In re D.C.

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NOT DESIGNATED FOR PUBLICATION

Nos. 117,920
117,921


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of D.C. and L.C.,
Minor Children.


MEMORANDUM OPINION

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed December 15,
2017. Affirmed.

Leslie Ann Johnson, of Leslie Ann Johnson Law Office, LLC, of Salina, for appellant natural
mother.

Nathan L. Dickey, assistant county attorney, for appellee.

Before GARDNER, P.J., PIERRON and ATCHESON, JJ.

PER CURIAM: The Saline County District Court terminated the right of S.C. to
parent her sons D.C. and L.C., who were then 10 and 7 years old, principally because she
persisted in regularly using marijuana despite warnings that her drug habit could cause
her to lose her children. S.C. could not or would not reform her behavior during the 15
months D.C. and L.C. were in state custody. On appeal, S.C. disputes the sufficiency of
the evidence supporting the district court's termination order. We find the overall
circumstances, including the deplorable conditions in which the children had been living,
adequately support termination and, therefore, affirm the district court.

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FACTUAL AND PROCEDURAL HISTORY

The police were dispatched to S.C.'s home in late January 2016 based on a report
of a loud argument between S.C. and her longtime boyfriend. The children's father died
years earlier. The police found what can fairly be described as grossly inadequate living
conditions. Only two space heaters provided warmth in the dead of winter. The house
was strewn with rotting food, while the refrigerator was empty. Neither boy had a bed.
And the house was infested with cockroaches. The law enforcement officers took D.C.
and L.C. into emergency custody.

The county attorney's office filed petitions to have the children adjudged in need
of care. The district court ordered the children to be placed in the temporary custody of
the State and found them to be in need of care. In the meantime, a designated social
service agency formulated a plan that would permit S.C. to regain custody of her
children. S.C., however, was unable to conform to the conditions of the plan and to
complete some of the required tasks. Most notably, S.C. regularly tested positive for
marijuana throughout the course of these proceedings—more than 40 times in all. She
also tested positive once for methamphetamine, which she attributed to a false positive
result, and once for methadone.

S.C. missed some scheduled visits with D.C. and L.C. because of the drug test
results and never was in a position to have anything more than limited, supervised
visitation with the children. S.C. frequently switched jobs during these proceedings with
some periods of unemployment, at least suggesting a lack of stability. She also failed to
complete a mental health screening process and never came to grips with her drug use.

The county attorney's office filed a motion to terminate S.C.'s parental rights in
early February 2017, as provided in the Revised Kansas Code for Care of Children. See
K.S.A. 2016 Supp. 38-2269. The district court held a termination hearing about three
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months later. The parties agreed to a stipulated record consisting of the factual recitation
in the motion supplemented with reports and a timeline from the social service agency.
The lawyers also made proffers to the district court about the most recent developments
in the case. The record indicated the State had previously provided family services to
S.C. and had an open investigation into her supervision of the children when the police
came to her residence in January 2016. The record also showed that S.C. had told
representatives of the social service agency she did not intend to stop using marijuana.
And she continued to take and consistently fail drug tests even after the termination
motion had been filed. S.C. never offered some mitigating circumstance or explanation
for her chronic use of marijuana.

The district court found S.C. to be unfit as a parent and that the condition of
unfitness was unlikely to change in the foreseeable future, thereby warranting termination
of her rights. The district court also ruled that termination would be in the best interests
of D.C. and L.C. But the district court did not indicate the specific grounds on which it
based its finding of unfitness either in its bench ruling at the end of the hearing or in the
later journal entry of termination. See K.S.A. 2016 Supp. 38-2269(b), (c). S.C. has
appealed.

ANALYSIS

As we have indicated, S.C. challenges the sufficiency of the evidence to support
the legal components of the termination order—her unfitness, the unlikelihood of change
in the foreseeable future, and the best interests of the children. We set out the guiding
legal principles and then apply them to the evidentiary record in this case.

A parent has a constitutionally protected liberty interest in the relationship with his
or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 759-60, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Given the
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inherent importance and unique character of that relationship, the right has been deemed
fundamental. Accordingly, the State may extinguish the legal bonds between parent and
child only upon clear and convincing proof of parental unfitness. K.S.A. 2016 Supp. 38-
2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).

As provided in K.S.A. 2016 Supp. 38-2269(a), the State must prove the parent to
be unfit "by reason of conduct or condition" making him or her "unable to care properly
for a child" and that the circumstances are "unlikely to change in the foreseeable future."
The statute contains a nonexclusive list of nine conditions that singularly or in
combination would amount to unfitness. K.S.A. 2016 Supp. 38-2269(b). And the statute
lists four other factors to be considered if a parent no longer has physical custody of a
child. K.S.A. 2016 Supp. 38-2269(c). In reviewing a district court's determination of
unfitness, an appellate court must be convinced, based on the full evidentiary record
considered in a light favoring the State as the prevailing party, that a rational fact-finder
could have found that decision "highly probable, i.e., [supported] by clear and convincing
evidence." In re B.D.-Y., 286 Kan. at 705. The appellate court cannot weigh conflicting
evidence, pass on the credibility of witnesses, or otherwise independently decide disputed
questions of fact. 286 Kan. at 705. In short, any conflicts in the evidence must be
resolved to the State's benefit and against S.C.

Having found unfitness, the district court must then decide whether termination of
parental rights is "in the best interests of the child." K.S.A. 2016 Supp. 38-2269(g). As
directed by the language of K.S.A. 2016 Supp. 38-2269(g), the district court gives
"primary consideration to the physical, mental[,] and emotional health of the child." The
district court makes that determination based on a preponderance of the evidence. In re
R.S., 50 Kan. App. 2d at 1116. The best-interests issue is essentially entrusted to the
district court acting within its sound judicial discretion. 50 Kan. App. 2d at 1115-16.

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Although the district court did not tie the stipulated evidence to particular
conditions identified in K.S.A. 2016 Supp. 38-2269 as demonstrating unfitness, we may
do so, since that entails a legal determination disassociated from any fact-finding function
entrusted to the district court. Pertinent here, the Revised Kansas Code for Care of
Children supports a finding of unfitness on any of the following grounds:

• A parent's use of illegal drugs or other intoxicants to the extent he or she is
unable to adequately meet the ongoing physical, mental, or emotional needs of the child.
K.S.A. 2016 Supp. 38-2269(b)(3).

• A parent's lack of effort to adjust his or her circumstances, conduct, or conditions
to meet the needs of the child. K.S.A. Supp. 38-2269(b)(8).

• After a child has been removed from the home, the parent's failure to carry out a
reasonable plan aimed at reintegrating the family. K.S.A. 2016 Supp. 38-2269(c)(3).

Applying the appropriate appellate review, we may conclude that S.C.'s chronic
drug use played a material part in the condition of the home when D.C. and L.C. were
taken into emergency custody. We needn't repeat that description, except to note the
conditions were wholly incompatible with the physical and emotional well-being of the
children. We may likewise conclude that S.C.'s unwillingness or inability to abstain from
marijuana would lead a reasonable person to conclude the children would again be thrust
into a decidedly unhealthy environment if they were returned to the home. S.C. also
tested positive twice for other illegal substances.

During the course of these proceedings—over some 15 months—S.C. would not
stop using marijuana, even though she knew that was a necessary step for her to get her
children back. And she did not avail herself of programs that might have helped until the
very end of the process. In the meantime, S.C. was unable to visit with D.C. and L.C. on
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a number of occasions because she had failed drug tests, and she was never permitted to
take them on supervised or unsupervised excursions away from the social service agency.

S.C. never suggested her use of marijuana had some legitimate therapeutic
purpose for a diagnosed medical condition. We offer no opinion whether that would
necessarily be a mitigating circumstance in some hypothetical case, especially since the
use and possession of marijuana remains illegal in Kansas for any purpose. Here, we have
two young children whose basic needs were neglected. In turn, we have a parent
unwilling to or incapable of discontinuing an illegal activity that may have contributed
materially to that neglect and clearly prevented her from regaining custody of her
children. That sort of conduct, neglect, and recalcitrance are illustrative of the statutory
grounds for termination in K.S.A. 2016 Supp. 38-2269(b)(8) and (c)(3). The district
court, therefore, had a sufficient factual basis to find S.C. unfit.

Without belaboring the evidence, S.C.'s actions (and inaction) also demonstrated
an inability to alleviate the condition of unfitness in the foreseeable future. S.C. utterly
failed for 15 months, so there was no concrete reason to expect anything would change—
only a blind optimism that it might. The law does not recognize blind optimism as a
sound reason to return severely neglected children to the circumstances that fostered their
neglect. The district court had a sufficient basis to find the condition of unfitness was
unlikely to change in the determinate future. The comparatively young ages of D.C. and
L.C. underscore that finding. As the Code recognizes, children experience the passage of
time in a way that makes a month or a year seem considerably longer than it would for an
adult, and that different perception typically points toward to a prompt, permanent
disposition. K.S.A. 2016 Supp. 38-2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176
P.3d 977 (2008); In re G.A.Y., No. 109,605, 2013 WL 5507639, at *1 (Kan. App. 2013)
(unpublished opinion) ("'child time'" differs from "'adult time'" in care proceedings "in
the sense that a year . . . reflects a much longer portion of a minor's life than an adult's").
The district court expressly and correctly applied the child-time concept here.
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Finally, the district court did not abuse its wide discretion in finding that the best
interests of D.C. and L.C. would be served by terminating S.C.'s parental rights. All of
the evidence we have already outlined supports that conclusion, particularly the
deplorable environment from which the children were removed and S.C.'s inability to
alter her conduct thereafter to meet a basic condition of a reasonable reintegration plan.
The district court took account of the facts and the legal requirements to reach a
conclusion well within the judicial mainstream.

Affirmed.