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NOT DESIGNATED FOR PUBLICATION

Nos. 125,125

 125,126

 125,127

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of D.J., K.J., and J.J., 

Minor Children.

MEMORANDUM OPINION

Appeal from Thomas District Court; KEVIN BERENS, judge. Opinion filed November 4, 2022. 

Affirmed.

Craig L. Uhrich, of Uhrich Law Firm P.A., of Oakley, for appellant natural mother.

Leslie C. Beims, of Goodland, for appellant natural grandmother.

Todd R. Stramel, of Stramel Law Firm, P.A., of Colby, for appellee. 

Before GARDNER, P.J., WARNER and COBLE, JJ.

PER CURIAM: In August 2020 the district court adjudicated D.J., K.J., and J.J. 

children in need of care (CINC) and removed them from their mother's custody. When 

the case failed to progress positively, the State moved to terminate M.E.'s (Mother's) 

parental rights. In February 2022, the district court found by clear and convincing 

evidence that Mother was unfit, that her unfitness was unlikely to change in the 

foreseeable future, and that termination of Mother's parental rights was in the children's 

best interests. Mother appeals. After reviewing the record and finding no error, we affirm.
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Factual and Procedural Background

Mother and T.J. (Father) had three children, D.J. (born in 2015), K.J. (born in 

2014), and J.J. (born in 2011). In late 2016, Father, with whom Mother was no longer 

living, died in a car accident. Around July 2017, Mother began using methamphetamine. 

In September 2017, Mother sent all three children to live with their maternal grandmother 

because Mother "was not in the right mental state" and she had a "slight resentment"

toward them because they looked like Father. Until June 2019 the children lived with 

their grandmother. 

In March 2018, Mother's drug use led to her felony drug conviction, and she 

continued to use methamphetamine afterward. When Mother's continued drug use caused 

her to violate her probation, she was incarcerated from September 2018 to March or April 

2019. According to Mother, in July 2019, the children returned to her care. At that time, 

she was in a relationship with a man named Charles, or "Chuck." 

In March 2020, Mother's drug use landed her back in jail again. Mother had been 

previously convicted of obstruction—a felony, and the drug use was a violation of her 

probation. Mother had lied to law enforcement during their investigation of a domestic 

abuse incident between her and Chuck. Mother changed her initial statement to police, 

saying Chuck had threatened to "drag her behind the truck until her body was not even 

recognizable" if she did not change it. She was released from custody in April 2020. 

Yet again, in June 2020, Mother was incarcerated because of her drug use. As a 

result, on June 29, the State of Kansas filed a CINC petition alleging that "[M]other is in 

and out of jail and consistently testing positive for meth. [Mother] is struggling to 

maintain her own mental health and is unable to provide the care necessary for her 

children." Mother did not contest those allegations and in August 2020, the district court 
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adjudicated all three children in need of care. The children remained in an out-of-home 

placement during this case, living mainly with Father's brother.

When the children arrived at their placement, their uncle described it as "[j]ust 

pandemonium." To him, "it seemed like they had never, like, been in a, like, family 

setting, to me, before." K.J. was wetting the bed frequently and having night terrors. K.J. 

also had "a weight issue" and was classified as "morbidly obese" at her first doctor's 

appointment at her placement. J.J. was on an Individualized Education Program (IEP) 

due to ADHD and anxiety, which required pulling him out of class for special instruction 

for long periods of his school day. D.J. struggled with crying and cussing at school. 

But over time in their placement, the children's struggles began to subside. K.J.'s 

bedwetting "decreased significantly," as did her night terrors. Her weight entered a 

healthier range. J.J.'s IEP problematic behaviors decreased significantly, so he only 

needed half of the services he needed before placement. D.J.'s temperament improved. 

Mother testified that her drug use began "in order to not kill" herself because of 

her battle with mental health after the death of her estranged husband, and it continued 

because she was in an abusive relationship with Chuck. As an example of Chuck's abuse, 

Mother stated that he had once strangled her to the point that she nearly became 

unconscious. Even so, one witness stated that Mother told her "I'm not very good with the 

parenting thing. I leave that up to Chuck". Eventually, Chuck moved out of Mother's 

residence, but his three children continued to live with her. Thus Mother and Chuck 

continued to have daily contact, typically consisting of 30-minute conversations.

Mother admitted knowing that her continued relationship with Chuck was 

impeding her ability to get her children back. The relationship between the two affected 

her mental health and her sobriety. The children's maternal grandmother testified that 

Mother would do well for a while and then it would "f[a]ll through" because Mother 
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resumed her relationship with Chuck. She found it "alarming" that Mother still had daily 

contact with Chuck—she did not think the children should be around him. 

Mother did complete some case plan tasks. She was employed, maintained stable 

and appropriate housing, participated in some mental health services, completed an inpatient drug treatment program, signed all necessary releases, completed a parenting 

seminar, and participated in visitations with the children that "went well." In fact, a case 

worker reported:

"Visits are going well. The case team has no concerns regarding [Mother's] ability to 

engage, interact, set limits, or discipline the children. [Mother] does well at setting limits 

and planning her time effectively to get the most out of her visit with her children. [The 

children] all enjoy the visits. [Mother] helps them with their homework, they talk, play 

games, watch [television], cook, etc." 

Later, another case worker report confirmed, "visits continue to [go] well," and Mother 

continued to "demonstrate[] good parenting skills and practices, and demonstrates a 

strong, loving bond with her children." 

Still, the children struggled. During visits with Mother, all three of them would go 

back to "talking like babies." And K.J. would go from happy and energetic to apathetic 

and quiet and returned to wetting the bed and having night terrors. The children were 

"confused" and "sad" because of how long the reintegration process was taking. 

The trial testimony reflected that when Mother was sober, she was a good parent. 

Yet her sobriety was a "roller coaster." She could not stay sober. For example, although 

she completed an in-patient drug treatment program, she relapsed shortly after, in June 

2021. In fact, she used methamphetamine just the week before the termination trial. The 

trial testimony reflects that her sobriety was the main roadblock keeping her from 

effectively parenting her children and achieving reintegration. 
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To accomplish the goal of reintegration, Saint Francis Ministries (SFM) tried to 

get Mother back into treatment after her relapse and offered "quite a few resources" to aid 

in her sobriety. But Mother did not use these resources and refused to go back to inpatient treatment because she did not think it would be helpful. SFM recommended that 

Mother get a drug and alcohol evaluation, but Mother also refused, claiming she could 

work through her drug issues on her own. Mother also refused to take seven drug tests, 

even though she knew refusal would impede her unsupervised visitation. Still, Mother 

continued to use methamphetamine.

The district court terminated Mother's parental rights to all three children. It found 

Mother unfit because of her inability to remain sober, her failure to respond to the 

rehabilitation efforts made by the State and SFM, and her lack of effort to adjust her own 

circumstances to meet the needs of her children. The district court also applied a statutory 

presumption of unfitness because the children had been in an out of home placement for 

more than a year but reinforced that "[t]he State has also met the burden by clear and 

convincing evidence [on] the factors stated above independent of the application of the 

presumption [of unfitness]." 

To support its conclusion that Mother was unfit, the district court made several 

findings of fact. It held: "The parent has willfully refused to carry out a reasonable, 

court-approved reintegration case plan, in part illustrated by [Mother's] refusal to submit 

to drug testing and refusal to participate in drug and alcohol treatment." As for Mother's 

drug use, the district court found

"the [court-approved reintegration] plan included the requirements that Mother submit to 

random mouth swabs and UA's within 24 hours of request and that she participate in a 

drug and alcohol treatment; since July of 2021 through December 2021, Mother has 

willfully refused to take mouth swabs or UA's as requested and willfully refused to 

participate in drug treatment despite having relapsed in to using methamphetamine." 
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The court did acknowledge that Mother has employment, a suitable home, and is 

taking medication for her mental health, "but [she] continues to use meth such that she is 

sober 25 days out of 30." And although Mother testified that she was willing to restart her 

participation in drug treatment, "[t]estimony indicated it would take at least one year to 

18 months before Mother might be able to properly care for the children if she attended 

treatment and thereafter maintained sobriety and mental health treatment." The district 

court thus found Mother presently unfit to care for the children and found this condition 

unlikely to change in the foreseeable future. The district court found that "one year to 18 

months is not a reasonable time, when viewed from the perspective of the children, for 

Mother to become fit and able to care for the children." It also found that termination was 

in the best interests of the children. Accordingly, the district court terminated Mother's 

parental rights. 

Mother timely appeals and this court consolidated the cases for appeal. 

Analysis

On appeal Mother raises two arguments. First, she argues that the district court 

incorrectly applied a statutory presumption of unfitness. Second, Mother argues that there 

was insufficient evidence to support termination of her parental rights because she was 

successfully completing case plan tasks. 

Did the District Court Err in Applying a Statutory Presumption of Unfitness?

Mother first argues that the district court erred by applying the presumption of 

unfitness found in K.S.A. 38-2271(a)(5). That statute establishes a presumption of 

parental unfitness if the state shows by clear and convincing evidence that the child has 

been in an out-of-home placement under court order for a period of one year or longer 
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and the parent has substantially neglected or willfully refused to carry out a reasonable 

plan, approved by the court, directed toward reintegration.

We decline to reach the merits of this issue because the district court did not solely 

rely on this presumption when finding Mother unfit. The district court's order terminating 

Mother's parental rights shows that the district court also found clear and convincing 

evidence of Mother's unfitness independent of the statutory presumption of unfitness. 

That order states: "The State has also met the burden by clear and convincing evidence 

[on] the factors stated above independent of the application of the presumption." 

Application of the statutory presumption in K.S.A. 38-2271(a)(5) was thus superfluous 

considering the district court's finding of unfitness based on factors in K.S.A. 38-

2269(b)(3), (7), and (8). Those factors are (1) Mother's use of drugs, (2) the failure of 

reasonable efforts made by the State and agencies to rehabilitate the family, and (3) 

Mother's lack of effort to adjust her circumstances, conduct, or conditions to meet the 

needs of her children. We address Mother's challenges to these factors below.

Did the District Court Properly Terminate Mother's Parental Rights?

Mother argues insufficient evidence supports the termination of her parental 

rights. First, she argues that termination was improper because she was successfully 

completing her case plan tasks. Second, she argues that the district court should not have 

applied the presumption of unfitness in K.S.A. 38-2271(a)(5). Third, she argues that drug 

use is not a sufficient basis for termination of parental rights. 

Standard of Review and Summary of the District Court's Findings

Parents have a constitutionally recognized fundamental right to a parental 

relationship with their children. 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 
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(2008). But that right is not absolute. It yields to the needs of the children when a parent 

is found to be unfit under our statutes.

Under K.S.A. 38-2269(a):

"When the child has been adjudicated to be a child in need of care, the court may 

terminate parental rights or appoint a permanent custodian when the court finds 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."

"If the court makes a finding of unfitness, the court shall consider whether termination of 

parental rights as requested in the petition or motion is in the best interests of the child." 

K.S.A. 38-2269(g)(1).

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, it is 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 B.D.-Y., 286 Kan. at 705. In In re B.D.-Y., our Supreme Court explained that "clear 

and convincing evidence" requires the fact-finder to believe "that the truth of the facts 

asserted is highly probable." 286 Kan. at 697. "[T]he appellate court does not weigh 

conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact." 

286 Kan. at 705.

Under K.S.A. 38-2269(b), these factors are among those that a court can consider 

in determining a parent's unfitness:
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"(1) Emotional illness, mental illness, mental deficiency or physical disability of 

the parent, of such duration or nature as to render the parent unable to care for the 

ongoing physical, mental and emotional needs of the child;

"(2) conduct toward a child of a physically, emotionally or sexually cruel or 

abusive nature;

"(3) the use of intoxicating liquors or narcotic or dangerous drugs of such 

duration or nature as to render the parent unable to care for the ongoing physical, mental 

or emotional needs of the child;

"(4) physical, mental or emotional abuse or neglect or sexual abuse of a child;

"(5) conviction of a felony and imprisonment;

"(6) unexplained injury or death of another child or stepchild of the parent or any 

child in the care of the parent at the time of injury or death;

"(7) failure of reasonable efforts made by appropriate public or private agencies 

to rehabilitate the family;

"(8) lack of effort on the part of the parent to adjust the parent's circumstances, 

conduct or conditions to meet the needs of the child; and

"(9) whether, as a result of the actions or inactions attributable to the parent and 

one or more of the factors listed in subsection (c) apply, the child has been in the custody 

of the secretary and placed with neither parent for 15 of the most recent 22 months 

beginning 60 days after the date on which a child in the secretary's custody was removed 

from the child's home."

Any single factor may alone be enough to terminate parental rights. K.S.A. 38-2269(f).

Finally, we judge these cases mostly on actions, not intentions:

"A parent may be labeled 'unfit' under the law even though he or she loves the child and 

wants to do the right thing, which may be the case here. But we must judge these cases 

based mostly upon actions, not intentions, and we must keep in mind that a child deserves 

to have some final resolution within a time frame that is appropriate from that child's 

sense of time." In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237 (2008).
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In making its finding of unfitness, the district court applied these factors under 

K.S.A. 38-2269(b):

• Mother's use of a narcotic or dangerous drugs of such duration or nature as 

to render her unable to care for the ongoing physical, mental, or emotional 

needs of the children—K.S.A. 38-2269(b)(3);

• Failure of reasonable efforts made by appropriate public or private agencies 

to rehabilitate the family—K.S.A. 38-2269(b)(7); and

• Lack of effort on the part of Mother to adjust her circumstances, conduct, 

or conditions to meet the needs of the children—K.S.A. 38-2269(b)(8). 

Mother's Completion of Case Plan Tasks

First, Mother argues that termination was improper because she was successfully 

completing her case plan tasks. We agree that Mother did many of the tasks assigned to 

her. At the time of the termination, Mother had completed in-patient drug treatment, 

cognitive behavior therapy, and a reintegration parenting program. She was employed, 

was maintaining suitable housing, and had completed the releases SFM requested. 

Additionally, visitation with the children was going well. 

Yet one case plan task loomed large—Mother's sobriety. Although Mother 

completed court orders during the 18-month pendency of the children's cases, she did not 

make any lasting progress in the area that presented her biggest hurdle in parenting her 

children. She refused to submit as requested to UAs seven times and continued to relapse 

and use methamphetamine, even as recently as a week before the termination trial, all 

while knowing that her sobriety was the key to reintegration with her children. 

Mother did not show a concerted willingness to address her addiction issues. 

Although she completed in-patient drug treatment once, she then began using 
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methamphetamine again and refused to return to in-patient drug treatment. A case worker

testified that Mother did not think inpatient treatment would be helpful because she had 

already been there and done that. Mother's unwillingness to reenter treatment shows a 

lack of effort on her part to change her circumstances to meet the needs of her children. 

The evidence was sufficient to support a finding of Mother's unfitness under K.S.A. 38-

2269(b)(3), (7), and (8).

Based on "child time," when we view these facts in their totality, sufficient 

evidence supports the district court's separate finding that it was unlikely that Mother's 

condition would change in the foreseeable future. The testimony proved it would take 

Mother over a year to regain sober status and to be able to adequately mother her 

children. The children were already struggling with the uncertainty and length of the 

reintegration process. Mother's inaction toward her sobriety during the case showed that 

she made no major change in her pattern of behavior. Mother's past conduct may be used 

as an indicator of her future behavior. See In re Price, 7 Kan. App. 2d 477, 483, 644 P.2d 

467 (1982); In re M.T.S., No. 112,776, 2015 WL 2343435, at *8 (Kan. App. 2015) 

(unpublished opinion) ("Parental unfitness can be judicially predicted from a parent's past 

history."). Mother's long history of substance abuse, coupled with her use of 

methamphetamine only a week before trial, showed that she was either not willing or not 

able to comply in the foreseeable future. Mother has had longstanding difficulties 

remaining drug free during her children's lives, and her inability to change in the past 

supports the conclusion that Mother's drug use will not change in the foreseeable future. 

Mother tries to undercut these proper findings in two ways. First, Mother argues 

the district court should not have applied the presumption of unfitness in K.S.A. 38-

2271(a)(5). But as we found above, application of this presumption is unnecessary, 

because the district court properly applied other statutory factors of unfitness which are 

supported by sufficient evidence.
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Second, Mother argues that drug use alone is not a sufficient basis for termination 

of parental rights. Yet our Legislature has stated that any single factor listed in (a) alone 

may establish grounds for the termination of parental rights. K.S.A. 38-2269(f). And drug 

use is one such factor. See K.S.A. 38-2269(3) "the use of . . . 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."

To this, Mother replies that the State failed to show that her drug use made her 

unable to care for the needs of her children. Mother argues that when she is sober, she is a 

good mother to her children. We agree that the record may support that assertion. But 

being sober only 25 of 30 days a month is not enough. Children need adequate parenting 

every day. And the children's behavior or demeanor after they were placed with their 

uncle shows substantial improvement over those traits while they were with Mother. 

Clear and convincing evidence shows that the children's physical, mental, and emotional 

health would be harmed in delaying permanency, and termination of Mother's parental 

rights was in the best interests of the children.

The district court properly terminated Mother's parental rights.

Affirmed.