In re G.R.

                          NOT DESIGNATED FOR PUBLICATION

                                             No. 123,201


                                       In the Interest of G.R.,
                                           A Minor Child.

                                  MEMORANDUM OPINION

       Appeal from Shawnee District Court; RACHEL L. PICKERING, judge. Opinion filed March 19,
2021. Affirmed.

       John Paul D. Washburn, of Washburn Law Office, LLC, of Topeka, for appellant natural mother.

       Morgan L. Hall, deputy district attorney, for appellee.

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

       POWELL, J.: Mother appeals the district court's determination that G.R. is a child
in need of care (CINC), arguing the case should be dismissed because it was originally
filed in the wrong county and that insufficient evidence supports the CINC finding. For
reasons explained below, we disagree and affirm.


       Mother was visiting a friend in Parsons, Kansas, with her four-year-old daughter,
G.R., on March 22, 2019. Apparently, Mother had hoped to return to Topeka that same
day but did not want to drive back late in the evening, so she decided to spend the night.
In an effort to save money, Mother went to the Parsons police station seeking a hotel
voucher to stay the night. As required by the department's protocol, the dispatcher ran

Mother's driver's license and discovered she had three outstanding warrants in Coffey,
Jackson, and Osage counties. Dispatch informed Officer Keenan Roberts, who asked
Mother to come to the lobby to help find a placement for G.R. because Mother was being
arrested. Mother suggested her fiancé, who lived in town, but he was not a viable person
because he did not have a home, was not a blood relative, and had been recently released
from prison.

       Roberts contacted juvenile intake to provide a placement for G.R., which is
required when a child is placed in police protective custody. Mother then suggested
calling her sister, G.R.'s aunt, who lived in Topeka. G.R.'s aunt agreed to come down and
take custody of G.R. Roberts then referred the matter to the Labette County Attorney for
a CINC case to be filed.

       Three days later, the Labette County Attorney filed a CINC petition alleging G.R.
was without adequate parental care or control. The Labette County District Court granted
the State temporary custody with Mother's consent and transferred the case to Shawnee
County because G.R. was currently residing in Shawnee County with her aunt. The
Shawnee County District Court accepted the transfer of venue and later adjudicated G.R.
a child in need of care on February 20, 2020.

       At the adjudication hearing, Roberts testified about the events leading to G.R.
being placed in State custody. Payton Huckabay, who had been G.R.'s permanency case
manager with KVC from April 2019 until she left KVC in December 2019, testified that
her main concerns for Mother were finding a stable home for G.R. and drug usage.
Mother stayed on and off with different friends, lacked stable housing, and failed to
complete several required drug tests. Mother tested positive for drugs on three occasions:
for cocaine on May 28, 2019; for marijuana on August 15, 2019; and for
methamphetamines on August 28, 2019. Mother denied the seriousness of her drug use to
Huckabay. Mother participated in once-a-week supervised visitations, which Huckabay

said went fine, except Mother was often late or would cancel. Mother told Huckabay she
would attend inpatient drug treatment but then failed to do so. Mother consistently had a
job, but she never provided Huckabay with pay stubs to verify income. Mother had not
visited G.R. from September 2019 to December 2019 due to cancellations, no shows, and
the inability to pass two consecutive drug tests. Huckabay also testified that Father was

       Jenny Emfinger, Huckabay's supervisor, took over as case manager when
Huckabay left KVC until the end of January 2020. Emfinger testified Mother had a visit
with G.R. at the end of January 2020, but Mother had been unable to visit earlier in
January because she had been incarcerated.

       Mother testified on her own behalf and stated she had been living with her mother,
G.R.'s grandmother. Mother had been living there for over half a year but never told
KVC that was her address. Mother testified she missed several drug tests because she
could not get from work to the tests in time. Father also testified in support of Mother.

       The district court determined G.R. was a CINC under K.S.A. 2019 Supp. 38-
2202(d)(1) because G.R. lacked adequate parental care and control. The district court
found this determination was supported because of Mother's past and current legal
troubles, lack of stable housing, drug use, and lack of stable income.

       Mother timely appeals.


       Mother first argues this case should have been dismissed because venue was
improper in Labette County as both Mother and G.R. lived in Shawnee County and G.R.
had been living in Shawnee County with her aunt immediately prior to the Labette

County Attorney filing this CINC action. The State argues venue in Labette County was
proper because G.R. was taken into custody in Labette County and was temporarily in the
custody of the Labette County authorities while she was placed with her aunt.

       Standard of Review

       Whether venue is proper is a legal question subject to de novo review. State v.

281 Kan. 256

, 264, 

130 P.3d 100

(2006), overruled on other grounds by State
v. Dunn, 

304 Kan. 773


375 P.3d 332



       "[I]n Kansas, statutes determine the proper venue for CINC proceedings." In re
A.M.W., No. 105,878, 

2011 WL 6311114

, at *1 (Kan. App. 2011) (unpublished opinion).
Venue in a CINC case is proper either "in the county of child's residence or in the county
where the child is found." K.S.A. 2020 Supp. 38-2204(a).

       The CINC petition was originally filed in Labette County. The Labette County
District Court issued a temporary order placing G.R. in the custody of the State with
Mother's consent and transferred the case to Shawnee County. Here, no one disputes that
Mother and G.R. resided in Shawnee County before Mother's arrest in Labette County.
Likewise, no one disputes that Mother continued to reside in Shawnee County or that
G.R. was placed with her aunt in Shawnee County. The issue revolves around one point
in time—March 25, 2019—the date the petition was filed. Mother argues venue in
Labette County was improper because G.R. was with her aunt in Shawnee County on that
date. The State argues Labette County temporarily placed G.R. with her aunt and retained
custody over G.R.

       We need not answer the question of whether venue was proper in Labette County
at the time of the filing of the CINC petition because, even if we assume that venue was
improper in Labette County, dismissal is not the appropriate remedy as Mother requests.
Transfer is the appropriate remedy, and that was done here. See Johnson v. Zmuda, 

Kan. App. 2d


2021 WL 300367

, at *4 (Kan. App. 2021) (transfer preferred over
dismissal as venue not question of subject matter jurisdiction). While venue questions
have typically been couched in terms of jurisdiction, see 

McElroy, 281 Kan. at 264

venue does not involve subject matter jurisdiction, which is the power of the court to hear
and decide the matter. See Kingsley v. Kansas Dept. of Revenue, 

288 Kan. 390

, Syl. ¶ 1,

204 P.3d 562

(2009) (subject matter jurisdiction defines court's ability to hear case).
Under K.S.A. 2020 Supp. 38-2203(c), a district court "acquires jurisdiction over a child
by the filing of a petition pursuant to this code." Moreover, the revised Kansas Code for
Care of Children, K.S.A. 2020 Supp. 38-2201 et seq., provides that any party or the
district court may transfer the case to the court of the county where the child is physically
present or where the parent or parents reside. K.S.A. 2020 Supp. 38-2204(b)(1), (2); see
also K.S.A. 60-611 (civil venue statute provides case filed in wrong district court "shall
be transferred to a court of proper jurisdiction of any county of proper venue."); Cansler
v. State, 

234 Kan. 554

, 573, 

675 P.2d 57

(1984) (improper venue results not "in dismissal
of the action, but merely transfer").

       Any venue issue was cured when the Labette County District Court granted
temporary custody to the State with Mother's consent and then transferred the case to the
Shawnee County District Court, finding Shawnee County was a better venue because
Shawnee County was G.R. and Mother's home county and G.R. was placed with a
relative living there. After the granting of temporary custody of G.R. to the State, all
other orders were issued from the Shawnee County District Court, including the
adjudication finding G.R. a CINC. Given Mother's position that Shawnee County is
where she resides and where G.R. is found, the Shawnee County District Court was a
proper venue and it had the jurisdiction and authority to issue its CINC finding.


       Mother argues G.R. was not a child in need of care on the date the CINC petition
was filed. Mother argues the district court improperly focused on her financial situation
and that the testimony shows she did well in keeping her employment; there was no
evidence her drug use affected her ability to raise G.R.; and she showed good parenting
skills at her supervised visitations. The State responds the evidence showed Mother never
provided information about stable housing; her testimony about her job and finances was
conflicting; and Mother's drug use did affect G.R. because Mother went to jail and was
facing more criminal charges.

       Standard of Review

       "When we review a district court's determination that a child is in need of care, we
determine whether, after review of all the evidence, viewed in the light most favorable to
the State, we are convinced that a rational fact-finder could have found it highly probable,
i.e., by clear and convincing evidence," that the child was a CINC. In re D.H., 57 Kan.
App. 2d 421, 430, 

453 P.3d 870

(2019). In reviewing a CINC finding for sufficient
evidence, we do not weigh conflicting evidence, address witness credibility, or
redetermine questions of fact. To the extent review requires the interpretation of statutes,
our review is de 

novo. 57 Kan. App. 2d at 430



       The district court found G.R. was a child in need of care under K.S.A. 2019 Supp.
38-2202(d)(1), meaning G.R. was less than 18 years of age at the time of the filing of the
petition who was "without adequate parental care, control or subsistence and the
condition is not due solely to the lack of financial means of the child's parents or other

custodian." The State must prove a child is in need of care by clear and convincing
evidence. K.S.A. 2020 Supp. 38-2250.

       Mother argues G.W. was not a CINC at the time the petition was filed. But Mother
looks toward the wrong timeframe. The plain language of K.S.A. 2020 Supp. 38-2202
does not require the district court to determine a child is in need of care "based only on
the circumstances that existed on the day the CINC petition was filed." In re 

D.H., 57
Kan. App. 2d at 428

. The CINC criterion provided in K.S.A. 2020 Supp. 38-2202(d)(1)
"is framed in the present tense so an adjudication decision under this subsection should
be limited to a view of the child's present circumstances at the time of the adjudication

hearing.” 57 Kan. App. 2d at 433


       The district court's reasons for determining G.R. was a CINC can be sorted into
four points: (1) Mother's legal trouble; (2) Mother's lack of stable housing; (3) Mother's
drug use; and (4) Mother's lack of stable income. All four are supported by sufficient

       1.     Mother's legal trouble

       First, the district court found Mother was unable to exercise adequate parental care
or control over G.R. because of her ongoing legal troubles. On the night Roberts took
G.R. into custody, Mother was arrested on three outstanding warrants. One of those— the
Jackson County warrant—was still unresolved on the day of the CINC adjudication. In
fact, law enforcement officers from Jackson County were at the Shawnee County
courthouse on the day of the adjudication to take Mother into custody if she could not pay
her fine. Mother found a friend from whom she could borrow the money, but the friend
had to leave the courthouse before giving Mother the money. At the time the district court
determined G.R. was a CINC, Mother's Jackson County case was still unresolved and she
was facing jail.

       Mother was also facing additional charges in a pending case in Topeka Municipal
Court, and the district court noted Mother had been incarcerated several times during the
pendency of this case, including the night G.R. was taken into custody, in September
2019, and in January 2020. Evidence in the record supports the district court's
determination that Mother had been imprisoned multiple times during the case and was in
danger of being placed in jail again.

       2.     Mother's lack of stable housing

       Second, the district court found Mother lacked stable housing. Huckabay testified
Mother had been staying off and on with different friends. Mother never provided an
address for where she was living. Mother claimed she had been living with Grandmother
for several months and Grandmother's house was a safe place for G.R. But Mother
admitted she never told anyone she was living with Grandmother. Mother said her living
with Grandmother was not set in stone because no adult wants to live with a parent and
she was worried about arguments with Grandmother. Mother also admitted she used a
sister's address as her mailing address. Mother's own testimony showed she lacked a
stable address. No evidence of stable housing exists in the record.

       3.     Mother's drug use

       Third, the district court was concerned with Mother's drug use. During this case,
Mother tested positive for cocaine, methamphetamine, and marijuana. Additionally,
Mother missed several drug test appointments.

       The district court recognized a causal connection is required between the drug use
and the ability to care for the child. The district court found Mother's drug use had led to
her incarceration and her inability to care for G.R. while incarcerated. One of the
warrants Mother was arrested for in Labette County was for a criminal case in Coffey

County where Mother was charged with possession of marijuana, possession of
paraphernalia, and operating a car without an interlock device. The new Topeka
Municipal Court case involved charges for unlawful possession of marijuana and
possession use of a stimulant, controlled substance, or drug paraphernalia, among other

       The district court also was concerned with Mother's refusal to seek drug treatment.
While Mother completed a drug assessment and inpatient drug treatment was
recommended, Mother chose not to go. Additionally, Mother did not visit G.R. from
October 2019 until late January 2020 because she did not have two consecutive clean
drug tests, which were required for visitation. At the time of the CINC adjudication,
Mother could not have visitation with G.R. because she lacked two consecutive clean
drug tests.

       4.     Mother's lack of stable income

       Finally, the district court discussed Mother's lack of stable income. The district
court did not find Mother's testimony that she had stable income to be credible. Mother
testified she lost her job after being arrested and she had worked different jobs during this
case. Huckabay testified she never received any pay stubs to verify Mother's

       Given the evidence in the record and viewing that evidence in the light most
favorable to the State, sufficient evidence exists from which a rational fact-finder could
find G.R. was a CINC.



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