In re S.B.

1

NOT DESIGNATED FOR PUBLICATION

No. 120,362


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of S.B., C.B., and K.B.,
Minor Children.


MEMORANDUM OPINION

Appeal from Chase District Court; JEFFRY J. LARSON, judge. Opinion filed June 14, 2019.
Reversed and remanded.

Brandy Roy-Bachman, of Law Office of Brandy Roy-Bachman, of Emporia, for appellants.

William R. Halvorsen, county attorney, for appellee State of Kansas, and Seth Meyer, of
Cottonwood Falls, guardian ad litem.

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

PER CURIAM: Mother and Father appeal the termination of their parental rights.
They argue that insufficient evidence supported the trial court's findings and rulings that
they would be unfit for the foreseeable future or that termination of their parental rights
was in the best interests of their three children: C.B., S.B., and K.B. Because the record
establishes that the trial court made both legal and factual errors when terminating the
parents' parental rights, we conclude that insufficient evidence supported the trial court's
factual findings and rulings. As a result, we reverse the termination of Mother's and
Father's parental rights and remand for further proceedings.

On April 29, 2016, police removed C.B., born 2001, S.B., born 2006, and K.B.,
born 2009, from Mother's and Father's custody. Police removed the children after being
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contacted by Mother's and Father's landlord and the children's school. A few days before
the children's removal, police helped evict Mother and Father from their home. During
the eviction, police found the home in unlivable conditions. Around the same time, the
school contacted police that two of the children had truancy issues.

Based on the preceding facts, the State petitioned the trial court to find that C.B.,
S.B., and K.B. were children in need of care (CINC).

The trial court held a temporary custody hearing. The trial court determined an
emergency existed, placing C.B., S.B., and K.B. in State custody because of the
following: the children's prior living conditions, the Mother's and Father's current lack of
housing, and the children's current truancy issues. The trial court appointed counsel to
represent Mother and Father. At the next hearing, Mother and Father stipulated to the
allegations of their unfitness. After Mother's and Father's stipulation, the trial court found
that C.B., S.B., and K.B. were CINC.

The trial court ordered that the State, through St. Francis Community Services
(SFCS), create a case plan task for Mother and Father to complete. Their case plan
included the following tasks: (1) maintaining appropriate and clean housing; (2)
providing proof bills were up to date; (3) submitting to random walkthroughs of their
housing; (4) maintaining appropriate income to meet their children's needs; (5) providing
SFCS with employment pay stubs; (6) submitting to random drug testing; (7) completing
a parenting class; (8) completing a mental health evaluation and following the
evaluation's recommendation; (9) maintaining contact with SFCS; and (10) completing
drug and alcohol evaluations and following the evaluation's recommendations.

On March 14, 2017, the trial court determined that reintegration of C.B., S.B., and
K.B. with Mother and Father was not a viable goal. As a result, the State moved to
terminate Mother's and Father's parental rights.
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The trial court held a bifurcated termination of parental rights hearing. At the first
hearing on August 16, 2017, Mother and Father stipulated that they were "unfit as
defined by law." At the second hearing, which was held on September 17, 2018, the
CASA advocate and the assigned caseworker from SFCS testified on behalf of the State.
Mother and Father testified on their own behalf.

During the hearing, evidence was admitted that Mother and Father had appropriate
and clean housing, had completed their parenting class, had maintained weekly contact
with SFCS to schedule visits, and had completed their drug and alcohol evaluations. The
CASA advocate testified that she knew C.B., S.B., and K.B. wanted to return home to
their parents. And the SFCS caseworker testified that Mother's and Father's visitations
with C.B., S.B., and K.B. were appropriate. Nevertheless, the CASA and SFCS
caseworker both recommended termination of Mother's and Father's parental rights. The
CASA and SFCS caseworker testified about Mother's and Father's individual struggles
with attending therapy, drug use, and employment.

At the end of the termination hearing, the trial court ruled that termination of
Mother's and Father's parental rights was in the best interests of the children. The trial
court's factual findings focused on the parents' inconsistent therapy attendance, drug use,
and ability to maintain employment. The trial court did not make any findings about the
parents being unfit for the foreseeable future at the termination hearing. The next day, the
trial court entered a supplemental order which stated that it did not believe that the
parents' unfitness was likely to change in the foreseeable future on "the same basis [as]
the best interest finding made on the record."

Parents timely appealed.


4

Did the Trial Court Err When It Terminated Mother's and Father's Parental Rights?

Because Mother and Father both stipulated to their present unfitness, we need only
consider the following two issues: (1) We must consider if there is clear and convincing
evidence that Mother's and Father's unfitness is unlikely to change in the foreseeable
future. The parents argue that the trial court's finding that they would be unfit for the
foreseeable future was not supported by clear and convincing evidence. (2) We must
consider if it is in the best interests of the children to terminate Mother's and Father's
parental rights. The parents argue that the trial court's finding that termination of their
parental rights was in the best interests of their children was not supported by clear and
convincing evidence. In making their arguments, the parents also emphasize that they
were accomplishing many of the case plan tasks, which they contend the trial court did
not consider during the termination hearing.

Applicable Law

Parents have a fundamental liberty interest under the Fourteenth Amendment to
the United States Constitution that protects the relationship with their children: "A
parent's right to the control, custody, and care of children is among the most fundamental
rights protected by the United States Constitution." In re X.D., 51 Kan. App. 2d 71, 73,
340 P.3d 1230 (2014). Parents' rights over their children cannot be taken without due
process of law. 51 Kan. App. 2d at 73.

To terminate a parent's parental rights, the moving party has the burden of proof.
K.S.A. 38-2250. The petitioner must prove to the trial court by clear and convincing
evidence that "the parent is unfit by reason of conduct or condition which renders the
parent unable to care properly for a child and the conduct or condition is unlikely to
change in the foreseeable future." K.S.A. 2018 Supp. 38-2269(a).

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In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011), this court
explained:

"When this court reviews a district court's termination of parental rights, we
consider whether, after review of all the evidence, viewed in the light most favorable to
the State, we are convinced that a rational factfinder could have found it highly probable,
i.e. by clear and convincing evidence, that the parent's rights should be terminated.
[Citation omitted.]"

Our Supreme Court has also explained that this court must be "able to discern that the
State's evidence was clear and convincing." In re J.D.C., 284 Kan. 155, 170, 159 P.3d
974 (2007). While engaging in this review, this court does not reweigh conflicting
evidence, reweigh credibility determinations, or redetermine questions of fact. Interests
of K.L.B., 56 Kan. App. 2d 429, 445, 431 P.3d 883 (2018).

Next, if the State establishes that a parent is unfit and unlikely to change in the
foreseeable future, "the court shall consider whether termination of parental rights as
requested in the petition or motion is in the best interests of the child. In making the
determination, the court shall give primary consideration to the physical, mental and
emotional health of the child." K.S.A. 2018 Supp. 38-2269(g)(1). This court reviews the
trial court's best interests finding for an abuse of discretion. A trial court abuses its
discretion if it is based on an error of law, error of fact, or an otherwise unreasonable
decision. In re R.S., 50 Kan. App. 2d 1105, 1116, 336 P.3d 903 (2014).

Procedural Problems

Before addressing the parents' individual arguments, we note a procedural issue
which complicates this case.

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The trial court determined that reintegration was no longer a viable goal on March
14, 2017. Although otherwise not relevant to this appeal, the trial court held a termination
hearing and entered a "default judgment" against the parents, terminating their parental
rights for failure to appear at the hearing on November 27, 2017. For reasons unexplained
in the record on appeal, all parties agreed to set aside the "default judgment" on
December 18, 2017. After setting aside the default judgment, the trial court held multiple
permanency hearings where it ruled that reintegration was still the goal. In fact, the June
25, 2018 permanency hearing journal entry immediately preceding the termination of
parental rights hearing on September 17, 2018, stated that reintegration was still the goal.

We note that there are different procedures in place once a trial court determines
that reintegration is no longer the goal. K.S.A. 2018 Supp. 38-2264(h) provides that at a
permanency hearing, if the court finds that reintegration is no longer the goal, and
adoption or appointment of a permanent custodian is inappropriate, "the county or district
attorney or the county or district attorney's designee shall file a motion to terminate
parental rights or a motion to appoint a permanent custodian within 30 days and the court
shall set a hearing on such motion within 90 days of the filing of such motion."
Moreover, K.S.A. 2018 Supp. 38-2255 states:

"(e) Further determinations regarding a child removed from the home. If custody has
been awarded under subsection (d) to a person other than a parent, a permanency plan
shall be provided or prepared pursuant to K.S.A. 2018 Supp. 38-2264, and amendments
thereto. If a permanency plan is provided at the dispositional hearing, the court may
determine whether reintegration is a viable alternative or, if reintegration is not a viable
alternative, whether the child should be placed for adoption or a permanent custodian
appointed. . . .
. . . .
"(f) Proceedings if reintegration is not a viable alternative. If the court determines that
reintegration is not a viable alternative, proceedings to terminate parental rights and
permit placement of the child for adoption or appointment of a permanent custodian shall
be initiated unless the court finds that compelling reasons have been documented in the
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case plan why adoption or appointment of a permanent custodian would not be in the best
interests of the child. . . ."

The plain language of K.S.A. 33-2264(h) and K.S.A. 38-2555(e) and (f) establish
that before a trial court initiates termination proceedings, the trial court must first
determine that reintegration of the children with the parents is no longer a viable goal.
This provides parents with notice that proceedings to terminate parental rights will soon
take place.

Here, the trial court made a determination that reintegration was no longer a viable
goal at one point. But it later determined that reintegration was a viable goal. Although
under K.S.A. 2018 Supp. 38-2264(g), it seems that the trial court had the authority to do
this:

"When the court finds that reintegration continues to be a viable alternative, the court
shall determine whether and, if applicable, when the child will be returned to the parent.
The court may rescind any of its prior dispositional orders and enter any dispositional
order authorized by this code or may order that a new plan for the reintegration be
prepared and submitted to the court. . . ." (Emphasis added.)

Yet, by determining that reintegration was a viable goal up until the date of the
termination hearing, the trial court failed to follow the plain language of the termination
of parental rights statutes.

As a result, the trial court's procedures raises questions whether the parents
received adequate notice that their parental rights were going to be terminated. In
essence, the trial court backpedaled on its original order that reintegration was no longer
a viable goal. This would signal to the parents that they had made improvements. It
would also signal to the parents that their rights as parents were not at risk of being
terminated. Although the September 17, 2018 hearing was a termination of parental rights
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hearing, the trial court referred to it as a "permanency hearing." The purpose of a
permanency hearing under K.S.A. 2018 Supp. 38-2264 is entirely distinct from a
termination of parental rights hearing under K.S.A. 2018 Supp. 38-2269. Additionally,
because the parents' rights over their children is a constitutionally protected interest, the
trial court's failure to follow the termination of parental rights procedural rules is
troubling.

Therapy Attendance

Both Mother and Father were to attend therapy as a case plan task. Below, the trial
court found that Mother and Father were both unlikely to change in the foreseeable future
based on their therapy attendance. The trial court also found that it was in the best
interests of the children to terminate both Mother's and Father's parental rights based on
their therapy attendance.

When the trial court provided its reasons why termination was in the best interests
of the children, the trial court made the following statements about therapy:

". . . While there is no case law that says there has to be 100 percent compliance, if I was
a parent faced with losing the parental rights of my two children, I would make sure that I
complied 100 percent with no excuses and I would be contacting [SFCS] on a daily basis
asking them, 'Is there anything I can do today to get my kids back?'
"The evidence that's been presented to the Court today leads me to believe that
the parents have been somewhat blase about their responsibilities under the reintegration
plan. It seems as though whenever they're faced with a question of something they didn't
get done, there's some excuse for it. [Mother] indicates that she's missed therapy
appointments because she's been sick. My order on January did not say, You don't have
to go if you're sick. She says the doctor told her she didn't need to go because she'd make
other people sick, at least for one of those. There's another cancellation back in June.
[Defense counsel has] been trying to get the Court to focus on what's happened since the
last hearing and, frankly, I don't think that's really what's appropriate. The Court has to
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look at the big picture to see what the parents have done since they stipulated they were
unfit back in August.
"The parents, at best, have been inconsistent with what's required of them under
the therapy at the Crosswinds. I mentioned [Mother's] missed two sessions since the last
hearing and I know prior to that time there were many other therapy appointments that
were missed, based upon my reading of previous court reports. [Father] also had a
difficult time making it to his therapy appointments with Crosswinds. He now says that
he's been released, however, we have no documentation to that effect and the last time he
was seen at Crosswinds was, I believe, back in June. I'm sorry, it was July 3rd was the
last therapy appointment he had since the last court hearing, . . . according to the court
report prepared by [the caseworker].
. . . .
"When I was reviewing the reports, I think [the caseworker] summed up her
report, the addendum, quite effectively. 'St. Francis has additional concerns about the
lack of commitment to therapy appointments since the last court hearing. Cancelling and
no-showing to therapy appointments regularly not only demonstrates a failure to
complete this case plan task and obtain the necessary therapy services to be safe and
successful parents, but also demonstrates further concerns about the parents' ability to
maintain appropriate schedules and structures for the three children if reintegrated back in
the home, despite the parents having ample time to prepare for the process and
demonstrate their capabilities.'"

When the trial court provided its reasons why the parents' unfitness was unlikely
to change in the foreseeable future, the trial court made the following statements about
therapy: "The natural mother exhibited inconsistent attendance at Crosswinds for mental
health therapy as did the father until such time as the father states he was release[d] from
further treatment father offered no corroborating evidence and St. Francis was unable to
confirm the father's assertion."

Thus, the trial court took issue with both Mother's and Father's attendance at
therapy, believing that this factor constituted clear and convincing evidence that the
parents' unfitness would not change in the foreseeable future and that termination was in
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the best interests of the children. Nevertheless, the parents argue that the trial court
ignored the unrebutted testimony at the termination hearing concerning their positive
therapy attendance.

A review of the record on appeal establishes that after Mother stipulated to her
unfitness, Mother failed to appear at two of her first three therapy appointments. She then
went to seven straight appointments between February 13, 2018, and May 25, 2018. She
attended her appointments on July 6, 2018, and August 24, 2018, but she failed to attend
her appointments on July 23, 2018, August 6, 2018, and September 7, 2018. Mother
asserted that she failed to attend these final appointments because of a miscommunication
and illness.

The caseworker decided not to contact Crosswinds for "an official update"
concerning Mother's "lack of appointments" before the termination hearing. This meant
that the caseworker had no information concerning whether Mother was telling the truth
about the reasons she missed therapy. This also meant the court had no update on
Mother's therapy progress.

Significantly, the only official update on Mother before the court was from March
2018. Crosswinds' analysis of Mother was positive: "[Mother] is focused on gaining back
custody of her daughters and is worried about her daughters and is worried about her
chances as it comes closer to her court date. [Mother] is forthcoming about her issues and
is compliant without all suggestions made by myself, intern counselor." "[Mother] is
capable of maintaining a steady pace as observed in therapy session when processing
different issues and emotions. [Mother] stays on topic and is highly responsive to
interventions used in individual therapy sessions."

As a result, after she stipulated to being unfit, Mother missed two therapy sessions
early on, and later missed three therapy sessions shortly before the termination of parental
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rights hearing. But she also attended 10 therapy sessions during the time between. In
other words, she attended two-thirds of her therapy sessions. Mother also provided
reasons why she did not attend the therapy sessions before the termination of parental
rights hearing. Yet, the State did not present any evidence to confirm if Mother's
explanations for missing those sessions were true because the caseworker failed to follow
up with Crosswinds for an official update on Mother's therapy sessions. If we assume for
argument sake that Mother's explanations why she missed the final therapy appointments
were accurate, then but for illness, she would have attended her final nine therapy
appointments.

Here, the trial court took issue with Mother's failure to attend therapy. But the trial
court did not actually compare the number of appointments that Mother had attended to
those Mother had failed to attend. The trial court did not take note of Mother's progress
where she attended seven therapy sessions in a row or her progress in therapy. Instead,
the trial court indicated that the parents needed to attend 100 percent of their assigned
therapy sessions to prevent termination. But our standard is whether the parent's unfitness
is likely to change in the foreseeable future.

In short, when a parent attends nine therapy appointments in a row but for illness,
the evidence does not support that it is highly probable that a parent's unfitness is unlikely
to change in the foreseeable future. Indeed, even when that parent attends only two-thirds
of his or her therapy sessions, the evidence does not support that parent's unfitness was
highly unlikely to change in the foreseeable future when the only documentation from the
parent's counseling is that he or she is succeeding in that therapy. When this court cannot
discern from the State's evidence whether Mother was likely to change in the foreseeable
future, then clear and convincing evidence does not exist. See J.D.C., 284 Kan. at 170.
Here, because Mother was generally complying with her therapy case plan task, clear and
convincing evidence did not support the trial court's finding that Mother's missed therapy
appointments supported the termination of her parental rights.
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As for Father, Father takes issue with the trial court finding that his unfitness was
unlikely to change for the foreseeable future because the evidence showed that he
attended nearly all of his therapy sessions. Indeed, he argues that the evidence showed
that he was released from his task of therapy in July 2018.

To begin with, the trial court found that Father missed therapy sessions. A review
of the record shows that Father attended therapy on the following dates: February 2,
2018, February 12, 2018, March 8, 2018, April 5, 2018, April 19, 2018, and July 3, 2018.
On June 1, 2018, Father's therapy was cancelled. On June 12, 2018, Father failed to
appear at his therapy. It is unclear why Father's therapy was cancelled, that is, if he
cancelled it or if the counselor cancelled it. It is also unclear why Father failed to appear
for the June therapy appointments. Regardless, after his July appointment, Father
reported that Crosswinds released him from therapy.

Assuming that Father was to blame for missing his two June appointments, Father
attended six therapy sessions and missed two therapy sessions—a three-fourths average.
As with Mother, the caseworker did not request an official update on Father from
Crosswinds before the termination hearing. Therefore, the final official update on Father
from Crosswinds was from March 2018. In that update, Father's counselor reported that
Father "displayed improvement with completing his tasks assigned by [SFCS]."
Moreover, Father's counselor explained that Father "could benefit from treatment for
mental health and substance use, but these services [were] not offered by Crosswinds,
and therefore not part of the intake's treatment recommendations."

This final point is important because Father's counselor recognized that the
services which could benefit Father at Crosswinds were limited. Father's counselor's
statement gives credibility to Father's testimony that he was released from therapy in
July. Even so, the trial court found that Father's failure to provide evidence corroborating
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his release meant Father's assertion that his counselor released him from therapy was
implausible.

The trial court's findings about Father's therapy attendance are problematic for two
reasons. First, when making its findings, the trial court stated, "[Father] also had a
difficult time making it to his therapy appointments with Crosswinds." But the trial court
did not actually count how many therapy sessions Father attended and missed. Based on
the record on appeal, Father attended three-fourths of his therapy sessions over a six-
month period. This means that Father was usually complying with this case plan task. As
a result, Father's therapy attendance did not support that he was incapable of changing his
conduct or condition in the foreseeable future.

Second, as argued by Father in his brief, Father signed releases for SFCS to access
his counseling records. Thus, the SFCS caseworker merely needed to contact Crosswinds
to determine if Father had been released from therapy. But she did not. More important,
the State had the burden of proof to terminate Father's parental rights. Because the State
had the burden of proof, when Father stated he had been released from therapy, the State
needed to provide clear and convincing evidence establishing that Father had not been
released from therapy. Thus, the State could not rely on caseworker's doubts
(speculation) that Father actually had been released from therapy. Additionally, the trial
court wrongly shifted the burden of proof onto Father by finding Father's contention that
he had been released from therapy was not credible because he failed to corroborate it
with evidence from Crosswinds. Because the burden of proof was on the State, not
Father, the trial court made an error of law when it used Father's failure to corroborate his
release from therapy against him.


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Drug Use

Both parents had case plan tasks requiring them to stay drug free. They also had to
submit to drug testing. Mother and Father had to complete a drug and alcohol assessment
if they had a diluted test, had a positive test, or had refused a test. They also had to
complete and follow the recommendations of their drug and alcohol evaluation.

When the trial court made its best interests findings, the trial court made the
following statements about the parents' drug use:

"THE COURT: [Mother] testified that, as I recall, there was some follicle testing
done and she tested positive for methamphetamine. She denies ever using
methamphetamine and says, It was the result of some other medication. The Court finds
her testimony not credible with regard to that.
"[DEFENSE COUNSEL:] Actually, Your Honor, the hair follicle test was clean;
it was the mouth swab.
"THE COURT: I stand corrected. Her excuse was still the same with regard to
the mouth swab and I'm not buying that. It was a difficult process to even get the parents
to submit to the follicle testing. It was scheduled. They missed the first appointment.
They have no explanation as to why they missed that appointment, but again, that goes
back to, if your kids are on the line, you don't miss appointments, especially when there's
a Court order in place that you don't miss appointments."

When the trial court made its unfit for the foreseeable future finding, the trial court
stated the following: "Various drug testing modalities were used and results showed drug
use by the parents despite their denial of the same. The court specifically finds that the
excuses given for positive tests offered by each parent is not credible." Thus, the trial
court found that the parents would be unfit for the foreseeable future, and that termination
was in the children's best interests based on their failed drug tests.

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In their brief, the parents stress that the State never established that the reasons
why they failed their drug tests were false. Accordingly, they argue that the trial court's
finding that their unfitness was unlikely to change in the foreseeable future was not
supported by clear and convincing evidence. The parents' argument is partially correct.

Mother's argument focuses on how her hair follicle drug test results were negative.
She asserts that this evidence confirmed that she did not use methamphetamine.

Following her stipulation that she was unfit, Mother provided positive drug test
results twice. On May 21, 2018, her mouth swab tested positive for THC. On July 7,
2018, Mother failed to appear for her hair follicle drug test. On July 11, 2018, her mouth
swab tested positive for methamphetamine. After testing positive for methamphetamine,
Mother stated that she was taking a medication that may have caused a false positive. The
caseworker confirmed that this medication could cause a false positive. As a result, the
caseworker set up a hair follicle drug test. In her reports to the court, the caseworker
described the hair follicle test as a confirmatory test that could detect whether a person
consumed drugs within the last 90 days. The confirmatory hair follicle test showed that
Mother had not consumed methamphetamine. Moreover, Mother showed up and passed
all of her other drug tests.

Because Mother's hair follicle test confirmed that she had not taken
methamphetamine, the trial court erred by finding that Mother used methamphetamine
based on its belief that her "excuse" was not credible. Although we generally defer to the
trial court's credibility determinations, we cannot do so if the trial court made a credibility
determination that is contrary to the evidence before it or if the trial court made the
credibility determination while ignoring certain evidence. Simply put, the evidence
before the trial court was that a scientific test confirmed Mother's assertion that she was
not consuming methamphetamine. The trial court ignored this scientific test in making its
finding.
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Father's arguments involve (1) whether he lied to a substance abuse evaluator
during an examination and (2) whether he lied while discussing his reasons for using
THC. Father asserts that he did not lie to the substance abuse evaluator about his drug
use. Yet, we need not consider this argument because the trial court did not rely on the
State's assertion that Father lied to the substance abuse evaluator when finding Father
unfit for the foreseeable future or terminating Father's parental rights. Instead, the trial
court's findings focused entirely on whether Father lied about his drug use.

Concerning whether Father lied while discussing his reasons for using THC, after
his unfitness stipulation, Father's mouth swabs were negative for all drugs on March 21,
2018, May 17, 2018, June 13, 2018, and June 29, 2018. His mouth swabs were positive
for THC on January 29, 2018, May 16, 2018, and July 11, 2018. He failed to appear for a
hair follicle drug test on July 7, 2018. And his hair follicle drug test was positive for THC
on August 14, 2018. But his hair follicle drug test was negative on August 28, 2018.
Thus, Father submitted four drug tests that were positive for THC.

Yet, we note that Father's August 14, 2018 hair follicle drug test could have
detected any THC he consumed in the prior 90 days, that is, no earlier than May 16,
2018. Because Father's August 28, 2018 hair follicle test was negative, it is highly likely
that Father's August 14, 2018 hair follicle test was detecting THC already detected by one
of Father's mouth swab tests.

As for why he used THC, Father admitted that he used THC before the dates he
tested positive. But he alleged that he had been using a friend's vape and was unaware
that the friend put THC oil in the vape. He asserted that the last time he knowingly used
marijuana was in November 2017. Although Father takes issue with the trial court's
determination that his explanation for using THC was not credible, unlike Mother, Father
does not assert that the trial court ignored some evidence establishing that he had not
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used THC. Because this court does not reweigh the trial court's credibility
determinations, the trial court did not err by finding Father's reasons for consuming THC
not credible. Interests of K.L.B., 56 Kan. App. 2d at 445.

Employment

Both Mother and Father were required to maintain appropriate income to meet
their children's needs as a case plan task.

Below, the trial court did not make any explicit findings about Mother's
employment. Indeed, Mother, who was a certified nurse's assistant, had maintained
employment at the same place for six months before the termination of parental rights
hearing. She also consistently provided SFCS with pay stubs. But the trial court did make
findings about Father's employment:

"The next issue I've been concerned about is [Father's] employment. This is
probably a case that I've never seen somebody move jobs so frequently in such a short
period of time. The concern about that is the instability. I think the two parents have
managed to maintain sufficient income that they can take care of the kids, but I'm not
sure they have the discipline to do it."

As a result, the trial court's employment findings related to the parents' stability and
discipline to care for their children.

The parents argue that the trial court's findings were not merited based on Father's
employment record. Father points to his testimony about "chang[ing] employment for
better pay, better hours, and better flexibility to complete case plan tasks in order to get
the children reintegrated back into his home." Thus, Father argues that his job changes
should not be seen as instability when he was striving to make improvements for his
children.
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At the termination hearing, Father testified that he recently went through a string
of several jobs. Father had been employed at Hopkins between February 23, 2018, and
August 10, 2018. He testified that Hopkins terminated him because of attendance; he
asserted that it was a miscommunication about whether he was allowed a sick day. After
his termination from Hopkins, Father notified SFCS that he would start work at
Simmons, but he instead obtained employment at American Eagle. Because American
Eagle could not offer him full-time employment, Father soon started working at
Hurricane Services full-time. Father testified that working at Hurricane Services was less
than ideal because his hours interfered with taking drug tests and because of the
inconvenient job site location. According to Father, he quit his job with Hurricane
Services after obtaining employment with Fanestil's, which had better hours and pay.

The parents' case plan task was to maintain "appropriate income to meet the needs
of the children." The trial court admitted that the parents met this case plan task as it
explicitly stated that they had "managed to maintain sufficient income that they [could]
take care of the kids." But the trial court believed that Father's frequent job changes
between his August 10, 2018 firing from Hopkins and the September 17, 2018
termination hearing established that the parents were unstable and undisciplined. Those
findings, however, were not merited from Father's employment history.

To begin with, the trial court's unstable and undisciplined findings as it pertained
to the parents involved both Mother and Father. Nevertheless, the only evidence
supporting the trial court's findings involved Father's unstable employment history.
Because Mother had the same job for six months, the trial court erred by attributing
Father's changes in employment to Mother. Simply put, Mother's employment history
was stable.

19

Next, Father testified that Hopkins fired him. Otherwise, the only evidence in the
record was that Father quit each job he had once he obtained a better job—a better job
that made it easier for him to complete his case plan tasks. Those case plan tasks included
maintaining appropriate income and submitting to random drug testing. In making its
findings, the trial court ignored that Father's job changes had all occurred during the
month following his termination from Hopkins. The trial court also ignored (1) that
Father was employed at Hopkins for several months before his termination, (2) that
Father actively sought reemployment upon his termination, and (3) that upon
reemployment, Father actively sought better positions that made it easier to comply with
his case plan tasks.

In brief, what the trial court called instability, was Father's attempt to secure the
best employment he could to ensure reintegration with his children. This court's standard
of review requires the review of all the evidence, not just some of the evidence. Even
when considered in the light most favorable to the State, because consideration of all the
evidence supports that Father was actively seeking reemployment and taking better
positions, the trial court's finding that Father's job changes created instability and
inconsistency that would somehow be detrimental to the children is not supported by the
record on appeal.

Summary of Evidence

Thus, to summarize, the trial court found that the parents' unfitness was unlikely to
change in the foreseeable future and that termination of the parents' parental rights over
C.B., S.B., and K.B. were in their best interests because of the parents' inconsistent
therapy attendance, ongoing drug use, and unstable employment record. Nevertheless, to
affirm the trial court's findings, this court must be "able to discern that the State's
evidence was clear and convincing" after reviewing all the evidence. J.D.C., 284 Kan. at
20

170. Here, the evidence the trial court relied on to terminate Mother's and Father's
parental rights was not clear and convincing.

The evidence did not establish that Mother's or Father's therapy attendance was so
inconsistent that there was a high probability they would be unfit for the foreseeable
future or that termination of their parental rights was in the best interests of their children.
Nor did Mother's and Father's employment records establish that they were unstable,
requiring termination of their parental rights. Instead, the only clear and convincing
evidence before the trial court was that Mother had tested positive for THC once and that
Father had tested positive for THC four times after their unfitness stipulation.

But drug use alone is not necessarily a reason to terminate parental rights. See
K.S.A. 38-2269(b)(3), (f). In the case of In re L.C.W., 42 Kan. App. 2d 293, 301, 211
P.3d 829 (2009), the trial court reversed the magistrate judge's finding that parents were
unfit based on parents' methamphetamine use:

"'Just because parents use drugs, or have been convicted of using drugs, or drink
too much alcohol, does not automatically mean the child is likely to sustain harm, or the
home is contrary to the child's welfare. If that were the test, then thousands of children
would be removed from the home weekly.
"'What the State failed to prove was some connection between the parents'
alleged (not proven) drug use and the child's welfare. The only evidence was that the
child is healthy, was not left alone, and was not abused physically, mentally, or
emotionally.'"

This court affirmed the trial court because "L.C.W.'s parents may not be model parents,
but we agree with the district court in focusing on the well-being of the child." 42 Kan.
App. 2d at 302-03.

21

In In re A.M., No. 106,890, 2012 WL 2925660, at *5-6 (Kan. App. 2012)
(unpublished opinion), this court relied on the L.C.W. case to reverse the trial court's
finding that father's children were CINC based on his positive drug test for
methamphetamine. This court explained its reason for reversing the trial court as follows:

"[T]he only factor discussed by the trial court was Father's positive drug test for
methamphetamine. In many appellate records we have seen the consequences of drug
users addicted to methamphetamine. But in the case at bar, as was the case in L.C.W., a
CINC case is not about the drug user, it is focused entirely on the care and well-being of
the children. This is where the trial court lost its focus.
"There was no evidence presented in this case concerning any inadequate care
and well-being of all the children while they were in the Father's custody." 2012 WL
2925660, at *6.

The trial court cannot terminate a parent's right unless there is "clear and
convincing evidence that the parent is unfit by reason of conduct or condition which
renders the parent unable to care properly for a child and the conduct or condition is
unlikely to change in the foreseeable future." (Emphasis added.) K.S.A. 2018 Supp. 38-
2269(a). When considering the best interests of the child, the trial court "shall give
primary consideration to the physical, mental and emotional health of the child." K.S.A.
2018 Supp. 38-2269(g)(1).

Here, the trial court made no findings about Mother's positive THC drug test.
Moreover, although the trial court asserted that it considered the children's physical,
mental, and emotional health needs at the conclusion of its findings, the trial court did not
explain how either Mother's or Father's THC use would negatively affect the children's
physical, mental and emotional health needs. In addition, the trial court never explained
how either Mother's or Father's THC use would hamper their ability to properly care for
children in the foreseeable future. Instead, the trial court took issue with the fact the
parents failed drug tests.
22


A parent may be unfit for failing to comply with a reasonable reintegration plan.
See K.S.A. 2018 Supp. 38-2269(c)(3). Nevertheless, under all the facts of this case,
where the only findings by the trial court supporting termination of both Mother's and
Father's parental rights is their positive THC drug test results, clear and convincing
evidence does not support the termination of Mother's parental rights or Father's parental
rights over the children. A rational fact-finder could not find it highly probable that
Mother's THC use and Father's THC use alone established that they would be unfit in a
manner that would render them unable to care for children for the foreseeable future or
that termination of their parental rights was in the best interests of the children.

For the preceding reasons, we reverse the termination of both Mother's and
Father's parental rights and remand for further proceedings consistent with this opinion.
Because we are reversing the termination of Mother's and Father's parental rights, we
need not consider the parents' second argument about their counsel providing ineffective
assistance of counsel.

Reversed and remanded.