) provides:
"If there is no previous child-custody determination that is entitled to be enforced
under this act and a child-custody proceeding has not been commenced in a court of a
state having jurisdiction under K.S.A. 2017 Supp. 23-37,201 through 23-37,203, and
amendments thereto, a child-custody determination made under this section remains in
effect until an order is obtained from a court of a state having jurisdiction under K.S.A.
2017 Supp. 23-37,201 through 23-37,203, and amendments thereto. If a child-custody
proceeding has not been or is not commenced in a court of a state having jurisdiction
under K.S.A. 2017 Supp. 23-37,201 through 23-37,203, and amendments thereto, a child-
custody determination made under this section becomes a final determination, if it so
provides and this state becomes the home state of the child."
Looking at K.S.A. 2017 Supp. 23-37,204, then, there are two questions this court
must answer: (1) did the district court properly invoke temporary emergency jurisdiction
and (2) did the district court's emergency jurisdiction expire before it terminated Mother's
parental rights?
15
As for the first question, Mother argues that the district court failed to find that an
emergency existed and that it was exercising temporary emergency jurisdiction. Mother
points out that the district court's temporary custody orders do not reference K.S.A. 2017
Supp. 23-37,204 or any type of emergency. Instead, the district court entered only
standard orders.
The State responds this court cannot address this claim because Mother has not
provided a transcript from the hearing on the temporary custody order. The State asserts
that Mother has not cited to where this issue was raised and ruled on in the record. It adds
that Mother has the burden to designate a record that establishes error. The State also
cites Supreme Court Rule 6.02(a)(4) (2018 Kan. S. Ct. R. 35), which states that litigants
must key facts to the record on appeal, and "[t]he court may presume that a factual
statement made without a reference to volume and page number has no support in the
record on appeal."
The State's point that Mother has failed to designate a record showing error has
merit. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d
287 (2013). The district court's written orders granting temporary custody ordered the
district attorney's office to contact the appropriate Kentucky court, suggesting the Kansas
court was aware of a potential jurisdictional issue. Also, the temporary orders do include
the standard finding that the district court has jurisdiction. Thus, the district court may
have addressed the UCCJEA at the hearing on the temporary orders and made the
necessary findings.
In addition, the undisputed facts show that an emergency existed or the children
were abandoned. When the State first took the children into custody, Mother was using
methamphetamines while caring for a 14-month-old and a 3-year-old with special needs.
Mother left the children under the supervision of a couple she had met the day before and
whose last names she did not know. After deputies found Mother, she was hospitalized.
16
Father had already been arrested and extradited to Kentucky, and there were no other
family members in Kansas who could care for the children. Mother was arrested a month
later, again leaving the children without anyone in Kansas to care for them. Thus, while
the record before this court does not definitively show whether the district court made
these findings, the record does show that an emergency or abandonment existed, giving
the district court emergency jurisdiction under K.S.A. 2017 Supp. 23-37,204.
Mother also makes the claim that the district court's jurisdiction expired before it
terminated her parental rights. Mother argues that even if the district court had properly
invoked temporary emergency jurisdiction, it never obtained an order from Kentucky
declining jurisdiction. Because it did not, Mother claims the district court's jurisdiction
expired before it terminated her parental rights. For support, Mother cites In re N.U., 52
Kan. App. 2d at 571-72, in which a panel of this court held that the district court's
exercise of temporary emergency jurisdiction expired before it obtained an order from
Nebraska relinquishing its initial child-custody jurisdiction.
An important distinction exists between Mother's case and In re N.U., though. In
In re N.U., Nebraska had already entered a child-custody determination before the
Kansas court exercised emergency jurisdiction. Under those circumstances, K.S.A. 2017
Supp. 23-37,204(c) requires that Kansas courts issuing an order exercising emergency
jurisdiction "must specify in the order a period that the court considers adequate to allow
the person seeking an order to obtain an order from the state having jurisdiction under
K.S.A. 2017 Supp. 23-37,201 through 23-37,203, and amendments thereto." That order
"remains in effect until an order is obtained from the other state within the period
specified or the period expires." K.S.A. 2017 Supp. 23-37,204(c). In In re N.U., the
specified period expired before the Kansas court obtained an order from the Nebraska
court, so the Kansas court's emergency jurisdiction ended.
17
In the current case, Kentucky had made no prior child-custody determination
about K.L.B. and A.S.B. There were no proceedings in existence in Kentucky addressing
child custody or any other matter relating to these children. There were simply no
competing proceedings that would require that a jurisdictional determination be made.
The record shows that both Mother and Father were incarcerated, and there were no other
family members in Kansas to care for the children. In this situation, then, the Kansas
court's exercise of jurisdiction would have remained in effect until an order was obtained
from Kentucky. K.S.A. 2017 Supp. 23-37,204(b). If, as Mother alleges, Kentucky never
entered an order declining jurisdiction, the Kansas court's jurisdiction would have
continued and, in fact, could have ripened into home-state jurisdiction. In re E.T., No.
111,971, 2015 WL 1125364, at *7 (Kan. App. 2015) (unpublished opinion) (finding
emergency jurisdiction can ripen into home-state jurisdiction under K.S.A. 2013 Supp.
23-37,204[b]).
Mother also appears to argue that the Kentucky court did not enter a valid order
because the order was not written. Mother states: "A mere verbal acknowledgement that
Kentucky declined jurisdiction should not replace a court order to that effect." Mother
cites no authority to support this argument. See University of Kan. Hosp. Auth. v. Board
of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602 (2015) (holding failure to
support a point with pertinent authority is like failing to brief the issue). Nor does Mother
provide any explanation beyond this sentence. Thus, Mother has failed to brief this
argument adequately, and she has waived and abandoned it. Superior Boiler Works, Inc.
v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). That said, the UCCJEA appears to
allow either a written or oral order from a court declining jurisdiction. In re T.A.B., No.
113,609, 2015 WL 8590161, at *3 (Kan. App. 2015) (unpublished opinion).
In sum, the undisputed facts in this case show that the district court had emergency
jurisdiction under K.S.A. 2017 Supp. 23-37,204(a) to take the children into custody in
July 2016. The district court's emergency jurisdiction then ripened into home-state
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jurisdiction under K.S.A. 2017 Supp. 23-37,201 at the time of the termination hearing in
August 2017. Kentucky declined to assume jurisdiction over the case, and Mother has not
produced any competing custody orders from another state. See In re E.T., 2015 WL
1125364, at *8 (finding district court properly exercised emergency jurisdiction and that
emergency jurisdiction ripened into home-state jurisdiction by time of CINC trial).
DID THE DISTRICT COURT ERR IN FINDING MOTHER UNFIT AND
THIS CONDITION WAS UNLIKELY TO CHANGE IN THE FORESEEABLE FUTURE?
Mother argues that substantial competent evidence does not support the district
court's finding that she was unfit and would remain that way for the foreseeable future.
Mother contends the district court ignored evidence of her progress. Mother also asserts
the district court placed too much emphasis on the quality of K.L.B. and A.S.B.'s foster
home.
The State responds that the evidence does support the district court's findings.
While Mother testified she had made progress, the State points out that the district court
found she was not credible. The State also contends Mother had failed to show she could
maintain stability outside of a restrictive environment at the time of termination.
Standard of Review
The Kansas Legislature has specified that the State must prove "by clear and
convincing evidence that the child is a [CINC]." K.S.A. 2017 Supp. 38-2250. In addition
to CINC adjudications, the clear and convincing evidence standard of proof applies to all
termination of parental rights cases. K.S.A. 2017 Supp. 38-2269(a).
"When this court reviews a district court's termination of parental rights, we
consider whether, after review of all the evidence, viewed in the light most favorable to
the State, we are convinced that a rational factfinder could have found it highly probable,
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i.e. by clear and convincing evidence, that the parent's rights should be terminated.
[Citation omitted.]" In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011).
In making this determination, an appellate court does not weigh conflicting evidence,
pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286
Kan. 686, 705, 187 P.3d 594 (2008).
The Code provides that the district court may terminate parental rights upon
certain findings after a child has been adjudicated a CINC. K.S.A. 2017 Supp. 38-
2269(a). The statute lists nonexclusive factors the court must consider in determining
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). In addition, the district court may apply one or more of 13
statutory presumptions of unfitness outlined in K.S.A. 2017 Supp. 38-2271.
Finding of Unfitness
A review of the record, in the light most favorable to the State, shows there was
clear and convincing evidence supporting the district court's finding that Mother was
unfit under these factors:
 K.S.A. 2017 Supp. 38-2269(b)(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." Mother began using methamphetamines and pain pills several
months before her children went into State custody. Mother also admitted
to doing methamphetamines while the children were in her care. While
Mother had been sober for 13 months, she had also spent that time either in
jail or in rehab.
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 K.S.A. 2017 Supp. 38-2269(b)(5): "conviction of a felony and
imprisonment." Mother does not dispute that she has a felony theft
conviction and that she spent a significant period in jail during the
pendency of this case.
 K.S.A. 2017 Supp. 38-2269(b)(7): "failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family." Somers'
testimony showed she made notable efforts to help Mother in completing
her case plan tasks. Because of Mother's incarceration and time in a
rehabilitation center, Mother could not successfully complete those tasks.
 K.S.A. 2017 Supp. 38-2269(b)(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." Mother testified that she had been sober for several
months and had generally made progress toward reintegrating with her
children. But the district court found that Mother's testimony was not
credible because her statements contained several inconsistencies. The
district court also found that while Mother said she would be willing to do
what she needed to help K.L.B. continue to develop, Mother had not made
any realistic efforts to develop these skills.
 K.S.A. 2017 Supp. 38-2269(c)(3): "failure to carry out a reasonable plan
approved by the court directed toward the integration of the child into a
parental home." At the time of the termination hearing, Mother had not
completed her case plan tasks. Mother had not met her obligations arising
from her criminal charges. And because Mother had been incarcerated and
was currently in a rehab center, she had not found employment or housing,
or shown she could maintain sobriety without supervision.
Clear and convincing evidence must also support the district court's finding that
the conduct or condition rendering Mother unfit is unlikely to change in the foreseeable
future. K.S.A. 2017 Supp. 38-2269(a). This court examines the term "foreseeable future"
21
from the perspective of a child. In re M.H., 50 Kan. App. 2d 1162, 1170, 337 P.3d 711(2014). Children and adults have different perceptions of time, and a child has the right to
permanency within a time frame that is reasonable to them. 50 Kan. App. 2d at 1170. A
district court may look to a parent's past conduct as an indicator of future behavior. See In
re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982); In re M.T.S., No. 112,776, 2015
WL 2343435, at *8 (Kan. App. 2015) (unpublished opinion) ("Parental unfitness can be
judicially predicted from a parent's past history.").
Mother and Somers both testified that Mother could complete her rehab program
in a few months. Somers also testified that Mother would need to maintain sobriety,
employment, and housing for at least another six to nine months once she was released.
Even then, Somers would not be confident reintegrating the children for at least a year or
two because of K.L.B.'s special needs. Given the young age of the children and the time
they had already spent in State custody, substantial competent evidence supports the
district court's ruling that Mother would not become fit in the foreseeable future.
In her brief, Mother argues that her failure to complete all her case plan tasks does
not support the district court's findings. Mother highlights that she testified she made as
much progress as she could, given her legal situation. Mother also contends that the State
offered no evidence to counter her testimony about her progress and her future intentions.
As noted above, though, the district court found that Mother was not credible. And this
court does not pass on the credibility of witnesses under its standard of review.
Mother also argues that her incarceration and time in rehabilitation prevented her
from completing her case plan tasks. But district courts do not have to treat incarceration
as a mitigating factor. See In re M.D.S., 16 Kan. App. 2d 505, 510-11, 825 P.2d 1155(1992). Here, the district court chose to treat Mother's legal situation as a negative factor.
The record supports this determination. First, imprisonment for a felony alone can result
in termination. K.S.A. 2017 Supp. 38-2269(b)(5). K.L.B. and A.S.B. were also very
22
young when they entered State custody, and K.L.B. had special needs. Delaying
proceedings to allow Mother to complete her legal obligations would not serve the best
interests of the children, which is a paramount concern in proceedings under the Code.
See K.S.A. 2017 Supp. 38-2201(b)(1), (b)(3), and (b)(4).
Finally, Mother contends the district court improperly considered the quality of the
children's foster home in reaching its decision. Mother asserts that the "district court
believed the foster family to be superior to Mother and then subsequently ignored all the
evidence regarding Mother's progress in order to justify keeping the [c]hildren in that
home." Mother argues that a court cannot terminate parental rights based only on the best
interests of the child because it violates the parental preference doctrine. In re Adoption
of Baby Girl P., 291 Kan. 424, 435-36, 242 P.3d 1168 (2010).
The district court did praise the foster family in its ruling from the bench. And it
did take the unconventional step of starting with its best interests determination in that
ruling. Regardless, the district court referenced the appropriate legal standards for its
fitness findings and made extensive findings on the record. Thus, the record does not
show that the district court terminated Mother's parental rights simply because it found
the foster family would provide a better home.
Best interests determination
Finally, the district court found it was in the best interests of the children to
terminate Mother's parental rights. Mother does not challenge this finding on appeal, so
she has waived and abandoned any argument on this issue. Kimball, 292 Kan. at 889. In
all events, a review of the record reveals the district court did not abuse its discretion in
making this finding. See In re K.P., 44 Kan. App. 2d 316, 318, 235 P.3d 1255 (2010)
(best interests finding reviewed for abuse of discretion).
Affirmed.
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