NOT DESIGNATED FOR PUBLICATION
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of I.J.,
A Minor Child.
Appeal from Geary District Court; COURTNEY D. BOEHM, judge. Opinion filed March 19, 2021.
Anita Settle Kemp, of Wichita, for appellant natural mother.
Michelle L. Brown, assistant county attorney, for appellee.
Before POWELL, P.J., GREEN and HILL, JJ.
PER CURIAM: The sad truth is that drug abuse often harms people other than the
drug user. This is such a case. Mother's drug abuse meant that her baby would be living
in a foster home and she would be living behind bars. Because Mother used
methamphetamine while pregnant, I.J., the subject of this child in need of care case, was
born with methamphetamine in the child's system. Then, after birth the child suffered
withdrawal symptoms from the drugs. I.J. has remained in foster care since birth.
Meanwhile, Mother, the appellant, has been incarcerated either in jail or in prison the
entire time the child has been alive.
Mother appeals the termination of her parental rights to her child, contending the
court erred when it found her unfit to parent and that her unfitness was unlikely to change
in the foreseeable future. We find no error in this record and affirm.
Officers seek Mother for violating her probation.
On August 1, 2018, officers checked on Mother at a residence in Junction City.
• was nine months pregnant;
• was on probation;
• had tested positive for marijuana, cocaine, and methamphetamine during
her pregnancy; and
• had outstanding felony warrants for her arrest.
When Captain Patricia Giordano approached Mother in her bedroom, Mother said
she had not smoked methamphetamine for six days and she did not want to go to jail.
Officers searched Mother's residence and located a glass pipe that contained
methamphetamine residue and a baggie that contained cocaine.
The captain noticed Mother's ankles were very swollen and told her she needed to
go the hospital to be evaluated. Mother gave birth to I.J. in the hospital later that day. I.J.
positive for methamphetamine and began going through withdrawal symptoms.
After Mother gave birth, Captain Giordano arrested Mother on the charge of child
endangerment for using methamphetamine while pregnant. I.J. was placed in protective
custody and later adjudicated to be a child in need of care.
Mother goes to prison, and I.J. remains a ward of the court.
For the charge of using drugs while pregnant, Mother pled no contest to
aggravated child endangerment. And to resolve some earlier charges, Mother pled no
contest to possession of cocaine. In addition, her probation was revoked in a prior case
involving convictions for trafficking in contraband (hydrocodone) in a correctional
institution, possession of cocaine, and endangering a child. In total, Mother received a
35-month prison sentence.
Mother testified about her progress while in prison.
Mother has done well in prison. While incarcerated, Mother completed several
classes in the areas of domestic violence, parenting, strengthening families, and cognitive
behavior. She attended NA meetings and was in a substance abuse program. She
remained sober and abstained from drug use since before I.J. was born. Mother had
diagnoses of PTSD, bipolar disorder, and anxiety. She was on medication and attending
mental health counseling and therapy in prison.
About a year after I.J. was born, the State moved to terminate Mother's parental
rights. At the time of the severance hearing, Mother had five months remaining on her
prison sentence. I.J. was 15 months old. He was thriving and had been in the same foster
placement for the past 10 months.
Mother's case manager testified that to be reintegrated with I.J., Mother would
need to maintain a home, provide for I.J., attend NA meetings, maintain her sobriety, and
complete a mental health intake. The case manager could not give an estimate on how
long it would take, but she said it would take "a while."
Mother testified candidly about her personal history of drug abuse and criminal
convictions. She started using marijuana when she was 14 years old. She had a cocaine
habit at age 20. She had been to rehab before. She had a prior conviction for distribution
of cocaine in Colorado. Her last job was in 2017.
But she was hopeful for the future. Mother testified that she had made plans for
when she was released from prison. She had been accepted into three sobriety homes for
mothers with children. She would go to NA classes and submit to drug testing as part of
living in a sobriety home. Her pastor planned to pay her first month's rent. She had jobs
lined up at a meat-packing plant and a moving company. To her credit, Mother
successfully completed residential treatment at the Women's Recovery Center in Wichita
while in custody pending resolution of her criminal cases.
At the time of the termination hearing, Mother did not have any family in Kansas.
She has five other children—ages three, and 13 through16, all of whom live with their
fathers in Colorado. She had voluntarily placed them with their fathers after getting into
trouble in Kansas. Before being incarcerated, she would visit them. She testified she
maintained a relationship with them, calling every day.
Mother wanted to start supervised in-person visits with I.J. right away while in
prison. She had a Skype visit with I.J. that went well a week before the hearing. She sent
a card once.
The guardian ad litem argued that it was not in I.J.'s best interests to wait longer
Time was an important factor for the district court in deciding to terminate
Mother's parental rights. The court found Mother was unfit under K.S.A. 2019 Supp. 38-
2269(b)(1)-(5) by reason of mental illness and substance abuse that rendered her unable
to care for I.J.'s needs. Her use of illegal drugs while pregnant was both abusive in nature
and was physical abuse of I.J. She had been convicted of a felony and was in prison. And
the court considered her long history of substance abuse and incarceration.
The court found reintegration was impossible in the foreseeable future because
Mother would need to show stability for a long period of time including refraining from
drug use, obtaining a mental health treatment, and establishing a stable and safe home for
I.J. Nothing in the record suggests when such desirable events would occur. Mother's
case manager testified that it would take "a while." The court found it was not in the best
interests of I.J. to delay permanency for such an indeterminable period.
To us, Mother argues the district court's findings that she was unfit and that her
unfitness was unlikely to change in the foreseeable future were not supported by clear
and convincing evidence.
The rules that guide us are well established.
The Legislature has enacted a system of laws that ensure that such important
questions as the termination of parental rights are decided as fairly as possible. A parent
has a fundamental liberty interest protected by the Fourteenth Amendment to the United
States Constitution to decide on the care, custody, and control of the parent's child.
Before a parent can be deprived of the right to the custody, care, and control of the child,
the parent is entitled to due process of law. In re Adoption of A.A.T.,
287 Kan. 590
196 P.3d 1180
When a child has been adjudicated to be a child in need of care, a court may
terminate parental rights "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." K.S.A. 2019 Supp. 38-2269(a).
That statute also lists nonexclusive factors a court shall consider in determining
unfitness. K.S.A. 2019 Supp. 38-2269(b). The court must also consider a separate list of
nonexclusive factors when a child is not in the parent's physical custody. K.S.A. 2019
Supp. 38-2269(c). Any one of the factors in K.S.A. 2019 Supp. 38-2269(b) or (c) may,
but does not necessarily, establish grounds for termination of parental rights. K.S.A. 2019
Upon making 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. 2019 Supp. 38-2269(g)(1). In making such a decision, the court shall give
primary consideration to the physical, mental, and emotional needs of the child. K.S.A.
2019 Supp. 38-2269(g)(1).
On appeal, we review a district court's termination of parental rights and "'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 right should be terminated."' In re K.H.,
56 Kan. App. 2d 1135
444 P.3d 354
(2019). In reviewing a district court's decision
based on any clear and convincing evidence standard, an "appellate court does not weigh
conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact."
In re B.D.-Y.,
286 Kan. 686
187 P.3d 594
We review Mother's arguments and the record.
Despite being convicted of aggravated child endangerment, Mother argues that
drug use during pregnancy is not "abusive [in] nature" or "physical . . . abuse" under
K.S.A. 2019 Supp. 38-2269(b)(2), We need not decide this question because the
Legislature has made it clear that K.S.A. 2019 Supp. 38-2269(b) is not an exclusive list
of factors the district court may consider. That fine legal point is insignificant given this
There is no question that Mother was, at the time of the termination hearing, unfit
because she was in prison for multiple felonies. See K.S.A. 2019 Supp. 38-2269(b)(5).
And this court has held in In re M.B.,
39 Kan. App. 2d 31
176 P.3d 977
that "because incarceration is one of the express factors to be considered by the court . . .
incarceration alone could be sufficient evidence to support a conclusion of unfitness."
Simply put, Mother could not care for I.J. while in prison.
And Mother has a long history of drug abuse and mental health issues that the
district court found rendered her now unable to care for her child. See K.S.A. 2019 Supp.
38-2269(b)(1), (3). Those findings were supported by clear and convincing evidence at
the termination hearing, including Mother's own testimony. Mother used marijuana,
cocaine, and methamphetamine during her pregnancy. Though she was not using drugs
and was getting mental health treatment in prison, Mother had not shown that she could
maintain a stable drug-free home outside the structured environment of rehab and prison.
She had a long history of substance abuse and criminal offenses including endangering a
different child. Mother had not completed a mental health assessment to evaluate how
those concerns would affect her parenting. Her case manager testified she could not be
immediately reintegrated with I.J. once she left prison because of all those concerns. That
testimony was undisputed. Mother was unfit.
The question here is whether Mother would remain unfit in the foreseeable future.
Mother would likely be released from prison five months after the termination hearing.
She argues that though I.J. was too young to establish a relationship with her, she took
every available opportunity to address her addiction and mental health issues and to learn
new parenting skills while in prison. She argues she could be reunited with I.J. in the
foreseeable future. Mother could provide the court with no evidence about when she
could provide a home for her child and be able to fulfill her role as mother. Neither could
any of the other witnesses. How long would it take, if ever? How long should a court wait
in deciding that time is up?
There is no set amount of time that constitutes the "foreseeable future." Kansas
measures the foreseeable future from the perspective of a child. K.S.A. 2019 Supp. 38-
2201(b)(4). Children and adults have different perceptions of time. Children have the
right to permanency in a timeframe reasonable to them. For children, a month or a year
seems considerably longer than it would for an adult. The court may look to a parent's
past conduct as indicative of future behavior. In re K.L.B.,
56 Kan. App. 2d 429
431 P.3d 883
(2018). Past cases provide us with some examples for comparison.
Imprisonment of a parent may justify termination of parental rights when:
• The parent has been incarcerated most of the child's life;
• the incarceration has impeded the development of a relationship between
the parent and child; and
• delaying the proceedings to give the parent time to complete his or her
prison sentence and to show sobriety, stable housing, and employment
outside prison would not serve the best interests of the child.
See In re
K.L.B., 56 Kan. App. 2d at 447-48
; In re M.H.,
50 Kan. App. 2d 1162
337 P.3d 711
In one case, this court found a father's incarceration for another seven months
exceeded the foreseeable future when he had been incarcerated for a substantial portion
of the children's lives and he had made almost no effort to establish or maintain a
relationship with the children during his incarceration. In re M.B.,
39 Kan. App. 2d 31
176 P.3d 977
(2008). In another case, to determine a mother would not be fit in
the foreseeable future, this court considered a case manager's testimony that after leaving
court-ordered rehab, the mother would need to maintain sobriety, housing, and
employment for a period of time before reintegration was possible. In re K.L.B., 56 Kan.
App. 2d at 447.
Here, Mother had been incarcerated for all of I.J.'s life. There was sparse evidence
of a relationship between I.J. and Mother. This was largely because I.J. was only 15
months old at the time of the termination hearing, precluding meaningful communication.
The only evidence of how long this process of rehabilitation would take was the case
manager's speculation that it would take "a while." Thus, the court was confronted with
the very important question of how long "a while" should I.J. wait?
While Mother has taken many positive steps forward, she has been limited by her
circumstances. We recognize that those circumstances were caused by Mother's
numerous criminal activities while she was pregnant with I.J.
Considering Mother's lengthy historical pattern of substance abuse and
incarceration, the district court found:
"I understand the release from DOC is going to be in April. But there would have
to be an extended period of time to show stability because of the history of the substance
abuse, the need for mental health treatment, the need to establish a stable and safe home
for [I.J.]. And the Court doesn't believe it's in [the child's] best interest[s] to delay
permanency for such a significant period of time. [the child has] already been in . . . out-
of-home custody for over 12 months, 15 months since [the child's] birth."
The court considered the passage of time from I.J.'s perspective. This perspective
is what the statutes and caselaw compel a court to use.
We conclude that a rational fact-finder could have found it highly probable that
Mother would not be fit in the foreseeable future and that delaying permanency would
not be in I.J.'s best interests.