In re O.P.

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NOT DESIGNATED FOR PUBLICATION

Nos. 121,009
121,010

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of O.P. and R.P.,
Minor Children.


MEMORANDUM OPINION

Appeal from Anderson District Court; ERIC W. GODDERZ, judge. Opinion filed October 11, 2019.
Affirmed.

Jessica F. Leffler, of Law Office of Jessica F. Leffler, of Ottawa, for appellant natural mother.

Brandon L. Jones, county attorney, for appellee.

Before STANDRIDGE, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: Mother appeals the termination of her parental rights to her two
children. The district court found that Mother is unfit, that the condition or conduct
rendering her unfit is unlikely to change in the foreseeable future, and that termination is
in the best interests of the children. Mother presents three arguments on appeal. First, she
argues that the district court erred in applying the statutory presumption of unfitness.
Second, she argues that even if she were properly presumed unfit under the statute, she
provided sufficient evidence at the hearing to overcome the presumption. Third, she
argues the State did not present sufficient evidence to show that she was unfit and her
conduct was unlikely to change in the foreseeable future. Finding no error, we affirm.



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FACTUAL AND PROCEDURAL BACKGROUND

Mother is the natural mother of O.P. and R.P., twins born in 2008. On August 22,
2017, S.P., the twins' maternal stepgrandmother (Grandmother), went to the Garnett
Police Department to report concerns about the safety of the twins. Grandmother reported
that Mother and the twins were living in Mother's vehicle at an unknown location and
that Mother had a methamphetamine addiction and violent tendencies.

On August 23, 2017, Mother enrolled the twins in Garnett Elementary School and
agreed to temporarily live with the twins at Grandmother's home. On August 24, 2017,
Mother left Grandmother's house and did not return until August 26, 2017. Upon her
return, Mother attempted to remove the twins from Grandmother's house. Fearing for the
twins' safety if they were to leave with Mother, Grandmother called the police.

A police officer responded to Grandmother's call. Mother told the officer that she
and the twins got kicked out of their old house in July and since then had been staying in
Ottawa with a friend of hers. Mother insisted the family did not live in a car. Mother also
reported that she was bipolar and that the last time she had used illegal drugs was eight
months ago. Mother stated to the officer that she and the twins were moving back to her
friend's house in Ottawa. The officer called the friend to verify Mother's statement and
the friend "sounded surprised and stated, 'Oh, really?'" before telling the officer, "'I guess
that would be ok, she still has some of her stuff here."

The officer also spoke with the twins. They told the officer that they mostly lived
out of the family's car and only occasionally stayed at someone's house. Both children
said they were scared of Mother because she would grab them by the cheeks or throat and
squeeze very hard. They also reported that Mother gave them pills each night, which they
claimed knocked them out and caused them not to remember anything. The twins said
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they did not want to go with Mother. When confronted with the children's statements,
Mother denied that she abused the children and denied the family lived in a car.

The police officer decided to take the children into protective custody. He
gathered the children's medications and clothing. Grandmother told the officer that she
did not want Mother on her property. Mother tried to leave, but had car problems. Even
after putting a can of gas in the car, it took several jumps to start the car and once it ran, it
would die any time it was put in reverse. The officer noticed that the car's windshield was
"smashed" in two places limiting visibility; he also noticed that the car was so full of
property that the only place where a person could sit was the driver's seat. He further
noted that although a friend of Mother's purchased a can of gas for Mother to put in her
car, the amount of gas—by itself—would not be enough to drive to Ottawa. The officer
took this to mean that Mother did not have the means to make it to Ottawa with the twins
as she had planned.

The police officer swore out affidavits detailing these events and on August 29,
2017, the State filed child in need of care (CINC) petitions alleging the twins were
children in need of care. At a temporary custody hearing on September 12, 2017, the
court placed the twins in the temporary legal custody of the Kansas Department for
Children and Families (DCF). DCF contracted with KVC to provide case management
services for the children and Mother. As part of these case management services, KVC
placed the twins in the home of Grandmother and Grandfather, who is Mother's father.

On October 31, 2017, the district court adjudicated the twins to be children in need
of care. KVC created a case plan for Mother with the goal of reintegration. The initial
case plan required that Mother:

 maintain contact with KVC and update KVC with changes in contact information;
 maintain transportation;
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 obtain and maintain housing;
 obtain and maintain employment;
 sign all releases requested by KVC;
 successfully complete parenting classes;
 complete a mental health intake and follow all recommendations; and
 participate in family therapy with the twins.

The court held a disposition hearing on December 5, 2017, during which it
approved the case plan and the goal of reintegration of the twins with Mother. Although
KVC requested Mother to provide a urinalysis test (UA) on the date of the hearing,
Mother was unable to provide a sample. KVC also requested Mother provide a UA on
January 23, 2018, but she again was unable to provide a sample. On February 19, 2018,
Mother was able to provide a sample, which tested positive for methamphetamine. On
February 27, 2018, Mother failed to appear for a scheduled UA.

KVC developed a second case plan for Mother. This second case plan required
that Mother comply with the original case plan tasks, as well as the following additional
tasks:

 follow all recommendations from her parenting assessment;
 obtain her own phone so that KVC can contact her; and
 submit to random UAs as requested by KVC.

The court approved the new case plan and kept reintegration as the permanency
goal. KVC requested a UA on March 30, 2018, but Mother was unable to provide a
sample. Although Mother was scheduled for seven weekly UAs from April 4, 2018, to
May 21, 2018, Mother failed to appear for any of the scheduled drug tests.

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On May 29, 2018, the district court held another review hearing. Given KVC's
concerns that Mother was using drugs, the district court ordered Mother to complete a
drug and alcohol assessment and follow any recommendations made as a result of the
assessment. Mother completed the drug and alcohol assessment as ordered and was
diagnosed with amphetamine use disorder. Although outpatient treatment was
recommended, Mother did not follow the recommendation. In the six weeks after the
hearing, Mother was scheduled to submit to five UAs. On June 4, 2018, and on June 20,
2018, she failed to appear. On June 25, 2018, she appeared but was unable to provide a
sample. On July 3, 2018, she failed to appear. She did provide a UA on July 11, 2018, as
scheduled, but tested positive for methamphetamine on that date.

On July 17, 2018, the district court held another review hearing. On July 23, 2018,
Mother appeared for a scheduled UA, but was unable to provide a sample. She ultimately
submitted to a mouth swab instead, which came back negative. She had another negative
mouth swab on August 2, 2018.

On August 10, 2018, the State moved to terminate Mother's parental rights. The
State alleged Mother was "unfit by reason of conduct or condition which renders the
parents unable to care properly for the children and the conduct or condition is unlikely to
change in the foreseeable future." The State attached a lengthy document detailing
Mother's progress with KVC. The document stated:

"[Mother] does not have housing
"[Mother] has not shown proof of employment
"[Mother] has not followed through with submitting UAs as requested—She has a few
positive UAs and has no showed many requests
"[Mother] is not following through with her drug and alcohol assessment
recommendations which included outpatient treatment
"[Mother] is not following through with her parenting assessment recommendation of
medication management and taking medications as prescribed.
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"Family therapy has not been completed as the children's therapist does not feel the
children are ready for family therapy."

The court held a review hearing on August 27, 2018. The court subsequently
scheduled a hearing for November 9, 2018, to hear evidence on the State's motion to
terminate parental rights.

On August 22, 2018, less than two weeks after the State filed its motion to
terminate parental rights, Mother tested positive for methamphetamine.

On November 9, 2018, the district court held the evidentiary hearing as scheduled.
The first witness called by the State was Fawn Gahman-Amos, who had been the KVC
family case manager assigned to the case until September 2018, which was about a
month after the motion to terminate parental rights was filed and two months before the
hearing. She testified that during the 13 months in which she was the case manager,
Mother did complete some of her case plan tasks but did not complete most of them.
With regard to the tasks Mother did complete, Gahman-Amos testified Mother provided a
current phone number, signed necessary releases for KVC, completed a mental health
intake, and followed the mental health recommendations.

With regard to the tasks Mother did not complete, Gahman-Amos testified
extensively about Mother's failure to remain drug free, which we set forth in detail above.
Gahman-Amos also testified that Mother failed to maintain stable housing. Mother's
efforts at obtaining and maintaining adequate housing "varied." When the case started,
Mother was living in her car with the kids. Then, she moved in with a friend, but the
arrangement violated the terms of her friend's low income housing lease. At one point,
Mother said she obtained a house in Ottawa that "needed a lot of repairs done which she
was working on." But KVC was never able to do a walk-through of this home.

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Gahman-Amos also testified that Mother failed to maintain reliable transportation.
Specifically, Mother's car was not tagged or insured and the car routinely had mechanical
problems. With respect to employment, Gahman-Amos said that although Mother
reported she was employed at American Eagle, Mother failed to provide any verification
of that employment to KVC.

With regard to visits with the children, Gahman-Amos noted that Mother had not
had visitation since March 2018. Gahman-Amos explained, however, that visitation had
been discontinued because the children did not want to visit Mother and because the
children's therapist and guardian ad litem (GAL) recommended against visitation. During
the 14 months in which the case was pending, Mother saw O.P. 3 times and R.P. 5 times.
R.P. said she would like to see Mother but did not want to live with her. O.P. said he did
not want to see Mother at all. Although Mother did not attend family therapy as set forth
in the case plan, Gahman-Amos testified that the children's therapist did not recommend
family therapy because in the therapist's opinion, the children were not ready for it.

KVC permanency supervisor Michele Hockett was the next witness to testify.
Hockett's testimony was limited in scope to Mother's failure to secure and maintain stable
housing. It appears that Hockett testified because the current caseworker, Amy Karr, was
not available. Hockett testified that Karr had completed a "partial walk-through" of a
home in Ottawa where Mother was staying with her brother. Hockett said Karr called it a
"partial" walk-through because Karr reported that she had not been permitted to take
pictures or observe a bedroom where Mother's brother was sleeping. Hockett testified that
Karr's report reflected that Mother told Karr that this was not the home where she wanted
to reintegrate with the twins. Hockett said that as of the hearing, Mother had not
identified the home in which she did want to reintegrate with the children. As such,
Hockett said KVC had not completed a home inspection.

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Mother testified next. She said she had never been given a copy of the case plan
outlining her case plan tasks. She said she does have reliable transportation because she
lives with her brother, who has two properly licensed and insured vehicles that he allows
her to use. She said she worked for American Eagle "a couple of different times"
throughout the case and previously had shown Gahman-Amos a copy of an e-mail from
the staffing company confirming her employment in March.

Mother said she had a drug and alcohol evaluation done but could not afford to
participate in treatment. Despite this, she said she did not think she had a drug problem at
the time of the hearing. She pointed to the fact that she had provided clean UAs in the
two months before the hearing. Finally, Mother testified that she recently had obtained
stable housing but KVC had not yet completed the walk-through necessary to approve it.

The individual who owns the house in which Mother currently was residing
testified next. The owner testified that Mother was staying at the house with her brother.
The owner said she has an agreement with Mother and her brother that "[t]hey pay the
bills, take care of [the house], and everything's fine." She said she would be willing to
draft a lease if needed.

Mother's brother also testified. He said he previously lived with Mother and the
twins in the house and the arrangement was fine. He testified he had a good relationship
with Mother and the twins. He also said he had two reliable, tagged, and insured cars that
Mother could use "[a]t any point in time."

At this point, the court continued the hearing in order to hear testimony from the
GAL, who was not available to appear at the November 9, 2018 hearing. The GAL
testified that the twins "cannot stand the idea of being with their mother. She is angry.
She is emotionally abusive. [O.P.] has indicated, even, that she has been physically
abusive at least once or twice." The GAL stated that the children "prospered
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immediately" when they were placed with Grandmother and Grandfather. The GAL
recommended terminating Mother's parental rights, noting it was not in the twins' best
interests to go back to Mother "while she's trying to get her life together. Who knows
how long that's going to take and they're going to be grown up in a few years."

The district court found clear and convincing evidence that Mother was unfit by
reason of conduct or condition which rendered her unable to properly care for her
children and is unlikely to change in the foreseeable future. The court based its findings
on K.S.A. 2018 Supp. 38-2269(b)(3), (b)(7), (b)(8), and (b)(9), and the presumptions of
unfitness in K.S.A. 2018 Supp. 38-2271(a)(5), which the court found Mother had failed
to sufficiently rebut. The district court further found that Mother's condition was unlikely
to change in the foreseeable future and that it was in the best interests of the twins to
terminate Mother's parental rights.

ANALYSIS

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
child only upon clear and convincing proof of parental unfitness. K.S.A. 2018 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. 2018 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. 2018 Supp. 38-2269(b). And the statute
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lists four other factors to be considered if a parent no longer has physical custody of a
child. K.S.A. 2018 Supp. 38-2269(c). The State may also rely on one or more of the 13
statutory presumptions of unfitness outlined in K.S.A. 2018 Supp. 38-2271(a).

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 must be resolved to the State's benefit and against
Mother.

Upon a finding of unfitness, the district court must then decide whether
termination of parental rights is "in the best interests of the child." K.S.A. 2018 Supp. 38-
2269(g)(1). As directed by the language of K.S.A. 2018 Supp. 38-2269(g)(1), 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. See 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. See 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 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).



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1. Presumption of unfitness

In her first argument on appeal, Mother claims the district court erred in applying
the statutory presumption of unfitness. Under K.S.A. 2018 Supp. 38-2271(a)(5), a district
court may presume a parent is unfit if his or her children have been in an out-of-home
placement under court order "for a cumulative total period of one year or longer and the
parent has substantially neglected or willfully refused to carry out a reasonable plan,
approved by the court, directed toward reintegration."

Mother concedes the twins were in an out-of-home placement, under court order,
for more than a year at the time of the termination hearing. Nevertheless, she contends
that there is insufficient evidence in the record to support a finding that she substantially
neglected to carry out a reasonable plan directed toward reintegration. In support of her
contention, Mother admits she failed to complete some of the case plan tasks but argues
her failure to do so was based on a misunderstanding of her ability to do so.

Mother's argument appears to be focused on the court's finding that she failed to
comply with the case plan tasks requiring her to follow the recommendations of her drug
and alcohol assessment, including but not limited to obtaining outpatient drug treatment
and submitting clean UAs when requested by KVC. Mother claims she did not participate
in outpatient drug treatment because she could not afford to do so. Had she been made
aware that she could obtain outpatient drug treatment at no cost to her, Mother says she
would have done so. We are not persuaded by Mother's argument.

With regard to drug treatment, Gahman-Amos testified at the termination hearing
that she gave Mother three options where KVC could help with the costs of treatment: a
free option in Lawrence, a free option in Topeka, and a reduced-cost one in Garnett
where KVC could cover the costs. Gahman-Amos testified that, in response to hearing
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those options, Mother said Lawrence and Topeka were too far and "the only time she'll
go to Garnett is for court."

At the hearing, Mother testified that she had a drug and alcohol evaluation done
but never saw the resulting report. Nevertheless, she said she understood from Gahman-
Amos that the report recommended outpatient treatment. But Mother said that Gahman-
Amos' testimony earlier in the hearing was the first time she ever heard that treatment in
Garnett would be free. Mother noted that if she had known treatment in Garnett would be
free, she currently would be enrolled in treatment. Despite this testimony, Mother went
on to assert that she did not think she currently had a drug problem. In support of this
assertion, Mother noted that her random UA screenings had been clean since the new
caseworker had taken over in September 2018.

In her argument, Mother essentially is asking this court to pass on the credibility
of witnesses and weigh conflicting evidence, which we are prohibited from doing by the
applicable standard of review. The evidence presented at the hearing and upon which the
court relied to find Mother presumptively unfit is as follows:

 Mother failed to participate in outpatient drug treatment, failed to appear for
scheduled UA testing on more than 10 separate occasions (despite knowing that
KVC considers a no-show as a positive test), failed to provide a sample at a
scheduled UA on 4 separate occasions, and tested positive for methamphetamine
on 3 occasions, one of which occurred after the State filed its petition to terminate
her parental rights.
 Mother failed to maintain employment, a conclusion supported by her own
admission at the hearing that her employment for American Eagle was temporary
and she was not working at the time of the termination hearing.
 Mother failed to maintain stable housing and maintain suitable transportation from
August 29, 2017 (when the State filed its CINC petition) through August 10, 2018
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(when the State filed its petition for termination of rights). Mother's late attempts
to comply with the case plan by moving in with her brother and identifying her
brother's cars as transportation on which she could rely are both too little and too
late to detract from the clear and convincing evidence in the record establishing
her failure to maintain stable housing and reliable transportation.

When viewed in the light most favorable to the State, there is clear and convincing
evidence that Mother substantially neglected or willfully refused to carry out a reasonable
reintegration plan. Accordingly, we find no error in the court's decision to find Mother
presumptively unfit under K.S.A. 2018 Supp. 38-2271(a)(5).

2. Rebutting the presumption of unfitness

When the presumption applies, "[t]he burden of proof is on the parent to rebut the
presumption of unfitness by a preponderance of the evidence." K.S.A. 2018 Supp. 38-
2271(b). In this case, then, Mother was required to show by a preponderance of the
evidence that she was presently fit and able to care for the twins, or that she would be fit
and able to care for the twins "in the foreseeable future." K.S.A. 2018 Supp. 38-2271(b).
The district court found Mother failed to provide sufficient evidence to satisfy her burden
of proof. On appeal, Mother asserts that she did present sufficient evidence to overcome
the presumption.

To resolve the issue raised by Mother, we must review the record, in a light most
favorable to the State, to determine whether clear and convincing evidence supports the
district court's finding that Mother failed to rebut the presumption of unfitness by a
preponderance of the evidence. In re B.D.-Y., 286 Kan. at 705. We find that the record
provides clear and convincing evidence for the district court's conclusion that Mother did
not rebut the presumption.

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In support of her claim that she rebutted the presumption of unfitness by a
preponderance of the evidence, Mother essentially raises the same arguments here that
she made above. She claims that she did not complete drug treatment because she could
not afford the treatment. But, as pointed out above, Gahman-Amos testified she directed
Mother to two free and one reduced cost treatment option, which also would be free
because KVC would pay the reduced cost. The district court evidently credited Gahman-
Amos' testimony over Mother's; this court cannot reweigh the evidence or reassess
witness credibility. In re B.D.-Y., 286 Kan. at 705.

Mother also argues that she had begun complying with requested UAs by the
current caseworker. True, the record reflects that Mother submitted two negative UAs
between September and November 2018. Nevertheless, as discussed above, the record
also shows that Mother no-showed more than 10 UAs and tested positive for
methamphetamine 3 times, including 1 time after the State warned it would move to
terminate her rights. The two negative UAs after the petition for termination of parental
rights had been filed but before the termination hearing falls far short of rebutting the
significant and consistent pattern of drug use and no-shows and general noncompliance
with her case plan during the 12-month time period from the filing of the CINC case to
the filing of the petition for termination of parental rights. Parental unfitness can be
judicially predicted from a parent's past history. See In re Price, 7 Kan. App. 2d 477,
483, 644 P.2d 467 (1982). We find clear and convincing evidence supports the district
court's decision finding that Mother failed to rebut the presumption of unfitness by a
preponderance of the evidence.

3. Unfitness

In addition to finding that Mother failed to rebut the presumption of unfitness
under K.S.A. 2018 Supp. 38-2271(a)(5), the district court also found that Mother was
unfit under K.S.A. 2018 Supp. 38-2669(b)(3), (b)(7), (b)(8), and (b)(9). Those factors are:
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"(3) 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;
. . . .
"(7) failure of reasonable efforts made by appropriate public or private agencies
to rehabilitate the family;
"(8) lack of effort on the part of the parent to adjust the parent's circumstances,
conduct or conditions to meet the needs of the child; and
"(9) whether, as a result of the actions or inactions attributable to the parent and
one or more of the factors listed in subsection (c) apply, the child has been in the custody
of the secretary and placed with neither parent for 15 of the most recent 22 months
beginning 60 days after the date on which a child in the secretary's custody was removed
from the child's home."

On appeal, Mother contends that there is insufficient evidence in the record to
support the termination of her parental rights under K.S.A. 2018 Supp. 38-2269. Mother's
argument in support of her claim is cursory; in fact, she does not address the individual
factors at all. Mother's entire argument on this issue states:

"The District Court terminated Appellant's rights pursuant to K.S.A. 38-2269 finding that
factors contained in subsections (b)(3), (7), (8), and (9) were applicable. The Court also
found, as is required to terminate parental rights, that Appellant's conduct or condition
was unlikely to change in the foreseeable future. As argued above, Appellant asserts that
she has completed some and could complete the remainder of her case plan tasks in the
very near future. As such Appellant asserts the evidence in the record establishes that she
could soon rehabilitate herself as a fit and proper parent to care for her children and that
the District Court improperly terminated her parental rights."

Issues not adequately briefed are deemed waived or abandoned. In re Marriage of
Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018). Additionally, points raised
incidentally in briefs and not argued therein also are deemed abandoned. Russell v. May,
306 Kan. 1058, 1089, 400 P.3d 647 (2017). We find Mother has waived and abandoned
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any argument related to the sufficiency of the evidence in the record to support
termination of her parental rights under K.S.A. 2018 Supp. 38-2269.

Notably, the decision we reach on this issue would be the same even if Mother had
not waived and abandoned this argument. Having considered all the evidence in the light
most favorable to the State, we find clear and convincing evidence that Mother was unfit
under K.S.A. 38-2669(b)(3), (b)(7), (b)(8), and (b)(9), that the condition or conduct
rendering her unfit is unlikely to change in the foreseeable future, and that termination is
in the best interests of the children.

Affirmed.