In re L.H.

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NOT DESIGNATED FOR PUBLICATION

No. 121,313

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of L.H. and L.H. II,
Minor Children.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed November 22,
2019. Affirmed.

Debera A. Erickson, of Kansas City, for appellant natural mother.

Ashley Hutton, assistant district attorney, and Mark A. Dupree Sr., district attorney, for appellee.

Before MALONE, P.J., STANDRIDGE and WARNER, JJ.

PER CURIAM: Mother appeals the district court's order terminating parental rights
to her children L.H. and L.H. II. Specifically, she challenges the district court's findings
that her current unfitness is unlikely to change in the foreseeable future and that
termination is in the best interests of the children. Finding no error, we affirm.

FACTS

Mother is the natural mother of L.H., born in 2008, and L.H. II, born in 2011. In
2014, the State initiated child in need of care (CINC) proceedings for both children due to
Mother's long history of substance abuse, mental health issues, and unstable living
situation. The children were placed with their maternal great-grandmother during most of
the time the CINC case was pending.
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Mother regained custody of her children on July 31, 2017, approximately three
years after the CINC proceedings were initiated. In August 2017, Mother tested positive
for Oxycontin and struggled to produce documentation of her prescription for the
medication. In September 2017, Mother and the children were evicted. The court cases
were closed by journal entry dated December 12, 2017. In January and February 2018,
Kaw Valley Center (KVC) aftercare staff reported that Mother was not responding to
their attempts to reach her.

On March 20, 2018, Mother called the Kansas City, Kansas, Police Department,
reporting that she heard noises in the attic of her home and believed she was in danger.
When the police arrived, Mother became combative and was arrested for battery of a law
enforcement officer and child endangerment because L.H. and L.H. II were in the home
during the incident. Mother later admitted she had taken something while hanging out
with friends at a family barbecue the night before and, when mixed with her medication,
it made her delusional. She admitted to police that she was using marijuana at the time as
well. In light of Mother's arrest, the children were placed with their maternal grandmother
as a temporary safety plan.

A social worker with the Kansas Department for Children and Families (DCF)
interviewed the children on April 23, 2018. Both children confirmed that they were at
home that evening and "in the middle of the night" their mother was taken away by the
police. The DCF social worker attempted to interview Mother, but she declined to be
interviewed. The social worker asked KVC aftercare staff for assistance in getting
Mother interviewed, but KVC reported Mother was unwilling to talk to KVC staff as
well. KVC staff reported that Mother currently was testing positive for multiple drugs
and that Mother had been directed to get a drug assessment but, as of April 20, 2018,
Mother had not done so.

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On April 24, 2018, the State filed an Application for an Ex Parte Order of
Protective Custody and a CINC petition for each of the two children. Mother ultimately
stipulated to the fact that both L.H. and L.H. II were children in need of care.
Specifically, Mother admitted that she had drugs in her system when the CINC petition
was filed, that she needed (and was presently enrolled in) a drug treatment program, and
that she had mental health issues for which she needed to continue pursuing treatment
and taking her medications. On July 27, 2018, the district court accepted Mother's
stipulations, found the children to be in need of care, and held reintegration remained a
viable option in both cases. In conjunction with these findings, the district court adopted
the following interim orders:

"1) That the subject minor child(ren) shall be in the custody of Kansas Department
for Children and Families who shall have the authority to consent to the
performance and furnishing of hospital, medical, surgical or dental treatment or
procedures, pursuant to [K.S.A.] 38-2217;
"2) That visitation shall be at the discretion of KVC personnel until further order of
the court;
"3) That the mother shall obtain initial/family assessments and follow the
recommendations;
"4) That the mother shall sign the necessary releases of information;
"5) That the mother shall obtain and/or maintain stable income and provide
verification;
"6) That the mother shall obtain and/or maintain stable housing and provide
verification;
"7) That the mother shall contact the CSO once a month and/or prior to address or
phone changes;
"8) [Crossed out by the district court];
"9) That [Mother] shall submit timely, random, negative [urinalysis tests] and/or
breathalyzers to the CSO and KVC, provide all prescribed medications to the
CSO and KVC;
"10) That [Mother] shall participate in a drug and alcohol assessment and follow the
recommendations;
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"11) That [Mother] shall participate in a mental health assessment and follow the
recommendations."

On October 29, 2018, the district court conducted a review hearing and kept the
interim orders in place. On December 28, 2018, the State moved to terminate Mother's
parental rights in both cases, alleging Mother had failed to comply with most of the
district court's orders. Specifically, the State claimed that Mother: (1) failed to provide
proof of stable income, (2) was living with a known drug felon, (3) was discharged
unsuccessfully from a drug treatment program in October 2018, (4) failed to complete a
mental health assessment, and (5) either failed to appear or submitted positive urinalysis
(UA) drug tests.

The termination hearing was held on February 13, 2019. The State called Mother's
Court Services Officer (CSO), Ramona MacDougall, as a witness. MacDougall had
served as Mother's CSO since the initiation of the 2014 CINC cases and had been
working with the family for almost four years. MacDougall testified that Mother did not
provide any direct verification of her employment. Instead, Mother provided MacDougall
with a letter from KVC that previously had been submitted in the 2014 CINC cases. This
letter indicated that Mother provided in-home health services to a disabled man.
Somebody had "updated" the letter for the current CINC cases by crossing out the
original date and writing in 2019. Mother also provided MacDougall a single pay stub
from a temporary employment agency for July/August 2018. MacDougall noted,
however, that the name of the temporary employment agency on the pay stub was not the
same as the agency Mother claimed she worked for.

Regarding Mother's housing, MacDougall testified that she received an expired
lease agreement and was unsure if Mother had signed a new lease or was on a month-to-
month arrangement. Although Mother claimed that she lived alone, MacDougall testified
that KVC workers had seen mail addressed to Mother's boyfriend, Daron Easley, at
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Mother's residence. Easley was a known felon who had been convicted of multiple drug
offenses. As a result of those convictions, Easley was required to register as a drug
offender. When MacDougall checked the offender registry, she found that Easley had
listed Mother's address as his home address. This concerned MacDougall not only
because L.H. and L.H. II potentially would be living with a convicted drug felon but also
because of Mother's own extensive history with substance abuse. MacDougall said she
attempted to conduct an initial assessment with Easley on three separate occasions but
was unsuccessful.

Finally, regarding Mother's history of mental health issues and drug use,
MacDougall testified that Mother failed to provide verification to show that she had
completed a mental health assessment or a substance abuse treatment program.
MacDougall also testified that she requested five UA tests from Mother over the course
of the current CINC cases, but Mother failed to appear for three of those tests. The UA
tests that Mother did submit to MacDougall tested positive for marijuana, oxycodone, and
benzodiazepines.

MacDougall testified that KVC had made attempts to obtain UA tests from Mother
as well, but Mother failed to appear on any of the eight dates that she was called in. KVC
also placed Mother on its color code system, but Mother failed to appear on 32 out of the
36 dates that her color was called. The four times she did appear, Mother tested positive
for amphetamines, methamphetamines, cocaine, marijuana, oxycodone, and
benzodiazepines. Similarly, the five UA tests that Mother submitted to KVC aftercare
specialists tested positive for marijuana and oxycodone. And finally, MacDougall
testified that on the day of the termination hearing, Mother submitted a UA test that
tested positive for marijuana and oxycodone.

Mother also testified at the termination hearing and largely confirmed
MacDougall's testimony about her continued drug use as well as her positive and missed
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UA tests throughout the CINC proceedings. Mother also admitted that she had not yet
completed her substance abuse treatment or mental health/drug assessments but claimed
that she had just received her Medicaid card and was therefore planning on getting those
tasks done in the near future. Notably, Mother received her Medicaid card because, at the
time of the termination hearing, she was five months pregnant. Mother identified Easley
as the father of her unborn child—and admitted that he used her address as a mailing
address—but denied that he was living with her and claimed that she was unaware that
Easley had listed her address on his drug offender registration. Finally, Mother testified
that she was working for a disabled man as an in-home health services provider as well as
for a temporary employment agency, on an on-call basis, as a warehouse worker.

The children's maternal great-grandmother was the only other person to testify at
the termination hearing. She confirmed that L.H. and L.H. II were placed with her and
that she had been the primary caregiver for both children for almost five years. In that
time, great-grandmother noted that Mother had attempted to interrupt and interfere with
how she took care of the children. Mother typically did so by texting and calling L.H.
incessantly and at all hours, including throughout the night when L.H., who was 10 years
old, was supposed to be sleeping. When great-grandmother attempted to limit this
communication, Mother sent her nasty and threatening text messages. One of those text
messages purportedly stated that Mother would instruct L.H. to kill great-grandmother in
her sleep. Mother later contested the exact wording of those text messages but did not
contest the fact that she had sent them.

After hearing all of the testimony, the district court found that Mother's conduct or
condition rendered her unfit to properly care for L.H. and L.H. II and that this conduct or
condition was unlikely to change in the foreseeable future. In light of the physical,
mental, and emotional needs of L.H. and L.H. II, the district court also held that
termination of Mother's parental rights was in the best interests of both children. Based
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on those findings, the district court terminated Mother's parental rights and ordered L.H.
and L.H. II into the State's custody. Mother now timely appeals that termination.

ANALYSIS

Mother does not appear to contest that presently, her conduct or condition renders
her unfit to properly care for her children. Instead, she argues that the district court erred
when it found by clear and convincing evidence that the conduct or condition rendering
her unfit is unlikely to change in the foreseeable future and that termination of her
parental rights is in the best interests of the children.

When a child has been adjudicated a child in need of care, a district court may
terminate parental rights if it finds by clear and convincing evidence that a parent's
conduct or condition renders him or her unfit to properly care for the child and that the
conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2018 Supp.
38-2269(a). In making that determination, a district court must consider a nonexclusive
list of statutory factors, any one of which, standing alone, may establish grounds for
termination. K.S.A. 2018 Supp. 38-2269(b)-(c), (f). After making a finding of unfitness, a
district court also must consider whether termination of parental rights is in the best
interests of the child. K.S.A. 2018 Supp. 38-2269(g)(1). In making that determination, the
district court must "give primary consideration to the physical, mental and emotional
health of the child. If the physical, mental or emotional needs of the child would best be
served by termination of parental rights, the court shall so order." K.S.A. 2018 Supp. 38-
2269(g)(1).

1. Foreseeable future

When an appellate court reviews a district court's decision to terminate parental
rights, it considers whether, when viewing the evidence in the light most favorable to the
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State, "a rational factfinder could have found it highly probable, i.e. by clear and
convincing evidence, that the parent's rights should be terminated." In re K.W., 45 Kan.
App. 2d 353, 354, 246 P.3d 1021 (2011); see In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d
594 (2008). Appellate courts do not, however, reweigh conflicting evidence, pass on the
credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. As noted
above, Mother does not appear to contest that she is presently unfit. Therefore we must
only decide whether, when viewed in a light most favorable to the State, there is clear and
convincing evidence that Mother's unfitness is unlikely to change in the foreseeable
future. See State v. Williams, 298 Kan. 1075, 1083, 319 P.3d 528 (2014) ("When a
litigant fails to adequately brief an issue it is deemed abandoned.").

Kansas courts consistently hold that what constitutes the "foreseeable future" must
be evaluated from the child's perspective, not the parent's. In re C.C., 29 Kan. App. 2d
950, 954, 34 P.3d 462 (2001). Children perceive time differently than adults do and
therefore courts must strive to decide cases in "'child time'" rather than "'adult time.'" In
re L.B., 42 Kan. App. 2d 837, 842, 217 P.3d 1004 (2009); see In re A.A., 38 Kan. App. 2d
1100, 1105, 176 P.3d 237 (2008) ("[A] child deserves to have some final resolution
within a time frame that is appropriate from that child's sense of time."). Further, district
courts may look to a parent's past conduct as an indicator of future behavior. In re Price,
7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982).

The district court based its finding of unfitness on the following statutory factors:

"Emotional illness, mental illness, mental deficiency or physical disability of the
parent, of such duration or nature as to render the parent unlikely to care for the ongoing
physical, mental and emotional needs of the child, [K.S.A. 2018 Supp.] 38-2269(b)(1);
"The use of intoxicating liquors or narcotic or dangerous drugs of such duration
or nature as to render the parent unable to care for the ongoing physical, mental or
emotional needs of the child, [K.S.A. 2018 Supp.] 38-2269(b)(3);
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"[F]ailure of reasonable efforts by appropriate public or private agencies to
rehabilitate the family, [K.S.A. 2018 Supp.] 38-2269(b)(7);
"[L]ack of effort on the part of the parent to adjust the parent's circumstances,
conduct or conditions to meet the needs of the child, [K.S.A. 2018 Supp.] 38-2269(b)(8)."

Again, Mother does not contest that there is clear and convincing evidence supporting the
district court's finding that each of the above factors are present in this case and currently
render her unfit to properly care for her children. Instead, she argues that there was not
clear and convincing evidence to show that those factors would remain present in the
foreseeable future.

Regarding the first factor—that Mother was unfit due to her emotional or mental
illness, mental deficiency, or physical disability—Mother argues that she received a
Medicaid card a few weeks before the termination hearing and therefore could afford to
get a mental health evaluation. But Mother admitted that she only received the Medicaid
card due to her pregnancy. It is therefore unclear how, if at all, Mother will be able to
continue mental health treatments after the pregnancy is over. Further, the mental health
evaluation is only the first step in the treatment process. Mother had been involved in
these current CINC cases for more than nine months and still had not completed a mental
health evaluation. This fact weighs against Mother's argument that she will be able to
successfully manage the symptoms of her mental illness in the foreseeable future,
particularly when that future is considered within the context of "child time." See In re
L.B., 42 Kan. App. 2d at 842; In re C.C., 29 Kan. App. 2d at 954.

Regarding the second factor—that Mother was unfit due to the use of intoxicating
liquors, narcotics, or dangerous drugs—Mother claims she had stable housing and
employment and also had a drug and alcohol evaluation scheduled for a few days after
the termination hearing. Mother also claims she successfully stopped using drugs and got
her kids back before, in the 2014 CINC cases, and therefore "there was no reason to
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believe that she could not be successful again in the foreseeable future." But neither of
these arguments are supported by the record. The evidence presented at the termination
hearing establishes that Mother did not have stable housing and employment and that her
employment and housing situations were uncertain, at best. Similarly, regardless of what
Mother was able to do in the previous CINC cases, the undisputed evidence establishes
that she failed to submit a single negative UA test throughout the current CINC
proceedings—including on the day of the termination hearing. These facts are clear and
convincing evidence that her use of dangerous drugs is unlikely to change in the
foreseeable future. See In re Price, 7 Kan. App. 2d at 483. That conclusion is only
strengthened when the future is considered within the context of "child time." See In re
L.B., 42 Kan. App. 2d at 842.

The district court also found that public and private agencies have been unable to
rehabilitate the family and that Mother has failed to adjust her circumstances to meet the
needs of the children. In support of her claim that she could adjust her circumstances to
meet the needs of her children in the foreseeable future, Mother points to the fact that the
children had been successfully reintegrated with her before so there is "no reason to
believe that she could not be successful again in the foreseeable future." But again, this
argument finds no support in the record. As noted above, Mother has failed to complete
even the first step on many of the requirements for reintegration with her children. And
even if she had, her continued use of illegal and dangerous drugs throughout the CINC
proceedings provides strong evidence of her unwillingness to adjust her circumstances to
meet the needs of her children.

In sum, when viewed within the context of "child time," we find clear and
convincing evidence to support the district court's finding that the statutory factors
rendering Mother an unfit parent were unlikely to change in the foreseeable future. See In
re L.B., 42 Kan. App. 2d at 842; In re C.C., 29 Kan. App. 2d at 954.

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2. Best interests of the children

A district court's best interests determination must be based upon a preponderance
of the evidence and is soundly within the court's judicial discretion. In re R.S., 50 Kan.
App. 2d 1105, 1115-16, 336 P.3d 903 (2014). Appellate courts therefore review a best
interests determination under the traditional abuse of discretion standard. 50 Kan. App.
2d at 1116. A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the district court, (2) it is based on an error of law, or (3)
it is based on an error of fact. Wiles v. American Family Life Assurance Co., 302 Kan. 66,
74, 350 P.3d 1071 (2015). In this case, Mother does not argue that the district court's best
interests determination was based on a mistake of fact or law. Instead, she claims no
reasonable person would agree with the district court's decision because it is not
supported by the evidence in the record.

When making a best interests determination, the district court must "give primary
consideration to the physical, mental and emotional health of the child." K.S.A. 2018
Supp. 38-2269(g)(1). A panel of this court has interpreted this statutory mandate to
require the court to

"weigh the benefits of permanency for the children without the presence of their parent
against the continued presence of the parent and the attendant issues created for the
children's lives. In making such a determination, we believe the court must consider the
nature and strength of the relationships between children and parent and the trauma that
may be caused to the children by termination, weighing these considerations against a
further delay in permanency for the children." In re K.R., 43 Kan. App. 2d 891, 904, 233
P.3d 746 (2010).

Mother claims that there was no evidence to show that the children's physical,
mental, and emotional health would be served by the termination of her parental rights
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and that, by contrast, the evidence presented at the termination hearing demonstrated that
Mother loved her children and was bonded with them.

There was evidence presented at the termination hearing to establish that Mother
loved and had a bond with her children. Ultimately, though, the district court found that
this was insufficient to overcome the other factors at issue in the case. The court noted
that the children had been living with their great-grandmother. She had taken care of the
children for four of the last five years and was a viable permanency resource once rights
were terminated. And during the entire time these CINC cases were pending, Mother was
still struggling in all areas and appeared to be unable to provide stability in the
foreseeable future.

Courts must evaluate parents by actions and not intentions; therefore, the district
court may find it in the best interests of the children to terminate parental rights
notwithstanding the fact that parents are bonded with and love their children. See In re
A.A., 38 Kan. App. 2d at 1105. While Mother has demonstrated she loves her children,
she failed to make any progress while this CINC case was pending to stabilize her mental
health, refrain from using drugs, or maintaining stable income and housing. A reasonable
person could agree that the children's need for permanency and the harm that could be
caused by its further delay outweighed the risk of detriment caused by severing the
children's relationship with Mother. For this reason, we find the district court did not
abuse its discretion in finding that terminating Mother's parental rights was in the
children's best interests.

Affirmed.