In re D.T.

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NOT DESIGNATED FOR PUBLICATION

Nos. 115,670
115,671
115,672
115,673


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of D.T., E.T., K.T., and R.T.,
Minor Children Under the Age of Eighteen.


MEMORANDUM OPINION

Appeal from Reno District Court; PATRICIA MACKE DICK, judge. Opinion filed March 17, 2017.
Affirmed.

Candace S. Bridgess, of Kansas Legal Services, for appellant mother.

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

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

Per Curiam: J.B. appeals the decision of the Reno County District Court
terminating her parental rights, arguing the evidence fails to support termination. But J.B.
fell short in key aspects of the plan aimed at reuniting her with her four children—most
notably she could not remain drug free—and offered no realistic expectation her
circumstances would improve in the foreseeable future. We, therefore, find no error in the
district court's ruling and affirm.

The State filed petitions in December 2014 to have the children adjudicated in
need of care. Each of the four children was the subject of a separate proceeding. But the
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district court conducted combined hearings throughout the process, and the same lawyer
represented J.B. in each case. The cases were functionally, though not formally,
consolidated in the district court. The children—all boys, ranging in age from 4 to 10
years old when the petitions were filed—have been identified as D.T., E.T., K.T., and
R.T.

The district court granted temporary custody of the children to the Secretary of the
Department for Children and Families in early January 2015, and they were placed with a
relative of their father. On January 30, 2015, the district court found the children to be in
need of care. In the meantime, a reintegration plan was implemented and revised over the
course of the court proceedings. In late August, the State requested a permanency hearing
and sought a determination of unfitness and termination of J.B.'s parental rights. The
district court held an evidentiary hearing on termination on January 20, 2016, and filed an
order terminating J.B.'s parental rights on February 10.

The hearing evidence showed that J.B. used marijuana and methamphetamine
when the children were taken into custody. J.B. completed an inpatient drug treatment
program and then participated in substance abuse counseling for a while. She remained
drug free between May and late August 2015. But in late August, J.B. again tested
positive for illegal drugs. Periodic drug tests from then until a week before the
termination hearing showed J.B. to have been regularly using marijuana and
methamphetamine.

J.B. completed parenting classes, as required in the reintegration plan. But, at best,
she only partially complied with other conditions. For example, J.B. needed to seek
gainful employment and provide pay stubs and related documents to her assigned social
worker. J.B. reported she had found a job at a fast food restaurant. The social worker was
able to confirm that much only by observing J.B. working there. J.B., however, never
submitted required documentation of the employment or her income. With respect to
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housing, J.B. eventually moved to her father's home, a two bedroom residence where four
adults were living. J.B. never provided a lease, as required by the reintegration plan. And
the social worker determined that given the size and occupancy of the house, it would not
have been a suitable place for four children to live. J.B.'s performance of other aspects of
the plan were similarly mixed.

The district court concluded that the State had proved by clear and convincing
evidence that J.B. was unfit to parent the children within the meaning of K.S.A. 2016
Supp. 38-2269 and that the circumstances were unlikely to change in the foreseeable
future. The district court also found the best interests of the children would be served by
terminating J.B.'s parental rights.

J.B. has timely appealed. The district court case for each child was docketed as a
separate appeal. They have been formally consolidated in this court for briefing and
disposition.

As we have indicated, J.B. challenges the sufficiency of the evidence supporting
the district court's decision.

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, 769-70, 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
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
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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 viewed in a light favoring the State as
the prevailing party, that a rational factfinder 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 evidence must be resolved to the State's benefit and against J.B.

Having found unfitness, the district court must then determine whether termination
of parental rights is "in the best interests of the child." K.S.A. 2016 Supp. 38-2269(g).
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. An
appellate court reviews those sorts of decisions for abuse of discretion. A district court
exceeds that broad latitude if it rules in a way no reasonable judicial officer would under
the circumstances, if it ignores controlling facts or relies on unproven factual
representations, or if it acts outside the legal framework appropriate to the issue. See
Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d
1106, cert. denied 134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d
801 (2011), cert. denied 565 U.S. 1221 (2012).

With those legal principles in mind, we turn to J.B.'s challenge to the evidence.
Most significantly, perhaps, J.B. continued to abuse illegal drugs, including
methamphetamine, despite inpatient treatment and follow-up counseling. J.B. stopped
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participating in aftercare against the advice of her caseworker and other professionals. In
short, the pull of J.B.'s addiction caused her to abandon programs aimed at keeping her
drug free. J.B. then returned to what appeared to be chronic abuse of methamphetamine, a
particularly pernicious illicit drug. Persistent use of illegal drugs is one of the statutory
grounds warranting a finding of parental unfitness. K.S.A. 2016 Supp. 38-2269(b)(3).
Here, the evidence indicated J.B. would have been unable to care for her children for that
reason. In addition, J.B.'s inability to persevere in drug counseling demonstrates an
inability to adjust her circumstances to meet the needs of the children, another ground for
finding unfitness. K.S.A. 2016 Supp. 38-2269(b)(8). Given J.B.'s failure to remain drug
free despite inpatient treatment and later counseling, the district court appropriately
concluded her substance abuse likely would not abate in any reasonably predictable time.

J.B. also failed to adhere to reasonable, court-ordered plans for employment and
housing necessary to "the integration of the child[ren] into a parental home." K.S.A. 2016
Supp. 38-2269(c)(3). This, too, is a sufficient ground to terminate parental rights. K.S.A.
2016 Supp. 38-2269(b)(9). Although J.B. apparently had a job, she failed to provide
information showing that she had the financial means to provide adequately for her
children. She, likewise, failed to obtain housing that would allow her to live with her
children in a suitable physical environment. Those circumstances bear on J.B.'s ability to
provide the children minimally sufficient necessities, such as food and housing on a
continuing basis, thereby avoiding their physical neglect. K.S.A. 2016 Supp. 38-
2269(b)(4). Again, nothing in the record evidence suggested those circumstances would
change, especially given J.B.'s ongoing abuse of methamphetamine.

The confluence of those conditions provides evidence from which a reasonable
factfinder could conclude to a high probability that J.B. was unfit within the meaning of
K.S.A. 2016 Supp. 38-2269(a). The evidence, likewise, supports the conclusion that those
conditions would not improve in any foreseeable time. The district court, therefore, ruled
correctly on those points and properly found J.B. unfit to parent her children.
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J.B. briefly asserts the evidence failed to show that the children's best interests
were served by terminating her parental rights. But J.B. outlines no other evidence to
support that assertion and does not suggest the district court misapplied the law. Without
belaboring the point, the district court understood the facts and the governing law. J.B.
doesn't argue otherwise. The evidence was such that we comfortably conclude other
district courts would have found the termination of J.B.'s parental rights promoted the
children's best interests, especially in light of J.B.'s chronic drug abuse and her failure to
demonstrate a realistic ability to provide for the children's physical needs on a continuing
basis. The district court did not abuse its discretion in that ruling.

Affirmed.