In re K.R. (Kan. 2026): Termination Void Absent an Explicit “Unlikely to Change in the Foreseeable Future” Finding Under K.S.A. 38-2269(a)

1. Introduction

Case: In the Interest of K.R., a Minor Child, No. 128,161 (Kan. Jan. 16, 2026).
Parties: Mother (appellant) vs. the State (appellee); minor child K.R. (in kinship placement with paternal grandmother).
Context: A child in need of care (CINC) case beginning in July 2021 after Mother left K.R. with the paternal grandmother without indicating when she would return, coupled with reported drug-use concerns.

The district court initially terminated Mother’s parental rights by default in August 2022. The Court of Appeals reversed that termination for lack of an evidentiary hearing. On remand, the district court held a two-day evidentiary hearing and again terminated parental rights in July 2024. A different Court of Appeals panel affirmed. The Kansas Supreme Court granted review on a narrow legal issue: whether termination can be affirmed when the district court did not make the statutorily required finding that the parent’s unfitness is “unlikely to change in the foreseeable future” under K.S.A. 38-2269(a).

Key issue: Whether the district court’s omission of the “foreseeable future” finding deprives it of authority to terminate parental rights—and whether an appellate court may effectively supply that missing finding on review.

2. Summary of the Opinion

The Kansas Supreme Court reversed both the Court of Appeals and the district court. It held that K.S.A. 38-2269(a) requires two predicate findings, each supported by clear and convincing evidence: (1) parental unfitness, and (2) that the conduct or condition rendering the parent unfit is unlikely to change in the foreseeable future. The district court made the first finding but did not make the second.

Because the “foreseeable future” finding is a statutory prerequisite to proceeding to best interests and termination, the district court’s order could not stand. The Court of Appeals erred by affirming on the mistaken premise that the district court made the finding and by conducting an analysis as if it existed. The Supreme Court remanded for further proceedings, emphasizing that the defect cannot be cured by retroactively supplying findings based on an outdated record and that any renewed termination effort must be based on current circumstances and evidence.

3. Analysis

3.1 Precedents Cited

A. Procedural fairness and evidentiary requirements

  • In re K.R., No. 125,712, 2023 WL 4677010 (Kan. App. 2023) (unpublished opinion)
    The earlier reversal framed the case’s procedural posture: the first termination was reversed because the district court granted a default termination without receiving evidence as required by statute. The Supreme Court’s 2026 opinion builds on the same theme—termination demands strict statutory compliance—though the defect here is a missing statutory finding rather than a missing evidentiary hearing.

B. Preservation, prudential rules, and plain error

  • In re M.F., 312 Kan. 322, 475 P.3d 642 (2020)
    The court used In re M.F. to treat preservation as prudential, not jurisdictional, and to justify reaching the issue even though Mother framed it in the Court of Appeals largely as an evidentiary-sufficiency challenge. The Supreme Court reasoned that where the appellant has invoked the governing statute and challenged termination under that framework, the precise label attached to the argument is less important than the substance: termination authority depends on meeting statutory prerequisites.
  • State v. Williams, 311 Kan. 88, 456 P.3d 540 (2020)
    Williams supplied the court’s plain-error analogy: if a person receives a sanction “without a legal basis,” appellate correction may be required despite imperfect preservation. The Supreme Court applied that logic to termination, emphasizing that an order entered without statutory authority jeopardizes the integrity of the judicial process and risks a miscarriage of justice—especially given the fundamental rights at stake.

C. Constitutional floor: parental rights as fundamental liberty interests

  • Santosky v. Kramer, 455 U.S. 745 (1982)
    The opinion invoked Santosky for two linked propositions: (1) a parent’s interest in custody is a fundamental liberty interest protected by due process, and (2) the State may extinguish that bond only through fundamentally fair procedures and heightened proof. This constitutional backdrop supports the court’s insistence on strict compliance with statutory predicates to termination.
  • In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008)
    In re B.D.-Y. reinforced Kansas’ adoption of the clear-and-convincing framework and the seriousness of termination proceedings. The Supreme Court relied on it to underscore that the statutory structure is not a technicality; it is part of the procedural protection owed to parents facing permanent severance.

D. Kansas termination framework: two-step statutory analysis

  • In re K.W.D., 321 Kan. 100, 573 P.3d 221 (2025)
    Cited for the proposition that Kansas employs a two-part test: unfitness and foreseeable-future changeability, each supported by clear and convincing evidence. The Supreme Court used this to demonstrate that the missing finding is not optional; it is structurally essential.
  • In re D.G., 319 Kan. 446, 555 P.3d 719 (2024)
    The court drew on In re D.G. to separate the analysis of present unfitness from the future-looking changeability inquiry, and to highlight evaluative tools used in foreseeability: children experience time differently; past conduct can predict future behavior; actions may be weighted more heavily than stated intentions.

E. Court of Appeals authority recognizing an express foreseeability finding requirement

  • In re M.H., 50 Kan. App. 2d 1162, 337 P.3d 711 (2014)
    Used to show that beyond finding a statutory basis for unfitness, the district court must also find unfitness is unlikely to change in the foreseeable future.
  • In re R.S., 50 Kan. App. 2d 1105, 336 P.3d 903 (2014)
    Cited for treating foreseeability as part of the unfitness findings while applying the clear-and-convincing standard to all conclusions on parental fitness—supporting the Supreme Court’s insistence that the element must be found, not presumed.
  • In re S.D., 41 Kan. App. 2d 780, 204 P.3d 1182 (2009)
    Referenced as an example where a district court made a separate foreseeability finding and appellate review evaluated whether evidence supported it—illustrating what proper compliance looks like.

F. “Child’s sense of time” and permanency rhetoric

  • In the Interest of A.A., 38 Kan. App. 2d 1100 (2008)
    The district court quoted A.A. to emphasize judging actions over intentions and ensuring final resolution within a timeframe appropriate for the child. The Supreme Court did not reject that policy; instead, it clarified that permanency goals cannot be pursued by skipping required statutory findings.

3.2 Legal Reasoning

  1. Termination authority is statutory and conditional.
    The court treated K.S.A. 38-2269(a) as a grant of authority that becomes available only when the district court first makes two explicit findings by clear and convincing evidence: unfitness and unlikely-to-change-in-foreseeable-future. Without those findings, the court “lacks authority” to terminate.
  2. Unfitness and foreseeability are intertwined but distinct.
    Unfitness is primarily present-focused (current conduct or condition rendering a parent unable to care properly). Foreseeability is future-focused (whether that unfitness is unlikely to change within a timeframe meaningful to the child). The statute lists factors relevant to unfitness (K.S.A. 38-2269[b], [c]) but does not list factors for foreseeability—making the district court’s explicit articulation of the foreseeability finding even more important for transparency, reviewability, and compliance.
  3. The district court’s order failed at the required intermediate step.
    The district court (i) recited the correct legal standard, (ii) made conclusions that Mother “is unfit” under identified factors, and (iii) made a best-interests determination. But it never made the required finding that the unfitness is unlikely to change in the foreseeable future. The Supreme Court treated this as a legal omission, not a mere drafting defect.
  4. Appellate courts review findings; they do not supply missing statutory findings.
    The Court of Appeals affirmed as if the district court made the foreseeability finding and then assessed likelihood of change from K.R.’s perspective. The Supreme Court held this was error because it rested on a false premise: the finding did not exist. By affirming anyway, the panel “necessarily supplied the missing determination itself,” exceeding the proper appellate role in this context.
  5. Remand is required—and must be based on current circumstances, not stale records.
    The Supreme Court emphasized that the district court cannot fix the problem by adding findings after the fact based on an old record. If the State seeks termination after remand, it must prove the statutory elements based on evidence of current circumstances. This portion of the opinion functions as an important remedial rule: it guards against “papering over” a missing statutory predicate while time and conditions continue to change.
  6. Preservation does not bar review; plain error provides an additional path.
    The court held the issue was “fairly included” under the prudential preservation approach in In re M.F.. It also held that even if not preserved, termination without statutory authority is plain error because of the fundamental liberty interest and the risk of miscarriage of justice under the logic of State v. Williams.

3.3 Impact

  • Trial-court practice: explicit foreseeability findings are mandatory.
    The decision signals that a termination order must contain an express determination that the unfitness is unlikely to change in the foreseeable future; reciting the standard or implying it through best-interests language will not suffice.
  • Appellate review: no “gap-filling” for missing statutory elements.
    Even if the record might support a foreseeability finding, appellate courts may not affirm by effectively making that finding themselves. This promotes role clarity: factfinding belongs to the district court, especially under a clear-and-convincing burden.
  • Remedial discipline: no retroactive “finding addendum” on a stale record.
    The court’s direction that the State must proceed with evidence reflecting current circumstances discourages post-hoc drafting fixes and emphasizes that termination must reflect present realities and a child-centered timeframe at the time of the decision.
  • System-level incentives: precision to reduce delays in permanency.
    The opinion candidly notes that repeated legal errors delayed permanency for K.R. for years. The precedent pressures courts and agencies to ensure statutory compliance early to avoid reversible errors that prolong litigation and uncertainty for children.

4. Complex Concepts Simplified

  • “Clear and convincing evidence”: A high civil standard requiring the factfinder to be firmly convinced of the truth of the allegations—higher than “more likely than not,” lower than “beyond a reasonable doubt.”
  • “Unfit” vs. “unlikely to change in the foreseeable future”: Unfitness asks whether the parent is presently unable to properly care for the child. Foreseeability asks whether that inability is unlikely to improve soon enough, measured from the child’s perspective of time.
  • “Foreseeable future” from the child’s perspective: Courts recognize that months and years carry different weight for children; the law prioritizes timely permanency for a child’s stability and development.
  • “Best interests”: A separate step reached only after the statutory prerequisites for termination authority are satisfied. It evaluates what outcome best promotes the child’s physical, mental, and emotional welfare.
  • “Plain error”: A doctrine allowing appellate courts to correct serious legal mistakes not properly raised, when necessary to prevent injustice or protect the integrity of the courts—especially when fundamental rights are at stake.
  • “Stale evidence” and “current circumstances”: Evidence becomes stale when significant time has passed or circumstances have materially changed; the court stressed termination cannot rest on outdated snapshots where the parent’s situation may have evolved.

5. Conclusion

In re K.R. establishes and reinforces a strict, formal requirement in Kansas termination practice: absent an explicit district-court finding under K.S.A. 38-2269(a) that unfitness is unlikely to change in the foreseeable future, the court lacks authority to terminate parental rights. The decision also draws a bright line for appellate courts: they may not affirm termination by supplying a missing statutory prerequisite through their own analysis.

Beyond the doctrinal holding, the opinion underscores a pragmatic truth of child welfare litigation: errors in statutory compliance do not merely produce reversals—they prolong uncertainty for children and families. The court’s remedy—reversal and expedited remand grounded in current evidence—aims to align constitutional due process, statutory rigor, and the child-centered need for timely permanency.