We disagree with this finding. For its scope of appellate review, the Court of Appeals relied on In re A.S., 12 Kan. App. 2d 594, Syl. ¶ 5, 752 P.2d 705 (1988), which states that the record must contain "[s]ubstantial competent evidence of a clear and convincing nature to support a finding of parental unfitness and that parental conduct is unlikely to change in the foreseeable future." While the Court of Appeals correctly quoted Syl. ¶ 5 from In re A.S., it did so without reading it in the context of that decision.

See, e.g., In re J.R., 711 P.2d 701, 703 (Colo.App. 1985) (policy of limiting litigation should not be applied so as to disadvantage state in its role of parens patriae); In re Juvenile Appeal, 190 Conn. 310, 460 A.2d 1277, 1282 (1983) (doctrines of preclusion should be flexible and "must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies"); In re A.S., 12 Kan. App. 2d 594, 752 P.2d 705, 711 (1988) (court must be free to examine all circumstances, evidence, prior facts and orders, and other relevant information in termination proceeding); In re Pardee, 190 Mich. App. 243, 475 N.W.2d 870, 874 (1991) (doctrine of res judicata "cannot settle the question of a child's welfare for all time"); In re V.B., 220 Neb. 369, 370 N.W.2d 119, 121 (1985) (same); In re Newman, 49 Or. App. 221, 619 P.2d 901, 905 (1980) (best interest of child is overriding consideration; thus all relevant facts are to be considered); In re J.L.H., 299 N.W.2d 812, 815 (S.D. 1980) (lower court did not err by admitting evidence originating prior to earlier neglect proceeding). But see Slatton v. Protective Servs. Unit, 804 S.W.2d 550, 553 (Tex.App. 1991).

" 2 Kan. App. 2d at 644. The Court of Appeals in S.M.Q. had relied upon the syllabus of In re A.S., 12 Kan. App. 2d 594, Syl. ¶ 5, 752 P.2d 705 (1988). The syllabus stated that upon appellate review the record must contain "`substantial competent evidence of a clear and convincing nature to support a finding of parental unfitness.

The State cites In re A.S., 12 Kan.App.2d 594, 752 P.2d 705 (1988), for the proposition that termination can be appropriate under this factor when a mother focuses on a romantic relationship instead of the child. The State asserts that Mother's emotional or mental deficiency impacted her decision making, which caused her to lose unsupervised visitation.

Based on materially changed circumstances, law of the case would not preclude reexamination of termination under K.S.A. 2022 Supp. 59-2136(h)(1)(B) and K.S.A. 2022 Supp. 59-2136(h)(1)(C), even though we have affirmed the district court's rulings rejecting those grounds. See In re A.L.E.A., No. 116,276, 2017 WL 2617142, at *7 (Kan. App. 2017) (unpublished opinion) (law of case would not bind district court to ruling denying motion to terminate parental rights in considering second motion to terminate based on changed circumstances); see also In re A.S., 12 Kan.App.2d 594, Syl. ¶ 3, 752 P.2d 705 (1988)

K.S.A.1992 Supp. 60-2102(a)(4) provides for appeal from "[a] final decision in any action, except in an action where a direct appeal to the supreme court is required by law."        Appellees rely on In re A.S., 12 Kan.App.2d 594, 752 P.2d 705 (1988), to argue the State cannot appeal the denial of a motion to terminate because the denial is not a final decision. A.S. involved a res judicata issue.

See, e.g., In re John B, 20 Conn. App. 725; 570 A.2d 237 (1990); Scott, supra; In the Interest of AS, 12 Kan. App.2d 594; 752 P.2d 705 (1988); In re Interest of VB, 220 Neb. 369, 371-372; 370 N.W.2d 119 (1985); People in the Interest of JR, 711 P.2d 701, 703 (Colo App, 1985). We recognize that respondent has a significant interest in protecting himself from repeated vexatious or unnecessary relitigation of issues which the doctrine of res judicata is designed to prevent.

We note, however, that other jurisdictions that have addressed this issue have declined to bar a successive petition to terminate parental rights on the basis of res judicata. See, e.g., People in Interest of J.R., 711 P.2d 701, 703 (Colo. App. 1985) (stating that the policy of limiting litigation "should not be applied so as to deprive the state in its role as parens patriae from seeking a resolution which will best serve the interests of the children"); In Interest of A.S., 12 Kan.App.2d 594, 752 P.2d 705, 711 (1988) (concluding that a court must be free to "examine all of the circumstances, evidence, prior facts, prior orders, and other relevant information" in termination proceedings "in order to arrive at a correct conclusion"); In re Pardee, 190 Mich.App. 243, 475 N.W.2d 870, 873, 874 (1991) (concluding that "when the facts have changed or new facts develop, the dismissal of a prior termination proceeding will not operate as a bar to a subsequent termination proceeding," stating that doctrine of res judicata "cannot settle the question of a child's welfare for all time"); Nassau Cty. Dept. of Social Serv., 225 A.D.2d 779, 640 N.Y.S.2d 153, 154–55 (1996) (rejecting mother's contentions that termination proceeding was barred by res judicata because earlier petition was dismissed, reasoning that evidence in the later petition concerned allegations of neglect not covered by the earlier petition); State ex rel. A.C.M., 221 P.3d 185, 191 (Utah 2009) (reasoning that "in child welfare proceedings res

"The progress, or lack of progress, of a parent or a child cannot be determined without a knowledge of the conditions that existed at the time the case commenced and the changes that occurred during the cause of action," and thus, the court "must be free to examine all of the circumstances, evidence, prior facts, prior orders, and other relevant information in order to arrive at a correct conclusion." In re A.S., 752 P.2d 705, 711 (Kan. Ct. App. 1988). We conclude that substantial evidence supports the district court's parental fault findings that appellant failed to adjust the circumstances that led to the children's removal, poses a risk of serious physical or emotional injury to the children if they are returned to her care, and made only token efforts.

But he fails to recognize that the passage of time — without corresponding progress on his case plan — provides support for the court's decision that termination of paternal rights is now warranted. See In re A.S., 12 Kan.App.2d 594, 752 P.2d 705, 711 (1988) ("Future changes that would justify reviewing evidence considered in prior termination proceedings could be triggered by nothing more than a continued course of conduct, i.e., a failure to change or to improve as a parent.").See, e.g., J.H. v. State, Dept. of Health Social Servs., 30 P.3d 79, 87 (Alaska 2001).