In re A.S.

Decision Date23 November 2022
Docket Number124,719,124,720
PartiesIn the Interests of A.S. and S.S., Minor Children.
CourtCourt of Appeals of Kansas

NOT DESIGNATED FOR PUBLICATION

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Affirmed.

Charles C. Lindberg, of Allen and Associates Law, LLC, of Minneapolis, for appellant natural mother.

Nathan L. Dickey, assistant county attorney, for appellee.

Before WARNER, P.J., GREEN and HILL, JJ.

MEMORANDUM OPINION

PER CURIAM:

Children's needs do not stop while parents struggle with their drug addiction. They need a safe and nurturing home while they are still young. Sometimes, a court must decide how long a neglected child must languish in the care and custody of their addicted parents. Weighing the evidence, the court must decide whether an addicted parent will make sufficient progress in time to fulfill their parental responsibilities or continue with their struggles with drugs, leaving their children to grow up in foster care. This is such a case.

This is an appeal of the termination of her parental rights brought by the mother of two children-one born in 2018 and another born in 2019. She claims that there is insufficient evidence to support the district court's finding that she is unfit and the court erred when it concluded that it is in the best interests of the children to terminate her parental rights. Her arguments are not persuasive and we affirm the district court.

This case history displays continuous drug use by the appellant.

The record displays a struggle with moments of hope, followed by a plunge back into the abyss. While Mother was pregnant with A.S., she used methamphetamine two to three times a week and marijuana daily. Mother tested positive for both drugs in August 2019 when she gave birth to A.S. at a Salina hospital. Mother's husband is the children's father. He was not present for A.S.'s birth. Mother tried to wake him up when she went into labor but did not succeed, so she had to take an ambulance. A.S. spent her first few days suffering from withdrawal symptoms and had to be transferred to a Wichita hospital for care. Father did not visit A.S. in either hospital. He said he did not have transportation and he had to look after the couple's other child-S.S. (born May 2018). Mother went to the Wichita hospital to visit A.S but had to be escorted out by security because she was scratching herself, yelling, crying, and crawling down the hallway. Her behavior was likely due to her own drug withdrawal.

Mother's situation was reported to the Kansas Department for Children and Families (DCF). The State petitioned the district court to find that A.S. and S.S. were children in need of care. The State was concerned with Mother's drug use. Additionally a DCF worker met with Mother and Father (Parents) at their home and noted that they were not well-prepared for A.S.'s arrival-they did not have a car seat, diapers, or formula. The Parents were going to be evicted within a couple of weeks and did not have anywhere to live. The district court adjudicated the children to be in need of care.

St. Francis Ministries handled Parents' case plan. Parents were ordered to complete a number of standard case plan tasks, including:

• obtain and maintain appropriate, stable housing;
• obtain and maintain employment;
• complete a drug and alcohol evaluation and follow all recommendations;
• submit to drug testing;
• attend all appointments with St. Francis; and
• attend visitation with the children.

Parents' drug use severely limited their visits with the children for the rest of 2019. St. Francis required Parents to submit three consecutive negative urine tests (UAs) before they could see the children. Two of Mother's UAs tested positive for THC and one of those also tested positive for methamphetamine and amphetamines. Father did not show up during this time. In November, Parents each had their first negative UAs-but they had missed several appointments and also had a few positive UAs. It was not until December 2019 that Parents began consistently providing negative UAs. Mother went to inpatient drug treatment in December 2019.

Once Parents were sober, they were able to begin visits with their children. In February 2020, visits were for four hours at Parents' home. A St. Francis worker monitored the initial visits, but they quickly moved to unsupervised as St. Francis did not have concerns with Mother's or Father's parenting. By the end of the month, the district court authorized St. Francis to advance to overnight visits.

Unfortunately, before overnight visits began, the COVID-19 pandemic led St. Francis to move all visits to Zoom in March 2020. This policy was in effect until May 2020. Visits were scheduled for 30 minutes but sometimes they ended early. A.S. was still a baby and S.S. was just under two years old so it was hard to engage with the children via video. St. Francis monitored some of these visits after developing some concerns about Father's aggressiveness and cursing. Both Mother and Father testified that the change to video visits was difficult for them and led to them relapsing on substances.

Before resuming in-person visits, St. Francis asked Parents to take hair follicle tests. Mother's June 2020 hair follicle test was positive for methamphetamine and amphetamines. But the UAs she provided between May 2020 and July 2020 were all negative. By the end of July 2020, St. Francis developed concerns that Mother was either using fake urine or someone else's urine to pass UAs. Accordingly, the court ordered Mother to submit to hair follicle testing. Mother did not submit another negative drug test for a year. She either tested positive for methamphetamine or THC, refused the test, or did not show up.

The State moved to terminate Mother's parental rights to both children.

The State moved to terminate Mother's parental rights in August 2020. The termination hearing was continued to allow Mother more time to work on the case plan. There are periods of real progress in this record.

Despite her positive drug tests, Mother could continue visiting with the children. Mother did well in the visits and St. Francis did not have concerns about her interactions with the children or her behavior. St. Francis helped by transporting Parents from their home in Lyons to the St. Francis office in Salina. St. Francis would also give gas money to Parents if they found an alternate transport. Several times St. Francis workers went to Parents' residence to pick them up for a visit only to discover that Parents were not there. Because of Parents' sporadic attendance at visits, St. Francis instituted a rule at the beginning of 2021 requiring Parents to confirm visits by noon the day before the visit.

Mother did not attend any of the six visits scheduled in the first two months of 2021 because she did not confirm her attendance. She also missed two of her four visits in March 2021 due to her failure to confirm. During this time, Mother also skipped all but one of her hair follicle tests-which was positive for THC and methamphetamine.

Mother missed only one visit in April. St. Francis arrived at her residence to transport her and Father to the visit but neither answered the door or their phones. Mother did make it to her other two visits that month. At one visit, St. Francis asked Mother to submit a mouth swab drug test and she refused. They asked her again at her next visit in May 2021 for a mouth swab. She again refused, admitting that it would be positive for marijuana. When she submitted a mouth swab later that month, it was positive for THC and methamphetamine. At the end of May 2021, St. Francis suspended visits until Parents could provide three consecutive negative drug tests.

The termination hearing was held in November 2021.

Mother entered inpatient drug treatment in October 2021. After completing the treatment, she moved into an Oxford House. She testified that the last time she used drugs was September 29, 2021. Father completed his own inpatient treatment and lived in a separate Oxford House (men and women cannot live together at the houses). St. Francis approved of the Oxford Houses for placement of the children.

For most of the case, Parents had been staying with Father's father (Grandfather). They moved in with Grandfather after being evicted from their home shortly after A.S.'s birth. There was a time at the end of 2019 where Parents were not living with Grandfather-they reported sleeping either in their car, a shelter, or a motel paid for by their pastor-but they moved back in with Grandfather by the beginning of 2020. When Parents' visits with the children were moved to video calls in the spring of 2020, St. Francis workers did develop some concerns about them staying with Grandfather. Grandfather could be heard in the background of these calls making vulgar comments. St. Francis also received a call from Father's mother who said she heard Grandfather yelling and cursing at Parents and threatening to kick them out of his home. Additionally, there was not sufficient space for the children in the home.

At some point in 2021, Grandfather moved out of his house but Parents remained illegally. Police went to the house in June 2021 and asked Parents to leave but they refused. The landlord got an eviction order granting Parents 30 days to stay in the house. Parents stayed there despite having no working utilities. After this, St. Francis did not have a location for Mother until October 2021 when she moved into the Oxford House.

Mother struggled to obtain and maintain stable employment throughout the case. In the 27-month duration of the case, Mother had three jobs. She worked at a restaurant for less than two months, a hotel for a couple of months, and less...

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