In re M.V.J.

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NOT DESIGNATED FOR PUBLICATION

No. 117,401


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of M.V.J.,
A Minor Child.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed November 9, 2017.
Affirmed.

Anita Settle Kemp, of A.S. Kemp Law, Inc., of Wichita, for appellant natural mother.

Julie A. Koon, assistant district attorney, and Marc Bennett, district attorney, for appellee.

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

PER CURIAM: C.M.J. appeals the order of the Sedgwick County District Court
terminating her parental rights to M.V.J., her 13-year-old daughter. C.M.J. challenges the
district court's ruling admitting her positive drug test as evidence at the termination
hearing and, more broadly, the sufficiency of the evidence demonstrating her unfitness
and that M.V.J.'s best interests were served by severing their relationship. We find the
district court properly considered the drug test and appropriately found C.M.J.'s chronic
and seemingly intractable substance abuse problems coupled with M.V.J.'s pronounced
special needs sufficiently supported the termination order. We, therefore, affirm.


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FACTUAL AND PROCEDURAL HISTORY

When she was born in 2003, M.V.J. had cocaine in her system. The record in this
case shows cocaine to be C.M.J.'s drug of choice, although she has also abused alcohol
from time to time. M.V.J. had a stroke or some other neurological injury at birth. She
suffers from a seizure disorder for which she takes medication. And she has marked
intellectual and social limitations. At the time of the termination hearing about a year ago,
M.V.J. could not recognize numbers or letters and was unable to brush her teeth, bathe, or
dress without considerable help. She apparently could not learn those tasks simply
through the repetitive performance of them, according to her foster caregivers.

In 2007, M.V.J. and a younger sibling were found to be children in need of care
and were temporarily removed from C.M.J.'s custody. C.M.J. neglected them principally
because of her cocaine addiction. The family was reintegrated about 18 months later after
C.M.J. underwent drug treatment and completed various other classes and programs. The
district court took judicial notice of that case and a number of criminal and traffic
proceedings against C.M.J. since then. By the time this case began in spring 2015, C.M.J.
had her driver's license suspended and was on probation.

C.M.J. was taken into custody in May 2015 on a probation violation apparently
stemming from an incident the month before when she drove to M.V.J.'s school while
intoxicated and hit a parked car there. Upon her arrest for the probation violation in that
criminal case, C.M.J. left M.V.J. with a friend who was visiting from out of town. The
friend, however, had to return home about 10 days later, effectively leaving M.V.J.
without adult supervision. M.V.J. was then taken into protective custody, and the district
attorney's office began this child in need of care proceeding. In the meantime, C.M.J. was
ordered to serve six months in jail on the probation revocation.

After being placed in state custody, M.V.J. was given a hair follicle drug test that
showed positive for cocaine. At that time, C.M.J. expressed surprise about the test result
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to an investigator for the Department for Children and Families and disclaimed any
knowledge of how M.V.J. would have come into contact with cocaine.

The case manager assigned in this proceeding put together a 90-day reintegration
plan for C.M.J. and M.V.J. to go into effect upon C.M.J.'s release from jail in November
2015. According to the evidence admitted at the termination hearing, C.M.J. worked
diligently and productively toward completing her reintegration tasks and had good
supervised visits with M.V.J. As part of the reintegration protocols, C.M.J. provided a
hair sample in late January 2016 for drug testing. The lab results were positive for
cocaine and a metabolite of cocaine. C.M.J. adamantly denied having used cocaine in the
preceding nine months. As we understand the record, this test was not admitted as
substantive evidence at the termination hearing—that is, to show C.M.J. had used
cocaine—but merely to explain how the case manager and other social service agency
representatives then handled the case. Visitation between C.M.J. and M.V.J. was
immediately curtailed.

The case manager testified that the positive drug test surprised her, especially
given the progress C.M.J. was making with other aspects of the family reintegration plan.
The case manager arranged for C.M.J. to take a second hair follicle drug test in June 2016
through a different laboratory. That test also showed C.M.J. had used cocaine. Again,
C.M.J. denied doing so. The district attorney introduced the results of this testing at the
termination hearing over C.M.J.'s objection—a point on appeal we address shortly.
C.M.J. failed to show up for several scheduled drug tests after that.

At the termination hearing, the case manager testified that the positive drug test
raised several substantial concerns weighing against family reintegration. First, C.M.J.
apparently had returned to her drug of choice, thereby highlighting a recurrent, deep-
seated substance abuse problem that a one-time use of another drug might not suggest.
Second, C.M.J. refused to acknowledge her relapse, establishing both a lack of candor
and an attitude incompatible with effective counseling and treatment. Had C.M.J.
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admitted using cocaine, the case manager suggested a delay in the termination
proceedings might have been considered to allow for treatment and an extension of the
reintegration plan.

The case manager, however, recommended termination of C.M.J.'s parental rights
given her history of substance abuse and continued use of cocaine. That circumstance
likely rendered C.M.J. incapable of addressing M.V.J.'s multidimensional needs and
placed her at high risk for additional criminal problems that would only further disrupt
M.V.J.'s home environment. C.M.J.'s unwillingness to recognize and admit her
continuing drug abuse impaired any chance her addiction might be successfully treated in
a timely fashion. The case manager also cited as a secondary concern C.M.J.'s decision to
continue driving on a regular basis despite having a suspended driver's license—conduct
that also could send her back to jail. See K.S.A. 2016 Supp. 8-262(a) (mandatory terms of
incarceration for repeatedly driving with suspended license).

C.M.J. testified at the termination hearing and, pertinent here, denied having used
cocaine after April 2015. She said she had no explanation for the positive drug test
results. C.M.J. otherwise testified to the steps she had taken to comply with the family
reintegration plan, her love for M.V.J., and her desire to be a parent to her daughter.

The district court made an express credibility determination against C.M.J. and
found she had used cocaine as indicated by the June 2016 hair follicle drug test. Based
principally on that conclusion and C.M.J.'s extensive substance abuse history, the district
court found C.M.J. could not provide the kind of stable and especially attentive
environment M.V.J. required because of her particular needs. The district court found
C.M.J. to be unfit as a parent on three statutory grounds:

• Alcohol or drug abuse of such a character as to render the parent unable to care
for the ongoing physical, mental, or emotional needs of the child, as provided in K.S.A.
38-2269(b)(3);
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• A lack of effort on the part of the parent to change circumstances, conduct, or
conditions to meet the needs of the child, as provided in K.S.A. 38-2269(b)(8); and

• A failure to carry out a reasonable plan directed toward the integration of the
child into a parental home, as provided in K.S.A. 38-2269(c)(3).

The district court also found C.M.J.'s unacknowledged drug abuse was unlikely to
improve in the foreseeable future in a way that would alleviate her parental unfitness.
Finally, the district court found termination of C.M.J.'s parental rights would be in
M.V.J.'s best interests in securing a measure of stability for her in her current foster
placement that would likely continue pending any adoption. Consistent with those
determinations, the district court entered an order terminating C.M.J.'s parental rights.
C.M.J. has appealed.

LEGAL ANALYSIS

C.M.J. raises two issues on appeal: (1) The evidentiary foundation to admit the
results of the hair follicle drug test done in June 2016; and (2) the sufficiency of the
evidence to support the legal components of a termination finding—parental unfitness,
duration of the unfitness, and the child's best interests. We take up the points in that
order.

Drug Test Results

C.M.J. contends the district court erred in admitting the results of the hair follicle
drug test that showed she has used cocaine. In the district court, C.M.J. emphasized the
district attorney's failure to call the chemist who performed the initial testing as a witness
and secondarily questioned the sufficiency of the chain of custody of the hair sample. On
appeal, C.M.J. shifted focus more to the chain of custody. Neither line of attack
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establishes error. C.M.J. does not dispute the science behind or the general accuracy of
hair follicle testing as a means of detecting drug use.

As a general rule, the district court's determination on whether a sufficient
foundation has been shown to admit otherwise relevant evidence entails an exercise of
judicial discretion. State v. Ernesti, 291 Kan. 54, Syl. ¶ 10, 239 P.3d 40 (2010). Here, the
general rule governs, and the drug test was plainly relevant. We, therefore, review for
abuse of discretion. A district court exceeds that discretion 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 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256
P.3d 801 (2011).

Here, a technician testified about how he obtained a hair sample from C.M.J.,
assigned an identification number to the sample, packaged the sample, and had it shipped
to the laboratory for testing. The district attorney called personnel from the testing
laboratory as witnesses. They testified to the procedures for logging in samples, tracking
those samples within the laboratory, documenting test results, and maintaining records of
those steps keyed to the assigned identification number. The district attorney did not call
the chemist performing the initial testing of C.M.J.'s hair sample because that individual
no longer worked for the laboratory. When an initial test comes back positive for a
controlled substance, the laboratory runs a second or confirming test. The chemist
performing the confirming test was a witness at the termination hearing. The confirming
test was also positive for cocaine.

Besides the departed chemist, the district attorney did not call as witnesses
everyone who handled the hair sample at the laboratory. For example, the person who
received the sample at the laboratory did not testify. But another witness explained the
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procedures for compiling the log on which samples are tracked within the laboratory and
noted the entries for C.M.J.'s hair sample.

The district court overruled C.M.J.'s objections to the admission of the test results,
finding adequate proof of a reliable chain of custody for the hair sample and a sufficient
foundation for the reported positive for cocaine. We cannot say the district court abused
its discretion in admitting the test results. The testimony established a foundation for
admitting the positive result of the confirming test. The evidence proved a chain of
custody that reasonably showed C.M.J.'s hair had been tested and the sample had not
been materially altered before the testing. See State v. Horton, 283 Kan. 44, 62, 151 P.3d
9 (2007). The district attorney was not required to account for every link in the chain of
custody with testimony from each person handling the evidence. Strict procedures for
identifying and processing evidence, along with reliable documentation that those
procedures have been followed with respect to a particular piece of evidence, may be
sufficient to forge some or even most of those links. Even if there were some gaps, that
would affect the weight to be given the evidence rather than its admissibility. 283 Kan. at
62.

The district court properly admitted and considered the results from the June 2016
hair follicle drug test.

Sufficiency of the Evidence for Termination

In considering the overall sufficiency of the evidence, we start with some general
principles and standards governing the termination of parental rights. 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 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
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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 has to 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 evidence have to be resolved to the State's benefit and against
C.M.J.

Having found unfitness, the district court then turns to 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 must accord
"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. An
appellate court reviews those sorts of decisions for abuse of discretion using the criteria
we have already outlined.

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The district court identified three statutory grounds on which C.M.J. was shown to
be unfit. Each, however, pivoted on C.M.J. continuing abuse of cocaine and, to a lesser
extent, alcohol. Under K.S.A. 2016 Supp. 38-2269(b)(3), C.M.J.'s substance abuse is the
specified statutory factor rendering her unfit. The other two statutory factors indirectly
arise from C.M.J.'s inability to remain drug free for any extended period.

The evidence established C.M.J. has abused cocaine for years and appears to be
incapable of permanently escaping its clutches, notwithstanding numerous attempts that
included a previous child in need of care proceeding. C.M.J.'s drug abuse has left her
unable to meet the especially pronounced needs of M.V.J., which demand nearly constant
attentiveness from her caregivers. Likewise, C.M.J.'s drug abuse has fostered substantial
collateral obstacles for her, including the suspension of her driver's license and significant
time in jail time for continuing negative contacts with the criminal justice system.

Particularly troubling to the assigned case manager and, in turn, to the district
court has been C.M.J.'s adamant denial that she has used cocaine since April 2015—an
assertion at odds with the hair follicle drug test. The contradiction, which the district
court resolved against C.M.J., not only undercuts her credibility but represents a
substantial impediment to effective intervention and treatment.

Those circumstances sufficiently support the district court's determination that
C.M.J. was presently unfit to parent M.V.J., taking account of the degree of proof needed
to satisfy appellate review on an issue that required clear and convincing evidence in the
first instance. Similarly, we find the circumstances, particularly C.M.J.'s repeated denials
of recent drug use, justified the district court's conclusion that the condition of unfitness
would continue for the foreseeable future. The district court's findings warranted
termination of C.M.J.'s parental rights if termination would be in M.V.J.'s best interests.

Although we have no reason to doubt the sincerity of C.M.J.'s expressions of love
and concern for M.V.J., they are not the test of best interests. By all accounts, M.V.J.
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requires highly attentive care on a daily basis without interruption or disruption. The
evidence indicates M.V.J. has been afforded that stability in a foster care placement
expected to continue until she becomes part of an adoptive family. C.M.J. could, at most,
offer an environment fraught with uncertainty and more likely with drug-related neglect
and even abandonment of M.V.J. We find the district court took full measure of the facts
and the governing law in making a best interests determination favoring termination. And
we readily conclude other district courts would have come to the same decision in
comparable circumstances. In short, we find no abuse of discretion on that score.

Having considered the points C.M.J. has raised on appeal in light of the record, we
conclude the district court did not err in terminating her parental rights with respect to
M.V.J.

Affirmed.