Kansas Statutes Annotated

K.S.A. § 38-2271 (2026)

Presumption of unfitness, when; burden of proof

✓ current as of May 2026

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38-2271. Presumption of unfitness, when; burden of proof. (a) It is presumed in the manner provided in K.S.A. 60-414, and amendments thereto, that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes, by clear and convincing evidence, that:

(1) A parent has previously been found to be an unfit parent in proceedings under K.S.A. 38-2266 et seq., and amendments thereto, or comparable proceedings under the laws of another jurisdiction;

(2) a parent has twice before been convicted of a crime specified in article 34, 35, or 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6104, 21-6325, 21-6326 or 21-6418 through 21-6421, and amendments thereto, or comparable offenses under the laws of another jurisdiction, or an attempt or attempts to commit such crimes and the victim was under the age of 18 years;

(3) on two or more prior occasions a child in the physical custody of the parent has been adjudicated a child in need of care as defined by K.S.A. 38-2202(d)(1), (d)(3), (d)(5) or (d)(11), and amendments thereto, or comparable proceedings under the laws of another jurisdiction;

(4) the parent has been convicted of causing the death of another child or stepchild of the parent;

(5) the child has been in an out-of-home placement, under court order for a cumulative total period of one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home;

(6) (A) the child has been in an out-of-home placement, under court order for a cumulative total period of two years or longer; (B) the parent has failed to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home; and (C) there is a substantial probability that the parent will not carry out such plan in the near future;

(7) a parent has been convicted of capital murder, K.S.A. 21-3439, prior to its repeal, or K.S.A. 21-5401, and amendments thereto, murder in the first degree, K.S.A. 21-3401, prior to its repeal, or K.S.A. 21-5402, and amendments thereto, murder in the second degree, K.S.A. 21-3402, prior to its repeal, or K.S.A. 21-5403, and amendments thereto, voluntary manslaughter, K.S.A. 21-3403, prior to its repeal, or K.S.A. 21-5404, and amendments thereto, human trafficking or aggravated human trafficking, K.S.A. 21-3446 or 21-3447, prior to their repeal, or K.S.A. 21-5426, and amendments thereto, or commercial sexual exploitation of a child, K.S.A. 21-6422, and amendments thereto, or comparable proceedings under the laws of another jurisdiction or, has been adjudicated a juvenile offender because of an act which if committed by an adult would be an offense as provided in this subsection, and the victim of such murder was the other parent of the child;

(8) a parent abandoned or neglected the child after having knowledge of the child's birth or either parent has been granted immunity from prosecution for abandonment of the child under K.S.A. 21-3604(b), prior to its repeal, or K.S.A. 21-5605(d), and amendments thereto; or

(9) a parent has made no reasonable efforts to support or communicate with the child after having knowledge of the child's birth;

(10) a father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child's birth;

(11) a father abandoned the mother after having knowledge of the pregnancy;

(12) a parent has been convicted of rape, K.S.A. 21-3502, prior to its repeal, or K.S.A. 21-5503, and amendments thereto, or comparable proceedings under the laws of another jurisdiction resulting in the conception of the child; or

(13) a parent has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition. In making this determination the court may disregard incidental visitations, contacts, communications or contributions.

(b) The burden of proof is on the parent to rebut the presumption of unfitness by a preponderance of the evidence. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall terminate parental rights in proceedings pursuant to K.S.A. 38-2266 et seq., and amendments thereto.

History: L. 2006, ch. 200, § 66; L. 2011, ch. 30, § 157; L. 2015, ch. 94, § 13; July 1.

Notes of Decisions

Cited in 88 cases (51 in the last 5 years), 2007–2026 · leading case: In The Interest Of K.R., 233 P.3d 746 (Kan. Ct. App. 2010).

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In The Interest Of K.R., 233 P.3d 746 (Kan. Ct. App. 2010). · cites it 15× “K.S.A. 2009 Supp. 38-2271 sets forth a number of presumptions of unfitness, including: “(a) It is presumed in the manner provided in K.”

In Re Interests of M.S., 447 P.3d 994 (Kan. Ct. App. 2019). · cites it 2× “The State may also rely on 1 or more of the 13 statutory presumptions of unfitness outlined in K.S.A. 2018 Supp. 38-2271. In reviewing a district court's determination of unfitness, an appellate court asks whether, based on the full evidentiary record considered in a light…”

In the Interest of K.P., 235 P.3d 1255 (Kan. Ct. App. 2010). · cites it 4× “’s Best Interests to Appoint a Permanent Custodian? In its cross-appeal, the State argues that the district court erred in refusing to terminate mother’s parental rights because a statutory presumption of unfitness was applicable and K.S.A. 2009 Supp. 38-2271(b) states that when…”

In the Interest of X.D., 340 P.3d 1230 (Kan. Ct. App. 2014). · cites it 6× “K.S.A. 2013 Supp. 38-2271(a). That’s a high evidentiary burden, requiring evidence that could convince a rational fact-finder that the facts were highly probable.”

In the Interest of J.S., 208 P.3d 802 (Kan. Ct. App. 2009). · cites it 6× “In addition to finding mother unfit based on the statutory factors, the district court also found mother was presumed to be unfit as to four of the five children, pursuant to K.S.A. 2008 Supp. 38-2271. Specifically, the district court found that the mother was presumed unfit as…”

In Re the Adoption of B.B.M., 224 P.3d 1168 (Kan. 2010). · cites it 2× “K.S.A. 2009 Supp. 38-2271 provides in pertinent part: “(a) It is presumed .”

In re K.L.B., 431 P.3d 883 (Kan. Ct. App. 2018). “In addition, the district court may apply one or more of 13 statutory *895 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…”

In the Interest of K.E., 272 P.3d 28 (Kan. 2012). · cites it 2× “60-414(a) and K.S.A. 2010 Supp. 38-2271(a). Accordingly, Father now had the burden of proof under K.”

In the Interest of J.O., 232 P.3d 880 (Kan. Ct. App. 2010). · cites it 4× “The court orally announced that it was applying the statutory presumption of K.S.A. 2009 Supp. 38-2271(a)(5) and also found termination of Father’s parental rights was proper under the statutory factors in K.”

In the Interest of J.D.C., 159 P.3d 974 (Kan. 2007). “38-1585(a)(3) (now repealed and reenacted as K.S.A. 2006 Supp. 38-2271[a][3]; effective January 1, 2007); that their mother was unfit.”

In re Guardianship & Conservatorship of B.H., 442 P.3d 457 (Kan. 2019). “They asserted that Alicia and Sam were presumptively unfit under K.S.A. 2016 Supp. 38-2271. Consequently, they argued, Alicia and Sam could not terminate the guardianship.”

In Re Kr, 233 P.3d 746 (Kan. Ct. App. 2010). · cites it 14× “K.S.A.2009 Supp. 38-2271 sets forth a number of presumptions of unfitness, including: "(a) It is presumed in the manner provided in K.”

Show all 88 citing cases →

— K.S.A. § 38-2271(A)(5) — 1 case

In re I.W. (Kan. Ct. App. 2025).

— K.S.A. § 38-2271(a) — 19 cases

In the Interest of K.E., 272 P.3d 28 (Kan. 2012). “60-414(a) and K.S.A. 2010 Supp. 38-2271(a). Accordingly, Father now had the burden of proof under K.”

In the Interest of X.D., 340 P.3d 1230 (Kan. Ct. App. 2014). “K.S.A. 2013 Supp. 38-2271(a). That’s a high evidentiary burden, requiring evidence that could convince a rational fact-finder that the facts were highly probable.”

In the Interest of J.S., 208 P.3d 802 (Kan. Ct. App. 2009). “In addition to finding mother unfit based on the statutory factors, the district court also found mother was presumed to be unfit as to four of the five children, pursuant to K.S.A. 2008 Supp. 38-2271. Specifically, the district court found that the mother was presumed unfit as…”

In re B.M. (Kan. Ct. App. 2021).

In re O.O. (Kan. Ct. App. 2026).

— K.S.A. § 38-2271(a)(1) — 7 cases

In re O.O. (Kan. Ct. App. 2026).

In re A.M. (Kan. Ct. App. 2025).

In re J.J. (Kan. Ct. App. 2024).

In re D.H. (Kan. Ct. App. 2017).

In re R.C. (Kan. Ct. App. 2021).

— K.S.A. § 38-2271(a)(12) — 1 case

In re M.H. (Kan. Ct. App. 2020).

— K.S.A. § 38-2271(a)(13) — 1 case

In re M.H. (Kan. Ct. App. 2020).

— K.S.A. § 38-2271(a)(2) — 2 cases

In re K.S. (Kan. Ct. App. 2025).

In re X.W. (Kan. Ct. App. 2024).

— K.S.A. § 38-2271(a)(3) — 11 cases

In re Johnston, 520 P.3d 737 (Kan. 2022).

In re B.M. (Kan. Ct. App. 2021).

In re A.C. (Kan. Ct. App. 2020).

In re Y.B. (Kan. Ct. App. 2024).

In re S.A. (Kan. Ct. App. 2021).

— K.S.A. § 38-2271(a)(4) — 2 cases

In re P.H. (Kan. Ct. App. 2020).

— K.S.A. § 38-2271(a)(5) — 42 cases

In The Interest Of K.R., 233 P.3d 746 (Kan. Ct. App. 2010). “K.S.A. 2009 Supp. 38-2271 sets forth a number of presumptions of unfitness, including: “(a) It is presumed in the manner provided in K.”

In the Interest of J.O., 232 P.3d 880 (Kan. Ct. App. 2010). “The court orally announced that it was applying the statutory presumption of K.S.A. 2009 Supp. 38-2271(a)(5) and also found termination of Father’s parental rights was proper under the statutory factors in K.”

In Re Kr, 233 P.3d 746 (Kan. Ct. App. 2010). “K.S.A.2009 Supp. 38-2271 sets forth a number of presumptions of unfitness, including: "(a) It is presumed in the manner provided in K.”

In re K.E., 261 P.3d 934 (Kan. Ct. App. 2011).

— K.S.A. § 38-2271(a)(6) — 17 cases

In re L.B. (Kan. Ct. App. 2021).

In re D.B. (Kan. Ct. App. 2024).

In re K.J.S. (Kan. Ct. App. 2020).

In re A.P. (Kan. Ct. App. 2020).

In re N.D. (Kan. Ct. App. 2020).

— K.S.A. § 38-2271(a)(6)(A) — 3 cases

In re D.B. (Kan. Ct. App. 2024).

In re N.M. (Kan. Ct. App. 2025).

In re J.S. (Kan. Ct. App. 2026).

— K.S.A. § 38-2271(a)(6)(B) — 2 cases

In re L.B. (Kan. Ct. App. 2021).

In re J.S. (Kan. Ct. App. 2026).

— K.S.A. § 38-2271(a)(6)(C) — 1 case

In re J.S. (Kan. Ct. App. 2026).

— K.S.A. § 38-2271(a)(7) — 1 case

In re S.G. (Kan. Ct. App. 2022).

— K.S.A. § 38-2271(a)(l) — 1 case

— K.S.A. § 38-2271(b) — 34 cases

In the Interest of K.P., 235 P.3d 1255 (Kan. Ct. App. 2010). “’s Best Interests to Appoint a Permanent Custodian? In its cross-appeal, the State argues that the district court erred in refusing to terminate mother’s parental rights because a statutory presumption of unfitness was applicable and K.S.A. 2009 Supp. 38-2271(b) states that when…”

In the Interest of K.E., 272 P.3d 28 (Kan. 2012). “60-414(a) and K.S.A. 2010 Supp. 38-2271(a). Accordingly, Father now had the burden of proof under K.”

— K.S.A. § 38-2271(b)(8) — 1 case

In re X.W. (Kan. Ct. App. 2024).

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