In re P.W.

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NOT DESIGNATED FOR PUBLICATION

No. 119,490

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of P.W. and C.W.,
Minor Children.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed December 7, 2018.
Affirmed.

Anita Settle Kemp, of Wichita, for appellant natural mother.

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

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

PER CURIAM: Mother appeals the district court's termination of her parental rights
of P.W., her minor child born in 2010, and C.W., her minor child born in 2013. The
district court found that Mother was unfit, that her condition was unlikely to change in
the foreseeable future, and that termination was in the best interests of her children.
Mother appeals arguing that the district court's finding of unfitness is not supported by
clear and convincing evidence. Father's parental rights were also terminated but filed a
separate appeal and does not join Mother in this appeal. Finding no error, we affirm.

Factual Background

In September 2016, the State filed a child in need of care (CINC) petition because
P.W. was not attending school. The petition was amended in November 2016 to include
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an additional petition regarding C.W. The district court granted temporary custody of the
children to the Department for Children and Families (DCF) based on allegations of
truancy, physical abuse, domestic violence, and substance abuse.

At a review hearing in December 2016, Mother and Father were required to
submit to urinalysis (UA) testing. Both parents tested positive for methamphetamine and
marijuana. As a result, the district court ordered Mother and Father to obtain drug and
alcohol assessments.

The children were adjudicated CINC on January 11, 2017. At the hearing, both
parents pled no contest to the allegations and waived their right to an evidentiary hearing.
The district court found that despite reasonable efforts to facilitate a permanency plan, the
parents continued to test positive for marijuana. The court ordered the children to remain
in DCF custody and ordered a change of venue to Sedgwick County because the parents
had moved there.

At a permanency hearing in March 2017, both parents were ordered to submit to a
hair follicle test within 24 hours. But neither submitted to the test until almost two
months later when both tested positive for amphetamine and methamphetamine. Over the
next few months, both continued to test positive for drugs and refused to submit to
several UA and hair follicle tests.

In October 2017, the State filed a motion to terminate both parents' parental rights.
At the termination hearing in January 2018, the district court heard testimony from
Mother, Father, the children's maternal aunt (Aunt), and Christina Somers (a licensed
permanency specialist). The State also submitted 23 exhibits showing the parents'
achievement plans, their substance abuse problems, and their refusal to admit drug use.

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Mother testified about her living conditions, sobriety, and relationship with Father.
She testified that although she had a reintegration plan, she never went to the Regional
Alcohol and Drug Assessment Center to complete a drug assessment and had failed to
complete any parenting classes, counseling, and some required UA's. According to
Mother, after her children were placed in DCF custody, she almost immediately moved in
with her mother-in-law to get "clean and sober." Yet Mother continued to test positive for
marijuana, amphetamines, and methamphetamine.

Mother admitted to smoking marijuana for "[a] couple of months" but denied ever
using methamphetamine. Mother testified that methamphetamine was in her system only
because the baggie from which she got her marijuana probably had methamphetamine in
it previously. Mother contended that her use of Ibuprofen, Naproxen, and Zantac caused
her to test positive for marijuana, methamphetamine, and amphetamines. Mother also
denied that her husband ever knowingly used methamphetamine. While Mother never
conceded to using methamphetamine directly, she testified that if she were using, it
would not affect her parenting skills.

Mother testified that she had previously expressed fear of being in her home due to
arguments with Father but she refused to say that Father had hit her. The friend to which
Mother had expressed these fears had taken Mother to a domestic violence shelter in
October 2016. Mother admitted that she was evicted from her house for not paying rent.
She told her landlord that she was unable to pay rent because she had to pay for her
mother's funeral expenses. But her mother had not died and neither had incurred funeral
expenses.

After failing to attend scheduled meetings, Mother took over a month to meet with
her case manager to discuss her reintegration plan. Mother also waited nearly six months
from the time her children had been placed in DCF custody to begin her reintegration
tasks. She thought that she needed more time to complete her reintegration tasks and did
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not think it would be reasonable or good for the children if they were returned to her
immediately.

Mother eventually stated that she was not going to answer any more questions. As
a result, the district court found that Mother was no longer available to testify and held
that any statements she had made to other parties would be admissible.

Father testified next. He admitted to having used methamphetamine before the
children were taken from his custody. Father testified that the restaurant he and Mother
worked at was filled with workers who smoked methamphetamine together while on
shift. Father testified that he and Mother were taking part in a parenting class and had
completed the course. Father also testified that he and Mother were attending family
counseling with a therapist, but Father failed to provide DCF with proof of the classes
and therapy sessions. Father also admitted that he had not yet acknowledged his drug use
issues with the therapist and had recently failed a hair follicle test.

The children's maternal aunt testified next. She had been raising the children in her
home since June 10, 2017. Although there was an adjustment period, Aunt testified that
both children were doing well in her care. Both were also doing well in school and P.W.
was in therapy. While the children were in Aunt's care, Mother and Father were ordered
to contact their children only over the phone and at the children's request. Before that
court order went into effect, Aunt recalled one or two in-person visits Mother had with
C.W. but P.W. had refused to attend. After the order went into effect, the children had no
visitation with their parents and requested only one phone call with them on Christmas.
That Christmas phone call was, however, cut short when the parents made several false
promises which caused P.W. great distress. Aunt testified that almost any interaction with
the parents consistently caused P.W. sadness and frustration.

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Somers, a permanency specialist, testified next. She said the CINC proceedings
began based on truancy concerns for P.W. and then the case progressed with concerns of
substance abuse, homelessness, and physical abuse between the parents. P.W. had alleged
that Mother and Father had used "gray tape" on her and C.W. and had physically abused
them, but that claim was never substantiated.

Somers testified regarding her interactions with Mother. On one occasion, Mother
yelled at Somers as she tried to go over her reintegration plan. Mother claimed that
Somers was failing to do her job and that she had already completed the necessary tasks.
Somers, however, did not believe that Mother had completed even a single task in her
reintegration plan. Somers explained that Mother had failed to attend several meetings
with her, some of which she had not canceled before failing to show. In April 2017,
Somers finally met with both parents, discussed their achievement plan in detail, and
gave the couple a copy of the plan. She told the parents that they needed to complete a
couple of court orders, including a drug assessment and drug testing, but the parents
refused to sign the plan and failed to follow the court orders.

Somers' gravest concerns included P.W.'s refusal to visit with the parents, and the
parent's drug use. Mother and Father eventually submitted hair follicle tests which were
positive for methamphetamine and amphetamines, and both parents continued to test
positive for methamphetamine and marijuana in the following months. Out of the ten
times Mother and Father were requested to complete UA's, they completed only two.

After considering changing circumstances, including Mother's place of work,
Somers organized three different achievement plans for the parents. The plans were also
amended because Mother and Father were failing to complete almost any of the plan
tasks. Eventually both Mother and Father completed some tasks, including the following:
getting a SACK assessment, gaining employment, showing proof of a lease agreement,
getting water and gas turned on, and completing clinicals. Still, Mother and Father failed
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UA's after treatment and Mother tested positive for methamphetamine and amphetamines
while still in treatment. Both were asked to reenter substance abuse treatment but refused.
Mother and Father also failed to take parenting and anger management classes as
required.

As of November 2017, the plan for P.W. and C.W. was changed from
reintegration with Mother and Father to adoption. Somers agreed with this change
because Mother and Father continued to abuse drugs and made little progress toward
reintegration. Somers was concerned with Mother's refusal to admit using drugs or to
accept blame for the children's circumstances. Somers also worried that C.W. no longer
had a parent-child relationship with Mother and Father. C.W. had even concocted a story
that Mother had died in a tornado and started calling the parents by their first names
instead of mom and dad.

Somers concluded that she did not think the children were safe in Mother and
Father's care and that she did not see the parents changing in the foreseeable future.
Somers thought it would be in the children's best interest to terminate both parents'
parental rights.

After considering the evidence presented, the district court found both parents
unfit by reason of conduct or condition which rendered them unable to properly care for
their children and the conduct or condition was unlikely to change in the foreseeable
future. The district court also considered the physical, mental, and emotional health of the
children, contemplated the foreseeable future viewed through "child time," and
determined that termination of parental rights was in the best interest of the children.
Mother timely appeals.



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Governing Legal Principles

We begin with some general principles governing proceedings under the Revised
Kansas Code for Care of Children, K.S.A. 20017 Supp. 38-2201 et seq. 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. 2017 Supp. 38-
2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).

As provided in K.S.A. 2016 Supp. 38-2269(a), the State 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. 2017 Supp. 38-2269(b). And the statute
lists four other factors to be considered if a parent no longer has physical custody of a
child. K.S.A. 2017 Supp. 38-2269(c). In addition, the State may rely on 1 or more of 13
statutory presumptions of unfitness outlined in K.S.A. 2017 Supp. 38-2271.

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.

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Having found unfitness, the district court must then determine whether termination
of parental rights is "in the best interests of the child." K.S.A. 2017 Supp. 38-2269(g).
The district court makes that determination based on a preponderance of the evidence. In
re R.S., 50 Kan. App. 2d at 1116. The best-interests issue is essentially entrusted to the
district court acting within its sound judicial discretion. 50 Kan. App. 2d at 1115-16. An
appellate court reviews those sorts of decisions for abuse of discretion. 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).

Clear and convincing evidence supports the district court's decision to terminate
Mother's parental rights.

Mother contends that the district court's finding that she was unfit and that her
unfitness was unlikely to change in the foreseeable future was not supported by sufficient
evidence.

The district court found five statutory factors had established Mother's unfitness:

K.S.A. 2017 Supp. 38-2269(b)(3) — "the use of intoxicating liquors or narcotics 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. 2017 Supp. 38-2269(b)(7) — "failure of reasonable efforts made by appropriate
public or private agencies to rehabilitate the family."

K.S.A. 2017 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."
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K.S.A. 2017 Supp. 38-2269(c)(2) — "failure to maintain regular visitation, contact or
communication with the child or with the custodian of the child."

K.S.A. 2017 Supp. 38-2269(c)(3) — "failure to carry out a reasonable plan approved by
the court directed toward the integration of the child into a parental home."

Mother contests only two of these factors—the first and the third.

Mother fails to brief any issues regarding the three remaining factors. Yet any one
of those factors, alone, would be sufficient to establish unfitness. K.S.A. 2017 Supp. 38-
2269(f). By not briefing any claim of error, Mother has waived or abandoned any
challenge to the court's finding that those three factors were met. See State v. Arnett, 307
Kan. 648, 650, 413 P.3d 787 (2018). So we need not reach Mother's arguments about the
first and third factors.

We do so, however, in an abundance of caution. Mother first argues that the
district court erred in finding that her use of intoxicating drugs was unlikely to change in
the foreseeable future. Mother asserts that she was sober from May 19, 2017, to
September 27, 2017. Mother also argues that the State failed to prove that any nexus
exists between a person's use of an intoxicating substance and impaired parenting skills.

The district court found that Mother's hair follicle and UA test results, combined
with Mother's refusal to submit to several court ordered tests, evidenced Mother's past
and continued use of methamphetamine and marijuana. The district court was greatly
concerned by Mother's refusal to acknowledge her drug use. Still, the district court found
that its "greatest concern comes from [Mother], her actual statement that she believes that
an active meth user can adequately care for children. That . . . is absolutely an indicator
that if . . . she gets an opportunity to care for these kids and use methamphetamine and
drugs, she will do it."
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Although Mother consistently denied using anything but marijuana, the record
shows Mother's past and continued use of methamphetamine, amphetamines, and
marijuana. The district court found Mother's testimony lacked credibility, and we cannot
revisit that finding.

Mother contends no causal nexus was shown between her drug use and her
parenting skills. Although the record may not show direct evidence of how Mother's drug
use affects her children, the State is not required to prove by direct evidence that Mother's
conduct was due to her drug use. Any material facts may be proved by direct testimony,
by indirect or circumstantial evidence, or by a combination of both. See State v. Tillery,
227 Kan. 342, 346, 606 P.2d 1031 (1980); State v. Higdon, 224 Kan. 720, 723, 585 P.2d
1048 (1978). No exclusive mode of proof of the factors supporting termination is
prescribed by law. In In re C.A.G.-V., No. 113,334, 2015 WL 5224828 (Kan. App. 2015)
(unpublished opinion), we found: "While there may not be direct evidence that Father's
drug use was in and of itself harmful to C.A.G.-V., there is clear and convincing evidence
that Father's failure to acknowledge his drug issues created a significant impediment
towards reintegration." 2015 WL 5224828, at *4. The same is true here.

The record contains circumstantial evidence that Mother's drug use and failure to
acknowledge her drug issues created a significant impediment towards reintegration.
Somers testified that parents were required to have a negative hair follicle test before
DCF workers could enter the home to check it for suitability. Because Mother failed to
meet that requirement, DCF workers were unable to check the home for suitable living
conditions. The children cannot return to the home until Mother's house is deemed
suitable. Mother's refusal to acknowledge her drug use has resulted in Mother's failure to
address her substance abuse in any meaningful way. Mother required additional
substance abuse treatment as a result of continued failed UA's and her refusal to
acknowledge her drug problems. And Mother's failure to complete her reintegration tasks
caused P.W. great emotional distress. As such, we find that Mother's drug usage impacted
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her ability to parent and that she was unwilling to change her circumstances in order to
meet her children's needs.

We find clear and convincing evidence that Mother's use of narcotics or dangerous
drugs was of such duration or nature as to render her unable to care for the ongoing
physical, mental or emotional needs of her children. The district court's reliance on
K.S.A. 2017 Supp. 38-2269(b)(3) was proper.

Next Mother argues that the district court erred in finding that she showed a lack
of effort to adjust her circumstances. K.S.A. 2017 Supp. 38-2269(b)(8). She contends that
she made some progress toward reintegration, so cannot be found to have lacked effort.
The record confirms that Mother completed some of her tasks but failed to complete the
majority of her case plan tasks. And the fact that Mother completed some tasks does not
prove that Mother would continue to complete her reintegration tasks or ever successfully
complete a reintegration plan.

It is true that Mother received a clinical assessment, went to out-patient treatment,
and provided DCF with a housing lease. However, Mother failed to attend anger
management or parenting classes, continued using drugs, failed to admit to her drug
usage, and refused to attend further treatment for her substance abuse. Somers found
Mother and Father's refusal to admit to using drugs to be "a huge barrier . . . . We can't
move forward unless they admit there is an issue, they need help." Relatedly, Mother
never accepted blame for the initiation of the CINC proceedings. When asked why she
needed more time to complete her tasks, she stated "[t]o become the parent I should be,
that I need to be." Still, Mother could not detail why she was not the parent she needed to
be and continued to deny ever using methamphetamine. These children "'should not have
to endure the inevitable to [their] great detriment and harm in order to give the mother an
opportunity to prove her suitability.'" In re Price, 7 Kan. App. 2d 477, 480, 644 P.2d 467
(1982) quoting In re East, 32 Ohio Misc. 65, 69, 288 N.E.2d 343 [1972]).
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Lastly, Mother contends she could not be found to be unfit in the foreseeable
future because the progress she achieved toward reintegration indicates that her progress
would continue into the future.

We examine the "foreseeable future" from the perspective of a child. In re M.H.,
50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014). Children and adults have different
perceptions of time, and a child has the right to permanency within a time frame that is
reasonable to them. 50 Kan. App. 2d at 1170. A district court may look to a parent's past
conduct as an indicator of future behavior. See In re Price, 7 Kan. App. 2d at 483; In re
M.T.S., No. 112,776, 2015 WL 2343435, at *8 (Kan. App. 2015) (unpublished opinion).
P.W. and C.W. are now eight years old and five years old. By the date of the termination
hearing the children had been in DCF custody for 14 months. And Mother admitted that
she waited six months before even beginning her reintegration tasks. While these time
frames may appear insignificant to Mother, they are a significant amount of time to
children.

As noted above, the record does not support Mother's view of her progress toward
reintegration. We find no error in the district court's finding that Mother is unfit and
unlikely to change in the foreseeable future.

Conclusion

Having reviewed the record, we agree that Mother's consistent drug use and lack
of effort to adjust her circumstances warranted termination of her parental rights. We are
convinced that a rational fact-finder would have found it highly probable that Mother is
unfit and that her unfitness is unlikely to change in the foreseeable future. The district
court did not abuse its discretion in finding that termination of parental rights is in the
children's best interests. Accordingly, we affirm.