In re T.M.

1
NOT DESIGNATED FOR PUBLICATION

No. 121,248

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of T.M. and A.M.,
Minor Children.


MEMORANDUM OPINION

Appeal from Harvey District Court; MARILYN M. WILDER, judge. Opinion filed November 27,
2019. Affirmed.

Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellant natural mother.

Kaitlin M. Dixon, assistant county attorney, for appellee.

Before GARDNER, P.J., BUSER, J., and LAHEY, S.J.

PER CURIAM: C.M. (Mother) appeals the district court's termination of her
parental rights to her children, A.M. and T.M., claiming the evidence does not support the
district court's finding that she was unfit for the foreseeable future. The district court also
terminated the parental rights of both children's fathers, neither of whom appeared at trial
and neither is participating in this appeal. Because the record supports the district court's
ruling, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case began September 1, 2017, based on reports received by the Kansas
Department for Children and Families (DCF) that Mother and the children were living in
a tent by a lake and were potentially homeless. A separate report suggested the family
2
had been evicted from their home and the landlord had found drug paraphernalia, which
spoke to concerns that Mother was using drugs. The district court held a temporary
custody hearing and ordered the children into DCF custody.

Less than a month later, the district court adjudicated the children as in need of
care and ordered them to remain in DCF custody with an out-of-home placement. At the
dispositional hearing three months later, the district court adopted the permanency plan
created by Saint Francis Community Services (SFCS) with the goal of reintegrating the
children into the family home. The case plan required Mother to complete a parenting
course; submit to random mouth swabs, complete a substance abuse evaluation in the
event of a positive test, and sign a release of information form for SFCS to obtain
documentation of completion; obtain and maintain appropriate housing; obtain a mental
health evaluation and follow the recommendations; look for employment and keep SFCS
updated on her disability benefit status; not have unsupervised contact with the children
until authorized by the court; and interact appropriately with the children. Three months
after the dispositional hearing, the district court changed the case goal from reintegration
to a dual goal of reintegration/adoption.

Over a year after the children were adjudicated children in need of care, a
community review board hearing took place; the board recommended termination of
Mother's parental rights. The board listed Mother's continued drug use, unemployment,
and lack of housing as barriers to permanency. Mother objected to the recommendation.
The district court determined that reintegration was no longer a viable goal, and on
January 17, 2019, the State moved to terminate Mother's parental rights.

At the termination hearing, the State presented evidence of Mother's continued use
of methamphetamine, her homelessness, her failure to obtain employment or disability
benefits, and her failure to complete reintegration tasks. At the end of the hearing, the
district court terminated Mother's parental rights based on four statutory factors:
3
 K.S.A. 2018 Supp. 38-2269(b)(3)—the use of intoxicating liquors or
dangerous drugs of such duration or nature as to render the parent unable to
care for the ongoing physical, mental, or emotional needs of the child;

 K.S.A. 2018 Supp. 38-2269(b)(7)—failure of reasonable efforts made by
appropriate public or private agencies to rehabilitate the family;

 K.S.A. 2018 Supp. 38-2269(b)(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

 K.S.A. 2018 Supp. 38-2269(c)(3)—failure to carry out a reasonable plan
approved by the court directed toward integrating the child into a parental
home.

Mother timely appeals.

DID THE DISTRICT COURT ERR IN TERMINATING MOTHER'S 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, 758-59, 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 law considers this right
to be fundamental. In re R.S., 50 Kan. App. 2d 1105, 1115, 336 P.3d 903 (2014). The
legal bonds between parent and child may therefore be extinguished only upon clear and
convincing evidence of parental unfitness. K.S.A. 2018 Supp. 38-2269(a); In re R.S., 50
Kan. App. 2d at 1115.

4
As provided in K.S.A. 2018 Supp. 38-2269(a), the State must prove 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."
The statute contains a nonexclusive list of nine factors that singularly or in combination
may constitute unfitness. K.S.A. 2018 Supp. 38-2269(b), (f). The statute lists four other
factors to be considered when, as here, the parent no longer has physical custody of a
child. K.S.A. 2018 Supp. 38-2269(c).

In reviewing the sufficiency of the evidence supporting "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." In re K.W., 45 Kan. App. 2d 353, 354, 246 P.3d
1021 (2011). In making this determination, "the appellate court does not weigh
conflicting evidence, pass on the credibility of witnesses, or redetermine questions of
fact." In re B.D.-Y., 286 Kan. at 705.

Mother contends that the evidence does not support the district court's finding that
she was unfit to parent the children and primarily argues that evidence does not support
the finding that she is unfit for the foreseeable future. Although she acknowledges that
she failed to complete her case plan tasks initially, Mother asserts that she ultimately
made "significant progress towards the most important tasks of sobriety and housing."

We begin by reviewing the evidence in the record and each of the statutory factors
relied upon by the trial court in reaching its decision.

5
A. There is clear and convincing evidence to support the district court's finding that
Mother's use of drugs was such as to render her unable to care for the ongoing
needs of her children.

A district court may terminate a parent's rights to his or her child if there is clear
and convincing evidence of the "use of intoxicating liquors or narcotic or dangerous
drugs of such duration or nature as to render the parent unable to care for the ongoing
physical, mental or emotional needs of the child." K.S.A. 2018 Supp. 38-2269(b)(3).
Here, there is evidence to support this finding.

Four months after DCF took custody of her children, a SFCS caseworker received
a concerning text from Mother that she believed was drug-related and was accidently sent
to her. The text stated: "That's good shit but when I measured it in the package I got 2.5
oh and I'm out already." The next day, Mother texted the caseworker:

"Hi, it's [Mother] and this is my new number. After I sent you a text about running late
yesterday I stopped at Casey's to use the restroom. I must have left my phone there. I
went back and it was gone so I had to get a new phone. So if you should receive any texts
after 3 PM yesterday not sure why you would but you never know, it was not from me."

In her testimony, Mother admitted she used methamphetamine before and
throughout the case until she sought treatment at the Women's Recovery Center (WRC).
She gave varying accounts of the length of treatment but claimed she spent at least three
months at the WRC and completed the residential program. Mother testified that she
entered treatment in July of 2018. Even so, Mother failed to provide documentation from
the WRC to verify the dates, length, or completion of treatment. Mother said she
contacted the WRC and requested her completion paperwork but testified that she never
received it.

6
SFCS caseworkers testified that Mother attended this treatment but discharged
herself early because she did not want to miss her ride. And despite Mother's alleged
three months in treatment, Mother tested positive for methamphetamine the weekend
after she discharged herself. Mother claimed she has been sober since September 2018
but admitted she relapsed after leaving treatment. She repeatedly refused to submit to
testing—even during the week of the termination hearing. Mother offered a variety of
excuses for refusing the drug testing. In the weeks preceding the termination hearing,
when requested to take a test, Mother told the SFCS worker she did not have time
because she had a job interview. Although she told the SFCS worker that she would come
back and take the test after the interview, Mother did not return. Mother refused to submit
to testing on the Tuesday before the Friday trial of this case. Her explanation for the
refusal was that her visit with the children was late, she was angry about it, and she did
not have time for the test. Although the testing would take only a couple of minutes,
Mother testified that a couple of minutes was a significant delay when it involved her
schedule. She testified she went back the next day and offered to submit to testing but
SFCS refused so they would have more evidence to make Mother "look bad."

Mother admitted she was facing a criminal drug charge arising from a June 2018
incident. She was arrested in October 2018 for failing to appear in court in that case. A
report from SFCS clarified that in October 2018, Mother was charged with possession of
opiates/opium/narcotic drug and certain stimulants, unlawful possession of a controlled
substance, and use/possession with intent to use drug paraphernalia into human body.

Mother testified that she began the process of attending outpatient drug treatment
in November 2018 and provided a handwritten letter from her counselor in evidence. Her
outpatient treatment started three days before the termination hearing. There is no definite
time frame for completion of that treatment, according to Mother; the treatment will be as
long "as it needs to be" until her counselor determines she is "okay."

7
As recognized by the district court at the termination hearing, Mother has "no
track record of stability regarding drug use." Mother presented inconsistent testimony
about her treatment at the WRC and failed to provide documentation of this treatment. In
her 2017 drug and alcohol evaluation, Mother told the evaluator that she had been
addicted to crack cocaine in 2008 but did not disclose in any way her ongoing
methamphetamine use. Mother refused at least a dozen drug tests throughout the case,
and she admitted she refused many times because she was using drugs. Mother claimed
to be sober since September 2018 but according to a SFCS caseworker, Mother had
refused to submit to any SFCS drug tests since December 2018, including three tests the
week of the termination hearing.

Mother gave multiple excuses for why she would not submit to the tests. SFCS
caseworkers testified that Mother refused because she was ill, she refused because she
was being evicted from her home and needed to get her things, she refused because her
children were present, she refused because she got a phone call and needed to leave
immediately, and she refused because she had a job interview. Mother testified that she
refused tests at the beginning of the case because she "was not okay" and "probably still
in active addiction." Mother also testified that in the past she refused tests because she
was using methamphetamine. When asked why she refused tests recently, Mother
testified that she had not eaten yet and wanted to do so before completing the mouth
swab. Mother also testified that she refused the week of the termination hearing because
she was frustrated with SFCS. Mother testified, "I was angry with St. Francis, which if
anybody has to deal with them they would understand the anger and frustration comes
along."

Mother did, however, provide seven clean drug test results at the termination
hearing. The district court noted that these results were obtained by Mother, rather than
by SFCS, and the most recent clean test was obtained in January 2019. The district court
noted that it did not "have any proof from the last two months whether [Mother was]
8
clean or not." In its ruling terminating Mother's parental rights, the district court noted
Mother's inconsistent testimony regarding the length and timing of treatment, the lack of
verification it was actually completed, her lack of candor about drug use and her 2018
arrest, and her refusal to submit to SFCS drug testing throughout the case—including the
week of the termination trial.

Viewing these facts, as we must, in the light most favorable to the State, and in
giving due deference to the trial court's evaluation of Mother's credibility, we find the
State presented clear and convincing evidence that Mother's use of methamphetamine
rendered her unable to care for the ongoing physical, mental, or emotional needs of her
children.

B. There was clear and convincing evidence to support the district court's finding
that reasonable efforts made to rehabilitate the family failed.

A district court may terminate a parent's rights to his or her child if there is clear
and convincing evidence that the reasonable efforts made by public or private agencies to
rehabilitate the family have failed. K.S.A. 2018 Supp. 38-2269(b)(7). Here, the evidence
supports this finding because Mother consistently refused to work with the resources
offered to her.

Along with working with Mother regarding her drug use, SFCS gave Mother
resources to obtain suitable housing. According to a SFCS caseworker, Mother did not
use these resources to obtain housing for a year after her children were placed in DCF
custody. Mother obtained housing in November 2018 that SFCS deemed appropriate after
completing a walkthrough. But, prior to November 2018, Mother had an unstable housing
situation. At the termination hearing, Mother had difficulty explaining where she had
lived before. Mother testified that she had been living in tents with her children at East
Lake when the children were placed in DCF custody. Then, Mother lived in a motel for
9
around a month before she moved into her friend's camper on the friend's property.
Mother lived in the camper for around three months until she was evicted. After leaving
the camper, Mother bounced around from January 2018 until she went to the WRC in
July 2018. Following her time at WRC, she was again homeless until she located her
present housing in November 2018.

Mother also delayed or ignored court orders. Mother completed a drug and alcohol
evaluation at the beginning of the case but conceded that she lied about her
methamphetamine use to the counselor performing the evaluation. The district court
ordered Mother to have no contact with any of her children throughout the case, but
Mother ignored this order consistently, primarily with an older daughter A.R., who is not
part of the case because she turned 18 before the termination hearing. A SFCS
caseworker testified that Mother tried to pick up A.M. and T.M. from school without
SFCS permission. Mother was arrested at the school for driving on a suspended license.
Mother testified that she thought the no-contact order only pertained to her oldest child,
A.R. The district court did not believe Mother's testimony that she was unaware of the
no-contact order. Although A.R. is no longer a part of this proceeding, Mother's actions
with regard to A.R. throughout the case were concerning to the district court. A SFCS
caseworker testified that A.R.'s father, with whom A.R. was placed, believed that Mother
and A.R. had been communicating during the case. A SFCS caseworker also testified that
Mother would have inappropriate conversations with A.R., including Mother telling A.R.
that she "got laid for the first time in a month." The SFCS case plan directed Mother not
to engage in inappropriate conversations with the children.

The evidence supports the district court's finding that despite the assistance offered
by SFCS and others, these reasonable efforts failed to reintegrate the family. Mother
refused to work with SFCS, failed to find suitable housing for over a year, and ignored
court orders to have no contact with her children.

10
C. There is clear and convincing evidence to support the district court's finding that
Mother failed to adjust her circumstances, conduct, or conditions to meet the
needs of her children.

A district court may terminate a parent's rights to his or her child if there is clear
and convincing evidence that the parent has failed to adjust his or her circumstances,
conduct, or conditions to meet the needs of the children. K.S.A. 2018 Supp. 38-
2269(b)(8). Mother's last-minute efforts to adjust to her circumstances were unpersuasive
to the district court, and clear and convincing evidence supports this conclusion.

As mentioned, Mother testified that she sought treatment at the WCR, but, despite
this treatment, Mother relapsed the weekend she discharged herself from treatment.
Mother testified that she started attending outpatient treatment the week of the
termination hearing, but by the time of the termination hearing this case had been
pending almost 18 months. During this period Mother was also arrested on drug-related
charges. These events show that Mother failed to adjust her circumstances, conduct, and
conditions necessary to overcome her addiction and put the needs of her family first.

At the time of her termination hearing, Mother also had not obtained employment.
Mother testified that she has been trying to receive disability benefits for over nine years
after she developed a medical condition, ankylosing spondylitis. Mother testified that her
disability attorney "didn't want me looking for work because of the chance of ruining
fighting for disability." But Mother testified that after losing her most-recent disability
claim that she had "to let that go" and got a job at a convenience store because her
children are more important. Mother quit the job after two days because it required her to
be on her feet for six hours and she testified she was not physically able to do that.
Mother failed to provide SFCS with verification of that job. At the time of the
termination hearing, Mother claimed that she had an upcoming job interview but was
presently unemployed.
11
Mother conceded that she cannot financially provide for herself and her children
without the help of others. Mother testified that her rent, water, and trash are free. She
receives food stamps to pay for food, and her church helps pay for her other bills, such as
electricity, heat, car payment, gas, and clothing. Mother said she was unsure how long the
generosity of her church would last but she is "sure they would be there for us as long as
they need to be." She has been involved with the church since November 2018. Mother
testified that she plans on financially supporting the family by getting a job.

Along with Mother's issues with addiction and financial support, there was also
testimony about Mother's interactions with SFCS. A SFCS caseworker testified that at
first Mother would interact appropriately with SFCS workers, but Mother became more
aggressive recently. The caseworker explained that Mother would become argumentative,
would blame caseworkers, and say that the workers "just want to take her kids." Mother's
visits with the children also never went further than being supervised by SFCS.

Mother's delays in addressing her addiction, together with refusing to adequately
address her employment situation, support the district court's finding that Mother had not
changed her circumstances and conditions necessary to meet the needs of her children.
Mother conceded that she cannot provide for herself or her family without help from
others, and apart from an upcoming interview, provided no support for how she plans on
changing her circumstances in the future.

D. There is clear and convincing evidence to support the district court's finding that
Mother failed to carry out a reasonable plan directed toward integrating the child
into the parental home.

A district court may terminate a parent's rights to his or her child if the child is not
in the custody of the parent and there is clear and convincing evidence that the parent
failed to carry out a reasonable plan directed toward reintegrating the parent and child.
12
K.S.A. 2018 Supp. 38-2269(c)(3). Here, Mother displayed a lack of effort to complete
most of the reintegration tasks. Mother's reintegration tasks and outcomes were testified
to as follows:

 Mother was to abstain from drugs and alcohol. She admitted using
methamphetamine throughout most of the case. Testimony showed that Mother
either tested positive or refused to submit the majority of drug tests requested
by SFCS.

 Mother was to obtain and maintain appropriate housing and to look for
employment. Mother did not obtain housing for over a year after this case
began and refused to look for employment until the time of the termination
hearing.

 Mother needed to complete a mental health assessment and follow
recommendations. According to SFCS, Mother started, but never completed,
the full evaluation. Mother admits to leaving before the evaluation was
completed but claims to have returned and completed it. Yet, no report was
ever provided to SFCS and mother admits she has been unable to obtain any
report. In September 2018, Mother completed a psychological evaluation for
her disability application and admitted this evaluation as an exhibit at her
termination hearing. The district court noted that Mother was not truthful with
the evaluator about her arrest record or drug use history.

 Mother was to inform SFCS of any changes of address, phone number, or
employment. A SFCS caseworker testified that Mother "sometimes" updated
SFCS with this information.

13
 Mother was to have no unsupervised contact with the children. As shown
above, Mother consistently ignored this order when she would communicate
with A.R. and tried to have an unsupervised visit with her children at school.

 Mother was to interact appropriately with the children during visits, Mother
was not to talk about inappropriate topics, and Mother was not to encourage
the children not to follow the rules of placement. As described above, Mother
had inappropriate conversations with A.R. Mother testified she had a strong
bond with the children, and a SFCS caseworker agreed that Mother interacted
well with her children during visits and that they have a good bond.

In sum, based on a review of the full evidentiary record considered in a light
favoring the State, a rational fact-finder could determine to a high probability that Mother
was unfit to parent her children at the time of the termination hearing based on the four
factors the court identified.

E. Evidence supports the district court's finding that Mother's conduct or condition
was unlikely to change in the foreseeable future.

Having found unfitness, a district court must also determine whether the conduct
or condition is unlikely to change in the foreseeable future. K.S.A. 2018 Supp. 38-
2269(a).

"When assessing the foreseeable future, this court uses 'child time' as a measure. The
Revised Kansas Code for Care of Children—K.S.A. 2018 Supp. 38-2201 et seq.—
recognizes that children experience the passage of time in a way that makes a month or a
year seem considerably longer than it would for an adult, and that different perception
typically points toward a prompt, permanent disposition. K.S.A. 2018 Supp. 38-
2201(b)(4); In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re G.A.Y., No.
109,605, 2013 WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion) ('"child time"'
14
differs from '"adult time"' in care proceedings 'in the sense that a year . . . reflects a much
longer portion of a minor's life than an adult's')." In re M.S., 56 Kan. App. 2d 1247, 1263-
64, 447 P.3d 994 (2019).

Here, there is support for the district court's determination that Mother's unfitness
was unlikely to change in the foreseeable future. Mother argues that she demonstrated
"secondary change" because she "demonstrated an ability to recognize the error of her
ways and make a change for the better." Although Mother did show some change, the
record shows that the issues that were present in Mother's life at the beginning of the case
were still present at the time of the termination hearing.

Mother did complete some of the reintegration tasks, but she showed a significant
unwillingness to work with SFCS and would only seek assistance as she saw fit. For
example, Mother refused to submit drug tests through SFCS but sought out her own tests
through a separate agency. Mother was still refusing to submit tests to SFCS the week of
the termination hearing. And Mother only began outpatient treatment for a
methamphetamine addiction three days before the termination hearing, after this case had
been pending for nearly 18 months.

Although Mother ultimately obtained suitable housing, Mother has not found
employment and could not explain how she could financially support her children for the
foreseeable future. Mother relies on the help of public agencies and her church to provide
support for all basic necessities, including rent, water, electricity, heat, food, clothing,
and transportation. Mother did not know how long the generosity of her church would
continue but testified that she had a job interview coming up. Apart from the church and
the upcoming job interview, Mother had no concrete plans for how she would support her
children in the future.

15
In its ruling, the district court noted that T.M. had been in DCF custody for about a
third of his life. After nearly 18 months, the court observed it had no verification of
completion of any drug treatment, or her disability status, and noted Mother's inconsistent
testimony about her drug usage and job/disability plans and her continuing refusal to
cooperate with SFCS. The totality of evidence supports the district court's finding that
Mother's unfitness is unlikely to change in the future.

F. The district court did not abuse its discretion in finding that termination of
Mother's parental rights was in the best interests of the children.

Having found unfitness, the district court must then decide whether termination of
parental rights is "in the best interests of the child[, giving] primary consideration to the
physical, mental and emotional health of the child." K.S.A. 2018 Supp. 38-2269(g)(1).
This decision is within the sound discretion of the district court, and the district court
makes that decision based on a preponderance of the evidence. An appellate court
reviews the district court's decision for an abuse of discretion. In re R.S., 50 Kan. App. 2d
at 1115-16. A district court exceeds its broad latitude if its ruling is based on an error of
law or fact or is "arbitrary, fanciful, or unreasonable." Northern Natural Gas Co. v.
ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 571 U.S. 826
(2013).

Because the facts in the record support the district court's findings, the question
then becomes whether no reasonable district court would come to the same conclusion.
Here, as stated, the evidence shows that Mother could not provide stability for her
children because of her struggle with her addiction to methamphetamine, she lacked
motivation to find employment, she waited over a year to obtain appropriate housing, and
she often refused to work with SFCS to complete the required reintegration tasks.
Mother's current outpatient treatment is of undetermined duration, she admits she cannot
presently care for her children, and she has no definite plan on how to reach the point
16
where she can parent the children. She simply asks for more time. The district court
concluded that it was in the children's best interests to have permanency and it "can't let
the kids continue to wait" for Mother to change her circumstances. The evidence here is
substantial, and we find no abuse of discretion in the district court's termination of
Mother's parental rights to A.M. and T.M.

Affirmed.