Opinion
Nos. 109,513 109,514.
2013-08-16
In the Interest of B.G. (y.o.b.2008), a female, and J.G. (y.o.b.2012), a male.
Appeal from Riley District Court; John F. Bosch, Judge. Blake A. Robinson, of Manhattan, for appellant natural father. Lora Ingels, of Oleen Law Firm, of Manhattan, for appellant natural mother.
Appeal from Riley District Court; John F. Bosch, Judge.
Blake A. Robinson, of Manhattan, for appellant natural father. Lora Ingels, of Oleen Law Firm, of Manhattan, for appellant natural mother.
Bethany C. Fields, deputy county attorney, Miranda Johnson, guardian ad litem, and Barry Wilkerson, county attorney, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
S.M.G. (Mother) and J.S.G. (Father) appeal from the trial court's order that their minor children, B.G. (y.o.b.2008) and J.G. (y.o.b.2012) are children in need of care (CINC) as defined in K.S.A.2012 Supp. 38–2202(d). Specifically, the parents contend that the State failed to establish by clear and convincing evidence that Mother's alleged drug use had a negative effect on the children to justify the CINC adjudication. The parents also contend certain evidence of post-petition conduct was improperly admitted under K.S.A.2012 Supp. 38–2202(d). After thorough review of the record, we disagree with the parents' arguments and affirm the trial court's ruling.
The State filed a CINC petition and an application for an ex parte temporary custody order for B.G. and J.G. in Riley County District Court on December 31, 2012. The children were 4 years old and 9 months old, respectively, when the State filed the petition.
Mother was the primary caregiver of the children while Father worked full-time at Fort Riley. The evidence established there were a number of incidents between August 2012 and December 2012. The incidents indicated that Mother was overusing or misusing narcotic prescription medication. For instance, In August 2012 Mother was found wandering aimlessly around a building at Fort Riley and was unable to tell employees what she was doing; she appeared under the influence of medication when this happened. Due to concerns about Mother's behavior, family services were offered to the parents; they declined any assistance.
Mother's apparent drug problems continued after the August incident. Mother unsuccessfully attempted to obtain oxycodone pills from a local pharmacy and hospital. When she left the hospital, Mother was stopped by law enforcement. Because she appeared intoxicated and failed field sobriety tests, she was arrested for DUI. Her children were in the car when she was arrested. The Department for Children and Families (DCF) received a report shortly thereafter that Mother was abusing pain pills while caring for her children and was driving with them in her car while abusing the medication. In October 2012, Mother allegedly collapsed in the bathroom at home; 4–year–old B.G. was able to awaken Mother by banging on the door and splashing water in her face.
Mother's drug problems were not a new issue. Social workers had received other reports that Mother had been to the local hospital 14 times between March and September 2012 seeking pain medication; she also visited the hospital 23 times between June and December 2011 seeking pain medication. Mother described her status in the months before entering drug treatment as “a walking blackout.” She also admitted that she did not remember what happened while she was caring for her children.
Although Mother denied she misused or abused any substance, she agreed in November 2012 to go to inpatient drug treatment. The day before beginning inpatient treatment, Mother reported to the hospital claiming she needed hernia surgery. Although the surgery was postponed, the hospital gave Mother pain medication. Mother admitted taking Xanax and Klonopin immediately before entering drug treatment; the quantity of medication she consumed was not a normal dosage. Mother participated in inpatient treatment and was diagnosed with opiate addiction.
Mother was successfully discharged from inpatient treatment on December 5, 2012. Nevertheless, Mother was arrested on December 15, 2012, for DUI. This time, however, the children were not in the vehicle with her. Two days later, it was reported that Mother was at a pharmacy and appeared “high.” Mother demanded that the pharmacy refill her Klonopin prescription, even though it was too soon for a refill. DCF received reports that Mother had been in three automobile accidents in the previous 3 months. The children were in the vehicle with Mother in at least one of these accidents. Throughout the case, both Father and Mother denied she was abusing pain medication and told social workers that Mother was just fine, and they tended to blame others for their problems.
Less than a week after the CINC petition was filed, Mother told her psychiatrist that she found four Klonopin pills while cleaning her home and consumed them. Mother's attorney timely objected to this testimony, asserting it was beyond the scope of the CINC petition; the court overruled the objection. In response to this testimony, Mother elicited testimony confirming that Mother had completed urinanalysis (UA) testing after the case started and had tested negative.
The primary social worker admitted that she had seen the children only during the initial investigation in August 2012. The social worker was concerned with Mother's condition but determined the children were too young to interview. There had been no reports that the children were physically abused or lacked supervision. But based on Mother's actions regarding pain medication, the social worker concluded that the children lacked parental supervision.
After hearing the evidence, the court concluded that B.G. and J.G. were children in need of care and that the State had proved their status by clear and convincing evidence. The court noted Mother's opiate addiction and her DUI arrest after completing drug treatment. The court also cited Mother's admission to consuming Klonopin after leaving drug treatment. The court relied on the evidence that Mother was the primary caregiver for the children and that Mother's obvious drug dependence could not be cured overnight. Finally, the court found that both parents lacked insight into the seriousness of Mother's drug issues and that Father enabled Mother's problems. A journal entry formally finding the children were without adequate parental care, control, or subsistence was filed thereafter.
Under the Revised Kansas Code for Care of Children (RKCCC), K.S.A.2012 Supp. 38–2201 et seq. , a child under the age of 18 is a child in need of care if that child is “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.” K.S.A.2012 Supp. 38–2202(d)(1). When an appellate court reviews a trial court's decision that a child is in need of care, “it should 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 child was a CINC.” In re B.D.-Y ., 286 Kan. 686, 705–06, 187 P.3d 594 (2008).
In any proceeding under the RKCCC, the trial court faces an unenviable task: balancing the paramount concern for the safety and welfare of children with the parents' fundamental right to the care, custody, and control of their children. Cf.K.S.A.2012 Supp. 38–2201(b)(1), and In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007).
Mother and Father contend there is insufficient evidence to support a CINC finding because there was no evidence presented that B.G. or J.G. were mistreated or in any way harmed by the allegations relating to the parents. Absent evidence that the children were suffering, the parents contend there was no clear and convincing evidence to support the court's CINC finding.
As recently noted by this court, finding explicit guidance from previous cases addressing CINC determinations can be challenging in that the material facts often vary significantly between cases. For example, adequate care of a typical toddler is something different from adequate care of a typical teenager. Certainly, a younger child could be considered neglected within the meaning of K.S.A.2012 Supp. 38–2202(d)(3) if left alone for any extended period without parental care or control. See In re A.E.S., No. 108,584, 2013 WL 2992733, at *6 (Kan.App.2013) (unpublished opinion) (insufficient evidence to support CINC finding involving 14–year–old child), petition for review filed July 10, 2013.
In this case, the parents rely exclusively on In re L.C.W., 42 Kan.App.2d 293, 211 P.3d 829 (2009), and In re A.M., No. 106,890, 2012 WL 2925660 (Kan.App.2012) (unpublished opinion). In both those cases, the State alleged that one or both parents were using illegal drugs. In In re L.C.W., methamphetamine was found in the parents' car, they had been arrested, and the extended family believed the parents were using illegal drugs. Nevertheless, the 4–month–old child's pediatrician asserted the child was well-nourished, growing appropriately, and showed no developmental delays. 42 Kan.App.2d at 299–300. In the case of In re A.M., the children's mother was arrested on serious felony charges. The father, who had divorced mother and remarried, requested custody but tested positive for methamphetamine in his first drug screen. Still, the social worker testified she had no concerns about the welfare of the children staying in the father's home until there was a positive UA test. 2012 WL 2925660, at *1–2.
Yet, there are some significant factual and legal distinctions between the facts of this case and the facts in L.C.W. and A.M . First, the L.C.W. case was presented by the State's appeal from a trial court's order finding it had failed to prove L.C.W. was in need of care. Consequently, this court applied the negative finding standard holding that the court's decision could not be reversed “unless there was an arbitrary disregard of undisputed evidence or the district court's ruling was a result of bias, passion, or prejudice.” In re L.C.W., 42 Kan.App.2d at 302. Factually, although both the trial and appellate courts found the facts presented a close case, the trial court gave weight to the pediatrician's evidence of the child's good health and mother's appropriate actions during the checkups. 42 Kan.App.2d at 301. This court agreed that while the parents “may not be model parents,” the trial court properly focused on the well-being of the child. 42 Kan.App.2d at 302–03.
The facts in this case are also distinguishable from In re A.M. In that case, A.M. was processed through juvenile intake when her mother was arrested on homicide charges; A.M. was filthy and smelled strongly of cigarette smoke. 2012 WL 2925660, at *1–2. The father and mother had divorced, and apparently father was the primary residential parent of four other children who had little contact with their mother. Nevertheless, A.M. was born shortly after the couple's divorce, and A.M.'s paternity was in question early in the case. 2012 WL 2925660, at *1–2. After a paternity determination was made, Father was ordered to take a drug test before A.M. was placed with him; he tested positive for methamphetamine. All of the children were hen removed from his care.2012 WL 2925660, at *2. Father challenged the drug test. Moreover, he and his wife presented evidence about their home and the undisputed good care of the children pre-petition. The Court, based on the single positive UA, found the children in need of care. 2012 WL 2925660, at *3. This court reversed, noting that the only factor relied upon by the trial court was the one failed UA test and noted that there was no evidence of any inadequate care of the children. 2012 WL 2925660, at *6–7.
On the other hand, the totality of the evidence, when viewed in the light most favorable to the State, establishes sufficient evidence to uphold the trial court's CINC finding. The record shows that Mother has exhibited a consistent long-term pattern of overuse of pain medications. The evidence establishes that neither Mother nor Father recognized her use of pain medications had a negative result or her functioning which, as the primary caregiver, could not be ignored. Mother admitted that in the months before her inpatient treatment, she lived in a “walking blackout” and did not remember what happened while caring for her 4–year–old daughter and 9–month–old son. Clearly, living in a state of a “walking blackout” creates an evidentiary basis to find Mother was not providing adequate parental care or control over such young children, even absent evidence of physical abuse or mistreatment. Moreover, the children had been in at least one vehicle accident while Mother was driving and were present in a car when she was arrested for DUI.
Mother successfully completed a 30–day drug inpatient program, but her behavior immediately before and after her participation in the program evidences a continuing lack of insight of how her addiction to opiates has affected her ability to properly care for her children. For example, Mother was arrested for DUI less than 2 weeks after her release from treatment; the fact that the children were not in the vehicle when this arrest happened does little to lessen the seriousness of this relapse. Likewise, her consumption of Klonopin a few days after the CINC petition was filed similarly evidences that she does not recognize the significance of her addiction.
In this respect, the parents challenge the trial court's admission of and reliance on evidence about Mother's post-petition actions in consuming additional Klonopin. They argue that K.S.A.2012 Supp. 38–2202(d) precludes admission of post-petition conduct in determining whether a child is in need of care. They argue that because the statute defines a “child in need of care” to mean a minor person “at the time of filing of the petition” limits the evidence to actions before the petition is filed. See K.S.A.2012 Supp. 38–2202(d). Interpretation of a statute is a question of law over which an appellate court has unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
This court has previously rejected the parents' arguments. For example, in In re A.M., No. 108,012, 2013 WL 518019 (Kan.App.2013) (unpublished opinion), rev. denied ––– Kan –––– (June 19, 2013), the court held the language “at the time of filing of the petition” in K.S.A.2012 Supp. 38–2202(d) did not limit the temporal scope of the court's review at an adjudication hearing. 2013 WL 518019, at *3 (trial court incorrectly ruled that evidence had to relate to events close to the date of the petition; evidence of events several years prior to petition could be relevant), see also In re B.R.H., No. 104,574, 2011 WL 1344856, at *5 (Kan.App.2011) (unpublished opinion) (legislature's intent in amending 38–2202 [d] to add the phrase “at the time of filing of the petition” was designed to describe or modify the noun “person”). We find the rationale of these opinions persuasive. Consequently, we reject the parents' claims that evidence of events occurring after the CINC petition was filed is automatically barred from admission.
Similarly, the parents have failed to establish that the evidence of Mother's actions less than a week after the CINC petition was filed was irrelevant to the issues.
“ ‘When a party challenges the admission or exclusion of evidence on appeal, the first inquiry is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.’ [Citation omitted.]” State v. Richmond, 289 Kan. 419, 426, 212 P.3d 165 (2009).
In this case, the issue before the court was the welfare of the children and whether they were lacking in parental care and control when their primary caretaker had a history of abusing prescription pain medications. Although Mother had successfully completed inpatient drug treatment, she was arrested for DUI less than 2 weeks later. Approximately 2 weeks after her arrest, the State filed its CINC petition. Mother's admitted use of narcotic medication just days after the petition was filed is highly relevant to whether the CINC standards were met. Therefore, we determine that the trial court did not err in admitting or considering this evidence.
For these reasons, we find that the State presented sufficient evidence, when viewed in the light most favorable to the State, for a rational factfinder to have ruled that it was highly probable that B.G. and J.G. were in need of care as defined in the RKCCC.
Affirmed.