Schwab Appeal

8/18/2019 Schwab Appeal

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No. 15-114272-A

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE INTEREST OF

C.S.

BRIEF OF APPELLANT

APPEAL FROM THE DISTRICT COURT OF RILEY COUNTY, KANSAS

HONORABLE JOHN F. BOSCH

DISTRICT COURT CASE NO. 2015-JC-30

Rachel I. HockenbargerSupreme Court Number 14442

P.O. Box 4944

Topeka, KS 66604-4944

[email protected]

Attorney for Appellant

mailto:[email protected]:[email protected]:[email protected]


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TABLE OF CONTENTS

NATURE OF THE CASE ………………………………………………… 4

ISSUES ON APPEAL …………………………………………………….. 4

STATEMENT OF FACTS ………………………………………………... 4ARGUMENTS AND AUTHORITIES …………………………………… 5

I. THE TRIAL COURT ERRED IN FINDING

THE RESPONDENT WAS A CHILD IN

NEED OF CARE ………………………………………… 5

STANDARD OF APPELLATE REVIEW ……………………………….. 5

In re L.C.W., 42 Kan. App. 2d 293, 211 P.3d 829 (2009) ………………… 5

In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008) …………………... 5

ANALYSIS ……………………………………………………………….. 6 In re L.B., 42 Kan. App. 2d 837, 841-842 (2009), review denied by

In the Interest of LB., 289 Kan. 1278, 2010 Kan. LEXIS 36 (2010). 6 In re J.D.C., 284 Kan. 155, 159 P.3d 974 (2006) ………………………… 6

Troxel v. Granville, 530 U.S. 57, 65-66, 147 L. Ed. 2d 49,

120 S. Ct. 2054 (2000) ……………………………………………. 6Sheppard v. Sheppard , 230 Kan. 146, 152, 630 P.2d 1121 (1981),

cert denied 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982).. 6

Donald W. Hymer Jr., The Practitioner’s Guide to Kansas Family Law,section 16.2 ……………………………………………………….. 7

K.S.A. 38-2202(d)(1), (2), (3) and (11) …………………………………... 7

K.S.A. 38-2231(b)(1) ……………………………………………………... 8K.S.A. 38-2232(a)(1) ……………………………………………………... 8

II. THE TRIAL COURT VIOLATED FATHER’S

FOURTH AMENDMENT RIGHT AGAINST

UNREASONABLE SEARCH AND SEIZURE,

REGARDING DRUG TESTING ………………………. 14

STANDARD OF APPELLATE REVIEW ……………………………….. 14 In re M.F., 290 Kan. 142, 150-151, 225 P.3d 1177 (2010) ………………. 14

In the Interest of K.M.H., 285 Kan. 53, 63, 169 P.3d 1025 (2007),

cert. denied, Hendrix v. Harrington, 555 U.S. 937, 129 S.Ct. 36,

172 L.Ed.2d 239 (2008) …………………………………………… 14

ANALYSIS ………………………………………………………………... 15

State ex rel Sec. Social and Rehabilitation Services v. Whaley,237 P.3d 1272, 2010 Kan.App. Unpub. LEXIS 617

(Kan.Ct.App. 2010) ………………………………………………… 17

State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008) …………... 18


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Board of Ed. Of Independent School Dist. No. 92 of PottawatomieCty. v. Earls, 536 U.S. 822, 829, 153 L.Ed.2d 735,

122 S.Ct. 2559 (2002)……………………………………………… 18

State v. Martinez, 276 Kan. 527, 534, 78 P.3d 769 (2003) ……………….. 18

Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 658, 132 L.Ed.2d 564,115 S.Ct. 2386 (1995) ……………………………………………... 19

Landon v. Kroll Laboratory Specialists, Inc., 91 A.D.3d 79,934 N.Y.S.2d 183, 2011 N.Y.App.Div. LEXIS 8394, at 18-20,

2011 NY Slip Op 8567 (S.Ct.NY 2011) ……………………………. 20

DeSalvo v. Department of Police, 141 So.3d 929, 932, 2014 L.App.

LEXIS 1409 (Ct.App.La. 2014), writ denied, DeSalvo v. Department of Police, 151 So.3d 602, 2014 La.

LEXIS 2344 (La. 2014) ……………………………………………. 20

In the Interest of D.H., 2009 UT App 32, 204 P.3d 201, 623 Utah Adv.

Rep. 25, 2009 Utah App. LEXIS 32 at 7-8 (Ct.App. Utah 2009)….. 20

In Interest of A.M., 281 P.3d 179, 2012 Kan.App. Unpub. LEXIS570 (Kan.Ct.App. 2012)……………………………………………. 21

In re Interest of Carrdale H. II, 18 Neb. App. 350, 781 N.W.2d 622,2010 Neb. App. LEXIS 67 (Neb.Ct.App. 2010)…………………….. 21

CONCLUSION ……………………………………………………………. 23


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NATURE OF THE CASE

Appellant, R.S. (hereinafter “father”) is the natural father of C.S. He appeals the decision of

the Riley County District Court, entered by the Honorable John F. Bosch, finding respondent to be a

Child in Need of Care, pursuant to K.S.A. 38-2273.

ISSUES ON APPEAL

I. THE TRIAL COURT ERRED IN FINDING RESPONDENT WAS A CHILD

IN NEED OF CARE.

II. THE TRIAL COURT VIOLATED FATHER’S FOURTH AMENDMENT

RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE,

REGARDING DRUG TESTING.

STATEMENT OF FACTS

On April 29, 2015, a Petition was filed by the State in Riley County District Court (Case No.

2015-JC-30), alleging respondent to be a Child in Need of Care as defined in K.S.A. 38-2202(d)(1),

(2), (3) and (11). (I, 1.) On that same date, an Order of Temporary Custody was entered, placing

the child in the custody of the Secretary of the Department for Children and Families (DCF). (I,

25.)

On May 4, 2015, father’s counsel filed a Motion for Re-Hearing on the Orders of Temporary

Custody entered on April 29, 2015, due to the fact the father was never notified of the initial

hearing. (I, 29.) Mother’s counsel also filed a Motion for Rehearing on the same date. (I, 31.)

Another Temporary Custody Hearing was held by the Court on May 13, 2015, at which time the

Court ordered the child to remain placed in the temporary custody of DCF for out of home

placement. (I, 44.) The Journal Entry from said hearing indicates both parents withdrew their

motion for rehearing; specifically, father ’s attorney withdrew his request after submitting to a UA,


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leaving, and returning again. (I, 44.) On June 4, 2015, father filed a pro se “Motion to Sup press

Evidence” regarding the results of the preliminary UA he submitted to on May 13, 2015. (I, 58.)

Father’s motion was heard by the Court on June 11, 2015, at which time it was denied. (I, 77.) The

Adjudication hearing was held on July 10, 2015. (IV.) The Court found the respondent to be a

Child in Need of Care pursuant to K.S.A. 38-2202(d)(1), (2), (3) and (11). (I, 80; IV, 218.) It is

from this ruling that father appeals the finding that his child was a Child in Need of Care. (I, 88.) A

Disposition Hearing was held herein on August 5, 2015. (V.) The Court found that the child had

been adjudicated, and that previous findings and orders shall remain in full force and effect. (I,

101.) Further Notice of Appeal was filed by the father regarding said hearing. (I, 111.)

ARGUMENTS AND AUTHORITIES

I. THE TRIAL COURT ERRED IN FINDING RESPONDENT WAS A CHILD IN

NEED OF CARE.

STANDARD OF APPELLATE REVIEW

The Kansas Court of Appeals, in In re L.C.W., 42 Kan. App. 2d 293, 211 P.3d 829 (2009),

indicated that the burden of proof in Child in Need of Care cases is on the petitioner to establish by

clear and convincing evidence that the Child is in Need of Care. Further, when the appellate Court

reviews a district court’s decision adjudicating a child to be a Child in Need of Care, they consider

“whether, after review of all the evidence, viewed in the light most favorable to the State, it is

convinced that a rational fact-finder could have found it highly probable, i.e., by clear and

convincing evidence, that child was a Child in Need of Care.” In re B.D.-Y., 286 Kan. 686, 705,

187 P.3d 594 (2008). In that case, the Court explained that “clear and convincing evidence”


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requires the factfinder to believe “that the truth of the facts asserted is highly probable.” 286 Kan.,

at 697.

During the adjudication trial herein, the Riley County District Court judge found that the

evidence is clear and convincing that the respondent was a Child in Need of Care pursuant to

K.S.A. 38-2202(d)(1), (2), (3) and (11). (IV, 218.) Father disagrees and submits that the evidence

was neither clear nor convincing. Specifically, father states that the findings by the trial court were

not supported by substantial competent evidence.

ANALYSIS

The trial court judge committed reversible error when he adjudicated the respondent as a

Child in Need of Care because based on the evidence presented at the Adjudication trial, no rational

fact-finder could have determined it was highly probable that the child was a Child in Need of Care.

Kansas Courts have recognized a parent’s fundamental right to be with and raise their child.

In re L.B., 42 Kan. App. 2d 837, 841-842 (2009), review denied by In the Interest of LB., 289 Kan.

1278, 2010 Kan. LWXIS 36 (2010) (citing In re J.D.C., 284 Kan. 155, 159 P.3d 974 (2006)). See

also Troxel v. Granville, 530 U.S. 57, 65-66, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000); Sheppard v.

Sheppard , 230 Kan. 146, 152, 630 P.2d 1121 (1981), cert denied 455 U.S. 919, 102 S.Ct. 1274, 71

L.Ed.2d 459 (1982). Here, father, as a parent to this respondent, should not have his fundamental

right to be with and raise his child infringed upon on an arbitrary basis.

Because a fundamental right is at stake, a “balancing test” in employed to determine whose

interest in the litigation trumps the others, whether that is the interest of the parent, child or the

State. In re L.B. recognizes a parent has a significant interest at stake in CINC proceedings; the

fundamental right to be with and raise their child. Concurrently, the child has a right to their

relationship with their parent. Id ., at 842. The Kansas legislature has also codified the State’s


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interest in K.S.A. 38-2202(b), which is to protect the ongoing physical, mental and emotional needs

of the child. Of significance, during this required balancing, “the scales of justice most often will

tip in favor of a parent’s fundamental rights to his or her child.” Id . See also, Donald W. Hymer

Jr., The Practitioner’s Guide to Kansas Family Law, section 16.2 (recognizing the preference for a

child to remain in their home as long as they are safe). Unfortunately, while issuing his decision

herein, the trial court judge failed to indicate whether he analyzed these competing interests. In

reading his oral decision, there is a distinct lack of any analysis that considers, let alone balances,

the father’s interests at all. (IV, 213-218.) Father submits that the failure to follow Kansas case law

and utilize the balancing test from L.B. in making a determination regarding the child’s status, is

reversible error.

Further, Child in Need of Care is a term of art and is defined in K.S.A. 38-2202(d). As it

pertains to this case, the State alleged the respondent was a Child in Need of Care pursuant to

K.S.A. 38-2202(d)(1), (2), (3) and (11). On April 29, 2015, the respondent was alleged by the State

to have been without adequate parental care, control or subsistence and it was not due solely to the

lack of financial means of the child’s parents or other custodian; without the care or control

necessary for the child’s physical, mental or emotional health; physically, mentally or emotional

abused or neglected or sexually abused; and, residing in the same residence with a sibling or another

person under 18 years of age who has been physically, mentally or emotionally abused or neglected,

or sexually abused. (I, 2.)

Despite the allegations in the State’s pleading, the evidence was that the needs of this child

(and his siblings residing in the same home) were being met by the father prior to the children being

sent to live with the maternal grandmother, who was then meeting their needs, with both the

parents’ permission, at the time the Petition was filed.


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The state’s only witness was the law enforcement officer who took the report and placed the

children in police protective custody. She placed them in police protective custody contrary to the

statutory requirements of K.S.A. 38-2231(b)(1) and K.S.A. 38-2232(a)(1). When law enforcement

encounters children and are faced with a decision whether to take them into police protective

custody (meaning they do not have a court order requiring them to take the children into custody),

they are authorized to take said children into custody pursuant to the law, to wit:

K.S.A.38-2231(b) A law enforcement officer shall take a child under 18 years of age into

custody when the officer: (1) Reasonably believes the child will be harmed if not immediately

removed from the place or residence where the child has been found.

K.S.A. 38-2232(a)(1) To the extent possible, when any law enforcement officer takes into

custody a child under the age of 18 years without a court order, the child shall forthwith be

delivered to the custody of the child’s parent or other custodian unless there are reasonable grounds

to believe that such action would not be in the best interest of the child.

With regard to the first statutory option, there is zero testimony in this record that the officer

reasonably believed the child would be harmed if she did not immediately remove him from his

grandmother ’s home where he was found. Indeed, the testimony is clear that the parents had

voluntarily placed all the children with the maternal grandmother following a break-in at their home

in Topeka which caused them to fear for the safety of their children. (IV, 132.) There is not even a

hint in this record that the maternal grandmother was not taking care of the respondent at the time

the law enforcement officer placed him in police protective custody. Parents have the right to make

decisions regarding the custody of their children, without any input from the government. In this

case, they made the decision to place their children with the maternal grandmother several days


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before law enforcement was called into their lives. When the law enforcement officer made the

decision to place these children in police protective custody, she did so contrary to the law.

With regard to the second statutory option, the law enforcement officer never observed the

parents’ home, nor did she observe the children in the parents’ home. Additionally, she made no

attempt to investigate the allegations or to determine whether there was a parent available prior to

placing the children into custody, as required by statute. (IV, 32-33.) There was no emergency that

called for immediate action and complete disregard of the law. (IV, 42.) The law enforcement

officer just heard the relatives’ version of past events, and placed the children in custody, ignoring

the statutory requirements placed upon her by the legislature to protect the parents’ fundamental

rights to custody of their children. (IV, 41.) These actions by the law enforcement officer were

contrary to her duty under K.S.A. 38-2232(a)(1).

Further, every word of the testimony presented by the State regarding the environment the

children were living in was hearsay. When father’s counsel made hearsay objections, the trial court

ruled that the testimony was not hearsay because it was not being offered to prove the truth of the

matters being asserted, only that it formed the basis for the law enforcement officer’s actions. (IV,

18, 21-22.) Presumably, then, if the testimony was being offered to prove the truth of the matter

asserted, it would be hearsay, and therefore, inadmissible evidence. Then, contrary to the court’s

ruling, the trial court made findings of fact based upon hearsay testimony. (IV, 217.) This is

erroneous and constitutes reversible error.

For example, the trial court found that the medical needs of the children were neglected by

the parents, stating “it’s obvious to this Court that one of the children at least had dental issues that

was not taken care of.” (IV, 217.) The only witness that testified regarding dental issues with the

children was the law enforcement officer, who did not observe any such dental issues, but merely


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repeated statements regarding alleged dental issues. (IV, 25-26, 31-32.) Father’s testimony – the

only admissible testimony on the issue - was that the medical needs of the children were met, that

they had medical insurance, and that their mother was taking them to appointments. (IV, 71-72.)

While there was no evidence presented to dispute father’s testimony, the trial court found that the

children “might have seen an optometrist” and they “might have insurance, but if you don’t use it,

what good is it.” (IV, 217.) There was absolutely no evidence to support these statements by the

trial court, as the only testimony presented to contradict the father’s was hearsay, and was not

offered to prove the truth of matters being asserted, as ruled by the trial court. Because there was no

evidence properly entered into this record for the trial court to make such a finding, the finding that

the medical needs of the children were neglected is not supported by substantial competent

evidence.

Additionally, at the time that the maternal relatives contacted law enforcement to make a

report regarding the care of the respondent and his siblings, all of the children had been residing

with maternal relatives for over a week, and were being taken care of. There is no dispute that the

parents had voluntarily placed the children with the maternal grandmother on or about April 19,

2015, and the State filed the Petition herein on April 29, 2015, 10 days later. Thus, at the time this

case was filed, what was going on, or not going on, in the father’s home was not relevant since the

children had been voluntarily placed with the maternal relatives and were no longer residing in the

father’s home. For this reason alone, the State failed to establish that at the time of the filing of this

case the children were not in a safe and stable environment where their needs were being met. No

one in the case claims the maternal grandmother’s home was not a safe and stable environment for

these children.


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In short, the State utterly failed to meet its burden of proof in this case to establish by clear

and convincing evidence that this child was a Child in Need of Care, as the only testimony

presented was the law enforcement officer telling the court that she took a report and placed the

children into police protective custody contrary to her statutory authority to do so. Further,

reasonable belief required for police protective custody does not rise to the level of clear and

convincing evidence. The State presented zero evidence that the allegations were true, only that

they were made. Such evidence would hardly constitute probable cause. This case should have

been dismissed at the close of the State’s case, and the respondent immediately returned to his

parents. Instead, the father was required to put on a defense to the state’s Petition, and to prove that

his children were not Children in Need of Care, effectively shifting the burden of proof from the

State to the father, contrary to the law.

The allegations in this case come from a 15-year-old boy, father’s step-son. The allegations

are contained in State’s Exhibit 1, which is a letter written b y this child and given to law

enforcement on April 27, 2015. (IV, 20.) The State did not call this child as a witness to establish

its case; however, father did call him to testify, and he testified he did not ever see his mother or

step-father using methamphetamine. (IV, 194.)

The father testified in detail regarding his care of his children in his home, which refuted and

disproved the allegations of the Petition. Further, he presented testimony from the paternal

grandmother, as well as from another of his children who was residing in the home during the

relevant time frame, both of whom corroborated father’s testimony.

Father testified that he and his wife (the respondent’s mother) lived in Topeka from

November, 2014 through April, 2015, with their five children (the oldest child is father’s step-son).

(IV, 54-55.) Father worked full time at the VA Hospital in Topeka; mother did not work. (IV, 56,


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72.) The children had medical, dental and eye insurance, and mother took them to their

appointments. (IV, 71-72.) Mother has mental health issues that sometimes cause her to have

violent episodes or outbursts. (IV, 53.) If mother was having such episodes, she would go stay at

her mother’s house and would not be around the children. (IV, 54.) There was a domestic violence

episode in November, 2014, that resulted in mother being arrested and prosecuted for domestic

violence and interference with a law enforcement officer. (IV, 27.) Mother home-schooled the

children until father enrolled them in Topeka schools in early 2015. (IV, 61-64.) In April, 2015,

someone broke into the family’s home. (IV, 86.) Father contacted the maternal grandmother to

come and get the kids because he feared for their safety due to the break-in. (IV, 132.) During the

time the children were with the maternal grandmother, their mother was at the maternal

grandmother’s home helping with their needs, and was available if any medical need arose. (IV,

140.) DCF came to the parents’ house three times in March, 2015 (due to calls made by mother’s

family) and never removed the children, and the subsequent investigation at that time determined all

allegations were unsubstantiated. (IV, 34, 41, 43, 58,138.) On April 27, 2015, when the Petition in

this case was filed, father still had a home that was clean and safe for his children; he was

employed; and, the children were enrolled in school. (IV, 141-142.)

The paternal grandmother testified that she was involved with the family during the relevant

time frame, and that several times she took the children to her house for visits while their father was

working. (IV, 161.) She further testified that she does not have any concerns with the children

going with their father. (IV, 159.)

Father’s older son who lived in the home for part of the relevant time frame testified

regarding the environment in his parents’ home while he lived there. (IV, 175-177.) He further

testified that after he moved out, his younger brother sent him a Facebook message, “mom said that


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dad is doing meth.” (IV, 179.) His brother said he never saw it, but “mom said.” (IV, 180.) His

brother never said he needed help, though the brothers have a close relationship. (IV, 181.) His

brother never expressed any concerns that he or his younger siblings were in danger. (IV, 181.)

Before there was a case, he never heard concern from his brother. (IV, 181.) He also testified that

in his interactions with his father, he did not have any concern that he was using drugs. (IV, 184.)

Despite detailed testimony regarding the events going on in father’s home that contradicted

the allegations in the Petition, and chronicled father’s efforts in keeping his children safe and stable;

and with no testimony to dispute any of that testimony, the trial court made findings that were

simply contrary to the evidence in this record. (IV, 217.)

The state and the trial court seemed to hang this entire case on the issue of father’s UA that

he submitted to at the second temporary custody hearing, on May 13, 2015. This issue is discussed

in detail under Issue II below. In short, father maintains that he has not used any illegal substances,

and that the UA result was wrong due to improper testing procedure and failure to send the

specimen for lab testing. Further, father objects to being required to produce a UA upon threat of

his children being removed from his custody, especially since there was no basis for such a

requirement, and there were no limits on the use of the information when the court ordered the same

(on one occasion out in an open public hallway). He asserts that to require him to do so is a

violation of his Fourth Amendment rights against unreasonable search and seizure. And, that it is a

violation of his substantive due process rights.

In this case, the trial judge erred when concluding that the State met its burden of proof,

when he ignored the overwhelming evidence presented at trial that the respondent was being cared

for in the father’s home, and that the parents had voluntarily placed the children with the maternal

grandmother where their needs were being met at the time this case was filed. No rational fact-


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finder could have determined it was highly probable that respondent was a Child in Need of Care in

this case.

II. THE TRIAL COURT VIOLATED FATHER’S FOURTH AMENDMENT RIGHT

AGAINST UNREASONABLE SEARCH AND SEIZURE, REGARDING DRUG

TESTING.

STANDARD OF APPELLATE REVIEW

With regard to the father’s submission that the trial court violated his Fourth Amendment

Constitutional right against unreasonable search and seizure, he submits that this Court can exercise

de novo review of that issue, and requests the same. The question of whether the drug test, in

general and as administered herein, violated father’s Fourth Amendment rights is a question of law,

requiring de novo review, see In re M.F., 290 Kan. 142, 150-151, 225 P.3d 1177 (2010). Also see

In the Interest of K.M.H., 285 Kan. 53, 63, 169 P.3d 1025 (2007), cert. denied, Hendrix v.

Harrington, 555 U.S. 937, 129 S.Ct. 36, 172 L.Ed.2d 239 (2008).

ANALYSIS

On May 13, 2015, father appeared at a Temporary Custody Hearing, and was required at the

time to submit to a urinalysis and breathalyzer test as a condition to regain custody of his minor

child. This requirement was based upon “the GAL or the county attorney, maybe both, that

[father’s] behavior was such in the hallway that there was concern that maybe [father] was under

the influence of either alcohol or drugs,” (VII, 5), even though father had just arrived in the hallway

30 seconds before he was ordered to take the test. (VII, 9.) When father (at a later hearing)

attempted to raise objections to the drug test, and to being denied an opportunity to be heard on the

temporary custody matter, the trial court agreed that he went into the hallway and ordered father to


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take the UA/BA tests, without any written order, and thus no limits were placed on how the drug

test results could be used. (VII, 5.)

The preliminary drug test done indicated the presence of methamphetamine, amphetamine

and morphine. Father denied he was positive for these drugs; noted that it was a strip test and not

ever laboratory tested; and gave a urinalysis that was not positive in a laboratory afterwards. (VII,

12.) Father requested a laboratory test, and when this was denied (and upon father’s attorney

indicating it would be difficult to obtain temporary custody with the preliminary results), father left

the courthouse without being further heard. The transcript of the temporary custody hearing reflects

that the father came and went and at one point conferred with his attorney. (VI, 4, 7-8.) This is

consistent with father’s later statements during a motions hearing that he was frustrated over the

events and did not want his attorney to waive his right to seek temporary custody. (VI, 8-9, 11-12.)

Ultimately the urine sample was discarded and no testing was done beyond the preliminary testing.

(I, 58.) Father’s position is that he never had a positive drug test for illicit drugs ; rather, any

preliminary results on a strip test were caused potentially by legal and prescribed substances which

only proper testing procedure could validate. (VII, 5.) When later father requested a new attorney,

and tried to assert his position about the testing, and why he felt he had no option of seeking

temporary custody, the trial court told him he did not have the right to appeal the order to take a

drug test; and, on the spot, the court ordered another UA and BA, which father refused, citing he

was not willingly, nor voluntarily waiving his Fourth Amendment protections, causing the court to

treat the refusal as positive. (VII, 9 [lines 13-16]; 11 [lines 17-25], 12-13, 14 [lines 17-25], 15.)

During the Adjudication Hearing of July 10, 2015, the State argued in final statements, that

father should be denied custody and care of respondent (at least in part) because “although Mr.

Schwab has testified that the last time he used drugs was in 2011, he did test positive for


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methamphetamines and amphetamines at Court, and then a month later refused to take a UA that the

Court had ordered him to do which the Court considers a positive.” (IV, 199-200.) Although

father’s attorney noted that the UA required at the temporary custody hearing “is not a presumptive

test even” and is only “a test to determine whether there are potential substances that may show a

positive result;” that “[o]nly upon laboratory testing can that be conclusively found that those

substances were, in fact, inside of his system;” and that “[t]hat test was not sent off for that;” and

asked the trial court to “disregar d any evidence that suggest that he was under the influence or had

consumed those substances because there’s no confirmation that he had, in fact, done so” (IV, 212-

213), the trial court still utilized this unreliable evidence, and placed undue emphasis on it as

follows:

In addition, when [father ’s attorney] asked that I exclude the positive test formethamphetamine that was obtained from the father when we were in court for

the protective custody hearing and I will not, I think the court must consider

that, and so that casts some real serious question on the father’s credibility because I do indeed take that to be a positive test and his testimony is he’s not

used any drugs, but he refused another test and it’s the – I believe that it’s

highly probable that indeed Mr. Schwab has been using methamphetamine aswhat has been stated in the petition, and so the Court will make the followingfindings.

(IV, 216.) Father submits this was error by the trial court for at least these reasons: 1) it violates

father’s Fourth Amendment right against unreasonable search and seizure in general, and, a) more

specifically because there were no restrictions in the trial court’s order on how the test results could

be used or disseminated, and b) there are/were no protocols for testing/results that ensure

authentication; and, 2) the trial court relied heavily upon the conclusion that father was using meth,

even though (aside from the lack of credible evidence this was true), there was absolutely no

evidence that such alleged use in any manner endangered respondent. Mere use, even if true,


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established or proven, is not sufficient to make Child in Need of Care finding, without further

specific proof that such alleged use was impacting the minor child.

In State ex rel Sec. Social and Rehabilitation Services v. Whaley, 237 P.3d 1272, 2010

Kan.App. Unpub. LEXIS 617 (Kan.Ct.App. 2010) (copy attached per Rule 7.04[g]) grandfather

appealed an order of the trial court requiring him to undergo ongoing drug testing as a condition to

unsupervised visits with his grandchild. “Both sides agree that the court’s drug-testing order is

subject to Fourth Amendment protection, and we accept their assumption.” 2010 Kan.App.Unpub.

LEXIS 617 at 7.

The Fourth Amendment prohibition on unreasonable searches has been defined

to mean that a warrantless search such as the one ordered here, is presumed toviolate the Fourth Amendment unless a recognized exception to that rule

applies. State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008). The

parties agree here that the exception that might apply is the special needsexception, which recognizes that there may be some circumstances that arise

outside the law-enforcement arena in which a governmental interest creates a

special need that makes the requirements of obtaining a warrant based on probable cause impractical. Board of Ed. Of Independent School Dist. No. 92

of Pottawatomie Cty. v. Earls, 536 U.S. 822, 829, 153 L.Ed.2d 735, 122 S.Ct.

2559 (2002); State v. Martinez, 276 Kan. 527, 534, 78 P.3d 769 (2003).

In Earls, the United States Supreme Court said that a balancing test determines

whether a special-needs search is permissible. Under that test, a court

examines (1) the nature of the privacy interest compromised by the search and(2) the character and nature of the intrusion, including whether any procedures

would limit the use of information gained through the intrusion. The court

then balances these considerations with the nature and immediacy of the

governmental interest used to justify the intrusion and the efficacy of thesearch in meeting those interests. 536 U.S. at 830-34.

Id. at 8. The Court went on to discuss whether special-needs would apply in situations where there

was cause to test, as opposed to a general practice of randomly or routinely testing. In this case,

father submits that there was neither cause nor a valid basis for randomly or routinely testing. See

id., at 9-10.


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Concerning the first element – the nature of the privacy interest involved – the Court held

that in civil litigation including cases involving child custody, “matters at ‘the very core’ of a

parent’s privacy interests—‘home life and child rearing practices’— become the central focus of

these lawsuits” so there is necessarily a diminished expectation privacy. “Even so, a parent or

grandparent certainly still retains some reasonable expectation of privacy, even if it is less than

would be expected in the absence of civil litigation.” Id. at 10-11.

The Court also held that random drug testing is one means to protect against continued drug

use, related to the State’s interest in consideration of the best interests of the child. Id. at 11-12.

However, the Court overturned the order requiring drug testing:

When we balance these interests and concerns, we conclude that while drug-

testing might well be an appropriate mechanism for ensuring that [grandfather]

remains an appropriate person to care for [the minor child] withoutsupervision, the district court’s failure to enter any orders limiting the use or

dissemination of the drug-test results constitutes an invasion of [grandfather’s]

privacy interests well beyond what would be required to meet the State’sinterest in this case. Cf. Earls, 536 U.S. at 833-34 (upholding special-needs

drug-testing of high-school students involved in competitive extracurricular

activities in part because the test results were not turned over to lawenforcement or used for additional disciplinary sanctions); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 658, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995)

(upholding special-needs drug-testing of high school athletes in part because

the test results were “disclosed only to a limited class of school personnel whohave a need to know” and not given to law enforcement). In the absence of

any limitation on the use or dissemination of the test results, we conclude that

the drug-testing requirement violates [grandfather’s] Fourth Amendment rights.

Id. at 12-13. In this case, the violation of father’s Fourth Amendment rights is further compounded

by 1) the lack of any emergency situation at the time of the temporary custody hearing, or at the

time the children were placed into custody; 2) the unreliability of the preliminary test and the lack

of a more specific and accurate test; and 3) as discussed further below, the lack of any evidence

suggesting that even if there was drug use, such alleged drug use had any impact on the respondent

minor child.


19/39

The lack of any evidence of immediate danger justifying imposing the drug testing

requirement is discussed at length in Issue I above, and is incorporated here in full as though set out

verbatim. When the police officer took the respondent into custody, there was no danger to the

child by anyone’s claim, as the child was living with his maternal grandparent and was in a safe and

stable environment. Further, as outlined above, there is no credible evidence in this case that the

respondent lacked proper care when with the father. The mere fact that a minor wrote an

unsubstantiated letter saying father was using drugs is not a sufficient basis, without anything more,

for requiring the drug test.

Concerning the inconclusiveness of the test, it is noteworthy that there are no protocols for

follow up testing after a preliminary test and that such was not required in this case. As this case

illustrates, “[t]he importance attached to the results of drug tests can hardly be overstated. Indeed,

the results of drug tests may form the basis for decisions affecting the very core of people’s lives.

… [A] positive toxicology result may bear heavily on child custody decisions … or contribute to

the complete termination of parental rights. *** [I]t is paramount that incentives exist to minimize

the risk of erroneous test results. …” Landon v. Kroll Laboratory Specialists, Inc., 91 A.D.3d 79,

934 N.Y.S.2d 183, 2011 N.Y.App.Div. LEXIS 8394, at 18-20, 2011 NY Slip Op 8567 (S.Ct.NY 2011) .

Nothing in this record indicates there are any standards for determining what levels of presence of

substances constitute a positive finding, or what follow up testing should be done and when. See,

for instance, DeSalvo v. Department of Police, 141 So.3d 929, 932, 2014 L.App. LEXIS 1409

(Ct.App.La. 2014), writ denied, DeSalvo v. Department of Police, 151 So.3d 602, 2014 La. LWXIS

2344 (La. 2014) (citing Louisiana statute which deals with drug testing procedures and standards,

requiring that drug testing shall only be performed at SAMHSA certified labs with cutoff limits in

accordance with SAMHSA guidelines when negative employment consequences apply). In In the


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Interest of D.H., 2009 UT App 32, 204 P.3d 201, 623 Utah Adv. Rep. 25, 2009 Utah App. LEXIS 32

at 7-8 (Ct.App. Utah 2009), while finding that there was considerable evidence otherwise

supporting the trial court’s conclusion terminating father’s parental rights, where tests were

considered with trace amounts of illegal drugs, the Court said: “We note that the issue is a troubling

one, given that — at least according to counsel — testing protocols are not standardized and what

levels of which substances will be regarded as ‘positive,’ ‘negative,’ or ‘trace’ varies from lab to

lab,” and noting that in any treatment plan testing requirements “ought to be specific about what the

test results must be and should avoid generalized terminology such as ‘positive’ and ‘negative.’”

Ibid . In this case, heavy reliance was placed on one preliminary test, and the alleged positive results

from that test (and a refused test) were relied upon heavily to justify the trial court’s findings.

Those findings impact father’s Fourth and Fourteenth Amendment rights, and as such should not be

made without clear protocols and standards, and without more than a preliminary inconclusive test.

Concerning the trial court’s reliance on the alleged positive drug test (including treating an

alleged refusal to test as a positive test) in finding respondent to be a Child in Need of Care, this is

an erroneous conclusion factually and legally. In Interest of A.M., 281 P.3d 179, 2012 Kan.App.

Unpub. LEXIS 570 (Kan.Ct.App. 2012) (copy attached per Rule 7.04[g]) , father challenged the trial

court’s ruling that his drug test unilaterally caused the children to be in need of care. The Court

agreed, relying upon In re L.C.W., 42 Kan.App. 2d 293, 211 P.3d 829 (2009). In both cases – A.M.

and L.C.W. – the focus of the State’s argument and/or the trial court’s conclusion was strictly upon

an alleged positive drug test, without any showing that the alleged drug use was impacting the

minor child/ren. And in both cases there was other compelling evidence that in spite of the alleged

drug use the minor child/ren was/were receiving proper care. Quoting from the trial court as quoted

by the Kansas Court of Appeals in L.C.W. and repeated in A.M.: “Just because parents use drugs, or


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have been convicted of using drugs, or drink too much alcohol, does not automatically mean the

child is likely to sustain harm, or the home is contrary to the child’s welfare. If that were the test,

then thousands of children would be removed from the home weekly.” 2012 Kan. Unpub. LEXIS

570 at 15. There, as here, “[w]hat the State failed to prove was some connection between the

parents’ alleged (not proven) drug use and the child’s welfare. The only evidence was that the child

is healthy, was not left alone, and was not abused physically, mentally or emotionally,” Ibid . Also:

“But in the case at bar, as was the case in L.C.W., a CINC case is not about the drug user, it is

focused entirely on the care and well-being of the children. This is where the trial court lost its

focus.” Id. at 16 . Also see In re Interest of Carrdale H. II, 18 Neb. App. 350, 781 N.W.2d 622,

2010 Neb. App. LEXIS 67 (Neb.Ct.App. 2010) (on de novo review adjudication order reversed

where State failed to show that parent’s use of alcohol and/or controlled substances placed juvenile

at risk of harm). Thus, even if the drug test was warranted; even if the drug test was administered

per some standards and protocols and thoroughness that ensured its accuracy; such alleged drug use

was not tied to any harm to the child or a home contrary to the child’s welfare. It violates father’s

Fourteenth Amendment rights (in addition to his Fourth Amendment rights) to use this inconclusive

drug test as a basis for a finding that respondent is a Child in Need of Care.


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CONCLUSION

The trial court erred in finding the respondent was a Child in Need of Care. Further, the trial

court violated father’s Fourth Amendment right against unreasonable search and seizure, regarding

drug testing. Accordingly, the trial court’s decision should be reversed, and this case remanded to

the trial court for immediate dismissal.

Respectfully submitted,

____________________________________

Rachel I. HockenbargerSupreme Court Number 14442

Post Office Box 4944

Topeka, KS 66604-4944785.554.0127

[email protected]


mailto:[email protected]:[email protected]:[email protected]


23/39

Certificate of Service:

I hereby certify that a copy of the foregoing BRIEF OF APPELLANT was served the 10th

day of December, 2015:

Bethany Fields, via [email protected]

Lora Ingel, via [email protected] Miranda Johnson, via [email protected]

Randy Debenham, via [email protected]

______________________________________Rachel I. Hockenbarger, #14442


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


24/39

Attached Opinions per Rule 7.04(g)

Interest of A.M., 281 P.3d 179, 2012 Kan.App. Unpub. LEXIS 570 (Kan.Ct.App. 2012)

State ex rel Sec. Social and Rehabilitation Services v. Whaley, 237 P.3d 1272, 2010 Kan.App.

Unpub. LEXIS 617 (Kan.Ct.App. 2010)


25/39

1 of 2 DOCUMENTS

IN THE INTEREST OF: A.M., DOB: 03/17/2010; M.C., DOB:

02/26/2005; G.C., DOB: 11/29/2008; H.C., DOB: 11/13/2007; and B.C.,

DOB: 12/25/2003, Children under the Age of 18.

No. 106,890

COURT OF APPEALS OF KANSAS

281 P.3d 179 ; 2012 Kan. App. Unpub. LEXIS 570

July 13, 2012, Opinion Filed

NOTICE: NOT DESIGNATED FOR

PUBLICATION.

PLEASE CONSULT THE KANSASRULES FOR CITATION OF UNPUBLISHED

OPINIONS.

PUBLISHED IN TABLE FORMAT IN

THE PACIFIC REPORTER.

PRIOR HISTORY: [*1]

Appeal from Shawnee District Court;

DANIEL L. MITCHELL, judge.

DISPOSITION: Reversed.

COUNSEL: John Paul D. Washburn, of

Topeka, for appellant, natural father.

Jodi Litfin, assistant district attorney, andChadwick J. Taylor, district attorney, for

appellee.

JUDGES: Before PIERRON, P.J., GREEN

and LEBEN, JJ.

OPINION BY: PIERRON

OPINION

MEMORANDUM OPINION

PIERRON, J.: Father appeals the trial court's

determination that his children A.M., M.C.,

G.C., H.C., and B.C., are children in need of

care (CINC). He argues there is insufficientevidence to support a CINC finding and also

that the trial court's ruling violates his due

process rights. We reverse.

The facts in this case are, for the most part,undisputed. Father basically challenges the trial

court's ruling that his drug use unilaterally

caused the children to be in need of care. TheCINC petition filed on February 9, 2011,

provided the following facts in support of the

petition:

"1. SRS reports [Mother] is the

mother of each respondent: SRS

reports [Father] is the father of the[M.C., G.C., H.C., and B.C.]. SRS

reports there is an issue of

paternity regarding respondent[A.M.]. Father and [S.M.] have

been identified as putative fathers.


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"2. On 2/7/2011, respondent

A.M. was brought to [juvenile

[*2] intake] by Topeka police

officer S. Dickey. Rebecca Wood

of [juvenile intake] noted A.M.arrived at intake very dirty,

smelling strongly of cigarettesmoke and soaked in baby

formula. Law enforcement made

contact with A.M. after motherwas arrested for second degree

murder. [Juvenile intake] identified

putative father [S.M.] as being

incarcerated. [Juvenile intake]released A.M. to grandparents . . . ,

who noted they were living at thetime with their daughter [T.T.].

"3. On 2/8/2011, MonicaTaylor of SRS interviewed

[grandparents]. The [grandparents]

noted their home had no water due

to frozen pipes and that it wouldnot be suitable for a child even if

they had the pipes fixed.

[Grandparents] reported they arestaying with their daughter, [T.T.].

SRS reports [T.T.] currently haschildren in SRS custody pursuant

to case nos. 10JC424-427, and wassubstantiated for abuse/neglect in

the past year. [Grandfather] stated

it would be hard for him and hiswife to care for A.M. but that if

SRS could help them fix their

house or get a new place to livethey would take her on a short-

term basis.

"4. On 2/8/2011, Ms. Taylor

interviewed the verbal respondents

who reported limited contact withmother. [*3] The children reported

mother would not feed them and

that mother would use drugs.

"5. Ms. Taylor spoke withFather. Father indicated he wanted

all respondents to stay with him.

Ms. Taylor requested father submit

to a UA. Father's UA returned

positive for methamphetamines.

"6. SRS reports mother is beingheld in jail. SRS also reports

[S.M.] is in [Shawnee County]

jail."

The CINC petition alleged the children

were without adequate parental care, control or

subsistence and the condition was not duesolely to the lack of financial means of the

child's parents or custodian. See K.S.A. 2011

Supp. 38-2202(d)(1). The petition also allegedthat the children were without the care or

control necessary for the children's physical,

mental, or emotional health. See 2011 Supp. K.S.A. 38-2202(d)(2). The petition requested

out-of-home placement because "Child[ren are]

at risk for physical, sexual or emotional abuseor neglect; Child[ren]'s residence lacks

stability; Child[ren]'s parent(s) not able to

adequately provide for child's physical needs;

Child[ren do] not have the structure andguidance necessary for the child[ren]'s well-

being." The petition alleged an emergency

circumstance existed because [*4] "Thechild[ren are ] in danger of being harmed or

injured."

The trial court entered an ex-parte order of

custody and removed all the children from thehome and placed them in SRS custody. The

emergency listed in the order was "The

child[ren are] in danger of being harmed or

injured." The trial court hand-wrote in theorder: "No parent able or willing to provide

safe & stable environment--[mother]

incarcerated--[Father] had positive UA--[S.M.]

in jail."

At the pretrial hearing on March 21, 2011,

Mother entered a no contest statement

concerning the petition. However, Father


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requested a trial. In April 2011, the trial court

took up the issue of A.M.'s paternity and

potential genetic testing. Father was presumed

to be A.M.'s natural father because she was

born within 300 days of the divorce. See K.S.A.2011 Supp. 23-2208(a)(1); K.S.A. 38-

1114(a)(1). The trial court held the presumption would stand and there would be

no genetic testing. The court stated that while

Father was unlikely to be A.M.'s biologicalfather, Father wanted the presumption to stand

and would provide care for A.M. and accept

her as his own. The court stated: "An intact

family group seems more likely to provide forher needs [*5] than allowing her to be raised

by proxy by two persons serving lengthy prisonsentences." Father was identified as the legal

father of A.M.

On August 23, 2011, the trial court held a

full trial on the CINC petition. Detective Scott

Dickey of the Topeka Police Department

testified about the situation of Mother'shomicide arrest and the appalling condition of

A.M. when she was taken into police custody.

Social Worker Monica Taylor testified thatA.M. was released to the maternal

grandparents, but that situation did not appearto be a permanent option based on their living

conditions. Taylor interviewed Father, his newwife, and the other children in Father's house.

Taylor reported that the children were doing

well, happy to be with Father, and were doingwell in school at the time. Taylor said the

children told her they had not seen Mother for

quite a while, but that when they did, she would put them in a back room or B.C. was stuck

watching the younger children.

Taylor testified they were hoping A.M.

could be placed with Father because he wanted

all of the children to live with him. Taylorindicated it was standard procedure to run a

background check and requested that Father

complete [*6] a urine test (UA) before any placement could occur. Father agreed to a UA,

and the results were positive for

methamphetamine. Employees from Valeo

testified about the results of Father's drug test

and the accuracy of the testing procedures.

Taylor testified that Father stated he took

Hydocodone for pain and that would cause thetest to be positive for opiates. However, the test

was negative for opiates. Taylor testified that pursuant to SRS guidelines, she had to file a

CINC petition due to father's positive drug test,

and she requested out-of-home placement atthat time.

On cross-examination, Taylor testified that

she had no concerns about the welfare of the

children staying in Father's house before the

UA test came back positive.

Father's new wife testified that after Fatherand Mother's divorce all the children eventually

had come to live with them. They also watched

A.M. regularly. She and Father had beenmarried for 3 years. She claimed that Father did

not drink and the only drug he took was

oxycodone for pain management. She testifiedhow well the children were doing in school and

how they were a family.

Father testified how all the children had

come to live with him because of [*7] theincreasing safety issues at Mother's house.Father acknowledged there was some issue

with A.M. coming to live with them

permanently because of inadequate space forall five children. However, he claimed Taylor

was fine with the living arrangement because

the boys and girls could be in separate roomsand Father and his wife could be in the living

room. Father testified the children's physical

and medical needs were being met, they were

doing well in school, and he could providefinancially for them. Father challenged the

accuracy of the drug test and denied using

methamphetamine. He testified that he obtained

a second test the following day on February 10,2011. However, no evidence of this test or the

results were presented at trial, nor is there any

such evidence in the record.


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The trial court granted the CINC petition

and found all the children to be in need of care.

The full extent of the trial judge's ruling is as

follows:

"The Court is inclined at this

time after hearing the evidence andthe arguments of counsel to find

that the State has met its burden of

proof and that these children are, infact, children in need of care. I

simply can't get around the

positive UA that's been [*8]

presented to the Court. And thiscourt has for 25 years held a

standard that if you're using drugs,you can't have your children,

period.

"Now, it's my understanding

that that's [ sic], as the testifying

father at this point, as to the

veracity of the test and thetestimony offered by the

gentleman who took the test and

then the gentleman who reviewedit. My sense is that the State met its

burden.

"Court will adjudicate the

Respondent children and put thechildren in need of a [ sic] care."

Father appeals.

Father challenges the sufficiency of theevidence supporting the trial court's decision

that the children were in need of care. Father

argues the trial court erred when it concludedthe State had met its burden of proof andignored the admittedly overwhelming evidence

presented at trial that all of the children's needs

were being met when they were in his custody.Father argues the trial court's rule of one

positive UA automatically necessitating a

CINC adjudication is contrary to the

established caselaw in Kansas and the

legislative intent for the Revised Kansas Code

for Care of Children. See K.S.A. 2011 Supp. 38-

2201 et seq.

"The petitioner must prove by clear andconvincing evidence [*9] that the child is a

child in need of care." K.S.A. 2011 Supp. 38-

2250. When an appellate court reviews adistrict court's determination that a child is in

need of care, "it should consider whether, after

review of all the evidence, viewed in the lightmost 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, 187 P.3d 594(2008). In making such a determination the

appellate court does not weigh conflictingevidence, pass on credibility of witnesses, or

redetermine questions of fact. 286 Kan. at 705.

We believe if the trial court's finding is one that

no reasonable person could arrive at that it can be reversed. See State v. Matlock, 233 Kan. 1,

5-6, 660 P.2d 945 (1983).

"Child in need of care" is a statutorily

defined term under K.S.A. 2011 Supp. 38-2202(d). The statute sets out 13 circumstances

which can lead to a finding that a child is in

need of care. Relevant to the facts in this case,a "child in need of care" is a child who:

"(1) Is without adequate parental

care, control or subsistence and thecondition is not due solely to the

[*10] lack of financial means of

the child's parents or other

custodian;

"(2) is without the care or

control necessary for the child's

physical, mental or emotional

health." K.S.A. 2011 Supp. 38-2202(d).


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The safety and welfare of a child are

paramount in all proceedings under the Revised

Kansas Code for Care of Children. K.S.A. 2011

Supp. 38-2201(b)(1). The countervailing

interest is a parent's fundamental right to makedecisions regarding the care, custody, and

control of his or her children as protected bythe Fourteenth Amendment to the United States

Constitution and also due process of law before

he or she is deprived of that right. In re J.D.C.,

284 Kan. 155, 166, 159 P.3d 974 (2007).

Father relies heavily on In re L.C.W., 42

Kan. App. 2d 293, 211 P.3d 829 (2009), where

a district magistrate judge found L.C.W. was a

child in need of care under K.S.A. 2008 Supp.

38-2202(d)(1) and (2), but the district courtreversed that decision and held the State had

failed to prove by clear and convincingevidence that L.C.W. was a child in need of

care. The Court of Appeals affirmed the district

court. 42 Kan. App. 2d at 302-03. Much of

L.C.W. concerns whether the State timelyappealed and the proper [*11] standard of

review for the district court's review of the

magistrate's decision--both of which are of littleconcern here. However, it is necessary to

extensively digest L.C.W. in order to determineis applicability.

In L.C.W., the State filed CINC proceedings based on the paternal grandmother's concern

that L.C.W.'s natural parents were not

providing a safe environment for 4-month-old

L.C.W. The State alleged the same two CINCfactors as were alleged in the case at bar. See

K.S.A. 2011 Supp. 38-2202(d)(1) (without

adequate parental care, control, or subsistence

and the condition was not due solely to the lackof financial means of the child's parents or

other custodian); K.S.A. 2011 Supp. 38-

2202(d)(2) (without the care or controlnecessary for the child's physical, mental, or

emotional health). After the temporary custody

hearing, the State placed L.C.W. with the paternal grandmother.

The specific allegations in L.C.W.'s CINC

petition were:

"(1) L.C.W. was always dirty;

(2) L.C.W. was often unattendedwhen the parents were asleep

during the daytime hours while thechild was awake; (3) the parents

were not keeping appointments

with Dr. Elizabeth Koerner forKan-B-Healthy exams; (4) the

[*12] paternal grandparents found

methamphetamine in the parents'

car and believed that the parentswere using; (5) there was concern

that the parents were usingmethamphetamine while the baby

was in their care and control; (6) both mother and father were

arrested in Washington County;

and (7) neither parent wasworking, and both had lost their

jobs in recent months." 42 Kan.

App. 2d at 299.

At the evidentiary hearing in L.C.W., thegrandmother described how they watched

L.C.W. regularly on the weekends, the parentswould sometimes be asleep in the middle of the

day with L.C.W. in the child swing, and mother

missed doctor appointments for L.C.W.Grandmother testified the parents were using

methamphetamine and were angry and violent

when they did. Father's brother testified hefound a bag of white substance in Father's

wallet and upon police testing it tested positive

for methamphetamine. Father and mother werearrested on various charges including possession of methamphetamine.

The father and mother in L.C.W. denied

using methamphetamine in the weeks leading

up to the filing of the CINC petition and statedthey never used methamphetamine while

L.C.W. was in their care. The GAL in L.C.W.


30/39

recommended [*13] an adjudication of CINC

based on a totality of the evidence, especially

the recent arrests. The critical piece of evidence

in L.C.W. was the testimony of L.C.W.'s

doctor. The court stated:

"The testimony from L.C.W.'sdoctor, however, was compelling

in support of a finding that the

child was not in need of care. Thedoctor testified that she did not

have concern regarding L.C.W.'s

physical or mental well-being or

safety. She had no concern overmother's ability to adequately

parent and wrote a letter on her behalf, which stated that L.C.W.

had 'been brought to four wellchild/Kan-B-Healthy visits since

[being] born, all while in the

custody of . . . mother. At theseappointments [L.C.W.] was clean,

well-nourished, growing

appropriately, and nodevelopmental delays were noted.'

The doctor testified that she was

not concerned about L.C.W.missing one visit. Mother thentestified that she would try to take

naps at the advice of her doctor

when L.C.W. was sleeping. Shealso testified that L.C.W. was not

always dirty, as alleged, and that

she had received instruction from

her physician about how often to bathe L.C.W." 42 Kan. App. 2d at

300.

In the case at bar, Father asks us to pay

special [*14] attention to the language of the

district court in L.C.W. in its reversal of the

magistrate judge:

"'The most compelling testimony

presented was that of Dr. Elizabeth

Koerner, the child's doctor. Dr.

Koerner stated she had no concern

regarding the child's physical or

mental well-being, and no concern

for [L.C.W.'s] safety. The State inclosing states "This case is about

drug use." This Court respectfullydisagrees. The State has lost focus.

This case is about a child named

[L.C.W.], and about whether or notthe child is likely to sustain harm if

not removed from the home, or

allowing the child to remain in the

home is contrary to the welfare ofthe child.

" Just because parents usedrugs, or have been convicted of

using drugs, or drink too much

alcohol, does not automaticallymean the child is likely to sustain

harm, or the home is contrary to

the child's welfare. If that were thetest, then thousands of children

would be removed from the home

weekly.

"What the State failed to provewas some connection between the

parents' alleged (not proven) drug

use and the child's welfare. Theonly evidence was that the child is

healthy, was not left alone, and

was not abused physically,

mentally, [*15] or emotionally."(Emphasis added.) 42 Kan. App.

2d at 301.

In affirming the district court, the L.C.W.

court stated:

"Here, we do not conclude therehas been an arbitrary disregard of

undisputed evidence, nor do we

conclude the ruling was the resultof bias, passion, or prejudice.


31/39

Moreover, given that this was a

very close case, we are convinced

that a rational factfinder could

have found by clear and

convincing evidence that L.C.W.was not a child in need of care. As

suggested by the district court, theevidence established that the

parents did not leave the child

alone (principally due toarrangements with grandmother),

L.C.W.'s physician clearly had no

concern over mother's fitness as a

parent, and the physician testifiedthat L.C.W. was always 1 clean,

well-nourished, growingappropriately, and no

developmental delays were noted.'L.C.W.'s parents may not be model

parents, but we agree with the

district court in focusing on thewell-being of the child. We are

convinced that a rational factfinder

could have found by clear andconvincing evidence that L.C.W.

was not a child in need of care, and

we do not perceive that the courterred in concluding the State failedto meet its burden." [*16] 42 Kan.

App. 2d at 302.

The State distinguishes L.C.W. by arguing

that the most compelling evidence came from

L.C.W.'s doctor who stated she had no concernfor the child's well-being and no concern for

the child's safety. The State argues there is no

similarly compelling testimony in this case thatwould rise to the level of the physician'stestimony in L.C.W. We do not agree.

Under our standard of review, we to review

all of the evidence, viewing it in the light most

favorable to the State, and deciding whether arational factfinder could find by clear and

convincing evidence that the children in this

case were in need of care. See In re B.D.-Y.,286 Kan. at 705. However, the only factor

discussed by the trial court was Father's

positive drug test for methamphetamine. In

many appellate records we have seen theconsequences of drug users addicted to

methamphetamine. But in the case at bar, aswas the case in L.C.W., a CINC case is not

about the drug user, it is focused entirely on the

care and well-being of the children. This iswhere the trial court lost its focus.

There was no evidence presented in this

case concerning any inadequate care and well-

being of all the children while they [*17] were

in the Father's custody. We recognize the

terrible conditions the children were in while inMother's care. However, this case is not about a

single residence, but a dual residence as a resultof a divorce. Father testified that he feared for

the safety of the children while in Mother's care

and ultimately tried to have them all stay with

him as much as possible.

The trial court is missing a connection. The

State makes the following unsubstantiated

argument which is the basis for the State and

the trial court's position:

"As a result, these children were

in a drug environment in whichmethamphetamine was being

consumed. Methamphetamine is an

extremely serious and dangerous

drug that has serious consequencesfor both the user and the individual

that are around the person who is

using methamphetamine. The

children were in an environmentthat was unsafe and unstable at the

time the petition was filed."

We do not doubt the Father's drug use, but

the State failed to prove any connection

between the Father's failure of a single drug testand the children's welfare. In L.C.W., the court


32/39

had the evidence of the child's doctor testifying

that she clearly had no concern over mother's

fitness [*18] as a parent and that L.C.W. was

always "'clean, well-nourished, growing

appropriately, and no developmental delayswere noted.'" 42 Kan. App. 2d at 302. Here, we

have the testimony of the social worker, Taylor,who interviewed Father, his new wife, and the

other children at Father's house. Taylor

reported that the children were doing well,happy to be with Father, and were doing well in

school at the time. Father and his wife also

testified to adequate conditions while in their

custody. We find it critical that Taylor testifiedshe was hoping A.M. could be placed with

Father because he wanted all of the children tolive with him and she had no concerns with the

Father's custody until he tested positive formethamphetamine.

We also acknowledge that the decision in

L.C.W. was affirming the trial court, while here

we are asked to reverse the trial court, whichhave different scopes of review.

This is a close case. We are not reweighing

the evidence, but instead examining this case as

a whole as did the court in L.C.W. Ourconclusion is that the State failed to establish

by clear and convincing evidence that the

children were in need of care under K.S.A. 2011

Supp. 38-2202(d)(1) and (2); [*19] see K.S.A.2011 Supp. 38-2250. There is no evidence the

safety and welfare of the children were

compromised while in Father's custody. See K.S.A. 2011 Supp. 38-2201(b)(1) (safety and

welfare of children are paramount). When we

examine this case against a parent's

fundamental right to custody and care for his orher children, the evidence does not support a

CINC finding while in the Father's custody.

While drug use by parents will often supportremoval of children from a drug abuser's home,

it does not here.

Last, Father argues he was not afforded

procedural due process when the trial courtsummarily ruled that his children were in need

of care because of his failed drug test. We

disagree.

The basic elements of procedural due

process are (1) notice and (2) an opportunity to

be heard at a meaningful time and in ameaningful manner. See Alliance Mortgage Co.

v. Pastine, 281 Kan. 1266, 1275, 136 P.3d 457

(2006).

"A due process violation exists

only when a claimant is able toestablish that he or she was denied

a specific procedural protection to

which he or she was entitled. The

type and quantity of procedural

protection that must accompany adeprivation of a particular property

right or [*20] liberty interest isdetermined by a balancing test,

weighing: (1) the individual

interest at stake; (2) the risk of

erroneous deprivation of theinterest through the procedures

used and the probable value, if

any, of additional or substitute procedural safeguards; and (3) the

State's interest in the proceduresused, including the fiscal and

administrative burdens that anyadditional or substitute procedures

would entail. [Citations omitted]."

In re J.D.C., 284 Kan. at 166-67 .

We do not dispute the gravity of this

situation and Father's fundamental right to

custody and care of his children. See In re J.D.C., 284 Kan. at 166 . However, he was

afforded full due process in arguing his case to

the court. Father was represented by counselthroughout the proceedings, received notice

and appeared at all proceedings, presented

evidence at trial, and was given the opportunityto challenge the State's evidence that his


33/39

children were in need of care. We find no due

process violation in this case.

Reversed.


34/39

6 of 10 DOCUMENTS

STATE OF KANSAS, ex rel. SEC. SOCIAL AND

REHABILITATION SERVICES and RACHAEL T. WHALEY (now

Deceased) and JENNA WHALEY, a Minor Child, by and Through

Next Friend, RACHAEL T. WHALEY, Plaintiffs, and TERRY

WHALEY (Grandfather), Appellee/Cross-appellant, v. MATT

YARMER, Appellant/Cross-appellee.

No. 102,885

COURT OF APPEALS OF KANSAS

237 P.3d 1272 ; 2010 Kan. App. Unpub. LEXI S 617

September 3, 2010, Opinion Filed

NOTICE: NOT DESIGNATED FOR

PUBLICATION.

PLEASE CONSULT THE KANSAS

RULES FOR CITATION OF UNPUBLISHEDOPINIONS.

PUBLISHED IN TABLE FORMAT IN

THE PACIFIC REPORTER.

SUBSEQUENT HISTORY: As Amended

September 22, 2010.

PRIOR HISTORY: [*1]

Appeal from Atchison District Court;

ROBERT J. BEDNAR, judge.

DISPOSITION: Affirmed in part, reversed

in part, and remanded with directions.

COUNSEL: Gerald R. Kuckelman, of Garrity

& Kuckelman, of Atchison, for appellant/cross-

appellee.

John F. Thompson, of John F. Thompson, P.C.,

of Leavenworth, for appellee/cross-appellant.

JUDGES: Before LEBEN, P.J., GREEN and

CAPLINGER, JJ.

OPINION BY: LEBEN

OPINION

MEMORANDUM OPINION

LEBEN, J.: Both parties in thisgrandparent-visitation case have appealed the

district court's order, which granted the

grandfather unsupervised visitation with his

granddaughter over the father's objection butalso required ongoing drug-testing of the

grandfather over his objection. We have

concluded that the drug-testing order, whichwas entered without any specific limits on how

testing results might be used or disseminated,

violated the grandfather's rights. We have alsoconcluded that the district court's grant of

unsupervised visitation to the grandfather was


35/39

proper. But we are unable to say whether the

district court would have granted unsupervised

visitation had it known that its drug-testing

order might be unlawful. We therefore remand

the case to the district court to enter appropriateorders on both issues under [*2] the legal

guidance provided in this opinion.

Terry Whaley is the maternal grandfather ofJ.W., whose mother has died. J.W. was only 1-

year-old when her mother died in September

2006. Before her mother's death, Terry hadsubstantial contact both with J.W. and her half-

brother, Ja. W. After her mother's death, Terry

cared for both J.W. and Ja. W. briefly until

J.W.'s father, Matt Yarmer, obtained custody of

J.W. about a month after the mother's death.Yarmer was not the father of Ja. W., and Terry

has adopted Ja. W.

At a court hearing in 2007, the district courtfound that Terry had a substantial relationship

with J.W. but approved Matt's visitation plan,

which gave Terry only a supervised visit withJ.W. for 2 hours once a month. In 2009, Terry

asked for unsupervised visitation. Matt opposed

unsupervised visitation both in 2007 and in

2009 based on Terry's known past drug usage:he admitted he had first smoked marijuana in

1970; he was convicted of two counts of sale of

marijuana in 1997; and he was convicted of possession of methamphetamine, possession of

drug paraphernalia, and possession of

alprazolam in 2004. Terry claimed that he had

stopped using drugs in 1998 and that his 2004[*3] convictions arose out of his holding drugs

for someone else. In 2009, Terry submitted

clean drug-test results and said he had

completed a drug-counseling program ordered by the court after his 2004 conviction.

The district court modified the visitation

order to allow Terry one unsupervised

visitation with J.W. for 4 hours on 1 weekendday each month. The district court found that

Matt's limitation of Terry's contact with his

grandchild to only limited and supervisedvisitation had become unreasonable in light of

Terry's lack of involvement with drugs in the

past 2 years. But the district court also ordered

that Terry be subjected to random drug-testing

by court services staff; if he failed a test,

visitation would revert back to the old schedulefor supervised visitation until Terry passed two

more tests.

The District Court's Order Granting Limited

but Unsupervised Visitation to Terry Was

Permissible.

Matt appeals the order granting

unsupervised visitation to Terry on two

grounds. First, he claims that the evidence

didn't show that his proposal for supervised

visitation was unreasonable so, as the parent,his right to control his child's upbringing

should have been respected. Second, [*4] heclaims that unsupervised visitation isn't in

J.W.'s best interests.

Our legislature has provided for

grandparent visitation in K.S.A. 38-129. Suchvisitation may be granted "upon a finding that

the visitation rights would be in the child's best

interests and when a substantial relationship

between the child and the grandparent has beenestablished." K.S.A. 38-129(a). These rights

extend to grandparents like Terry, whose

daughter, the child's mother, has died. K.S.A.

38-129(b).

In addition to these statutory provisions, a

fit parent has a fundamental and

constitutionally protected liberty interest incontrolling the upbringing of his or her child,

so there are constitutional limitations on

nonparent visitation that is ordered over the

objection of a child's parents. See generallyTroxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d49, 120 S. Ct. 2054 (2000). When considering a

request for grandparent visitation, the district

court must presume that the parent is acting inthe child's best interests, and the parent's wishes

about what is appropriate grandparent visitation

may not be overridden unless they areunreasonable. In re Cathey, 38 Kan. App. 2d


36/39

368, Syl. PP 3-4, 165 P.3d 310 (2007); [*5] Inre Creach, 37 Kan. App. 2d 613, Syl. PP 5, 7,

155 P.3d 719 (2007).

The district court found that the statutory

requirements--child's best interests andestablished and substantial relationship

between child and grandparent--were present.

In addition, the district court found that Terryhad not used drugs in the intervening 2 years

since he had obtained supervised visitation.

Based on that, the district court found thatMatt's proposal to continue only limited and

supervised visitation unreasonable. On appeal,

we must review the evidence in the light most

favorable to Terry since the district court,

which heard the evidence, ruled in his favor. Ifsubstantial evidence supports the district court's

findings, we must uphold them. Kansas Dept.

of SRS v. Paillet, 270 Kan. 646, 653, 16 P.3d962 (2001). We then consider independently

whether those findings are sufficient to support

the district court's legal conclusion. In reCreach, 37 Kan. App. 2d at 617-18.

Taking the evidence in the light most

favorable to Terry, he has been involved in

J.W.'s life since her birth: he took an active rolein visiting her before her mother died, and he

cared for her for about a month after that. The

district [*6] court found that Terry's visits withJ.W. had gone well for the past 2 years and that

no evidence suggested that he'd used drugs

during that time. Terry also testified that the

limited and supervised visitations were havinga negative effect both upon his relationship

with J.W. and on J.W.'s relationship with her

half-brother. Although the district court did not

state exactly why it found Matt's plan forlimited and supervised visitation unreasonable,

that finding appears to have been based upon

these facts, which are supported by substantialevidence.

Based on this evidence, we must consider

whether these findings were sufficient to

support the district court's conclusion thatMatt's visitation plan was unreasonable. Even

with the required presumption in favor of a

natural parent's visitation plan, we believe that

the district court could conclude on this

evidence that it was unreasonable. Visits had

gone well for the past 2 years, but the evidencesuggested that continuing the supervised-

visitation format on essentially a permanent basis was undermining the established

relationship between J.W. and Terry, as well as

the separate relationship between J.W. and Ja.W. In addition, given [*7] the lack of drug

usage for the past 2 years, the risk of Terry's

continued drug usage--especially with drug

testing--could be considered minimal. Thus,especially with the risk of drug usage lessened

through court-ordered drug testing, the districtcourt could conclude that Matt's limited

visitation plan was unreasonable. The districtcourt could also properly conclude that Terry's

visitation plan was in J.W.'s best interests on

the same basis. So the district court's ordergranting limited but unsupervised visitation,

even over Matt's objection, did not interfere

with his constitutional rights as a parent andwas authorized by K.S.A. 38-129.

As Entered, the District Court's Drug-TestingOrder Is Unlawful.

Terry has appealed the district court's orderthat he submit to random drug-testing as a

condition of his unsupervised visitation,

claiming that it violates the Fourth Amendment's prohibition on unreasonable

searches. Both sides agree that the court's drug-

testing order is subject to Fourth Amendment protection, and we accept their assumption.

Compare Luminella v. Marcocci, 2002 PA

Super 410, 814 A.2d 711, 720-22 (Pa. Super.2002) (assuming for purposes of analysis thatthe Fourth Amendment applied in [*8]

challenge to court-ordered drug-testing of

parent in custody case) with Doe v. Senechal,

431 Mass. 78, 84, 725 N.E.2d 225 (2000) ("Thecivil litigation here concerns private litigants,

and Senechal points to no authority for his


37/39

proposition that the Fourth Amendment has any

application in this context.").

The Fourth Amendment's prohibition on

unreasonable searches has been defined to

mean that a warrantless search, such as the oneordered here, is presumed to violate the Fourth

Amendment unless a recognized exception to

that rule applies. State v. Fitzgerald, 286 Kan.1124, 1127, 192 P.3d 171 (2008). The parties

agree here that the exception that might apply

is the special-needs exception, whichrecognizes that there may be some

circumstances that arise outside the law-

enforcement arena in which a governmental

interest creates a special need that makes the

requirements of obtaining a warrant based on probable cause impractical. Board of Ed. of

Independent School Dist. No. 92 of

Pottawatomie Cty. v. Earls, 536 U.S. 822, 829,153 L. Ed. 2d 735, 122 S. Ct. 2559 (2002);

State v. Martinez, 276 Kan. 527, 534, 78 P.3d

769 (2003).

In Earls, the United States Supreme Court

said that a balancing [*9] test determines

whether a special-needs search is permissible.

Under that test, a court examines (1) the natureof the privacy interest compromised by the

search and (2) the character and nature of the

intrusion, including whether any procedureswould limit the use of information gained

through the intrusion. The court then balances

these considerations with the nature and

immediacy of the governmental interest used to justify the intrusion and the efficacy of the

search in meeting those interests. 536 U.S. at

830-34.

Both parties presume in their briefs that thelegitimacy of the drug-testing order in this case

is governed by the special-needs balancing test

announced in Earls. An argument could be

made that the special-needs test does not applyin a case like this one, in which there is

individualized suspicion that Terry might be

using drugs based on his own prior drug use.See Dubbs v. Head Start, Inc., 336 F.3d 1194,

1213 (10th Cir. 2003) (special-needs cases

involve a "lack of individualized suspicion of

wrongdoing, and [a] concomitant lack of

individualized stigma based on such

suspicion"); Benavidez v. City of Albuquerque,101 F.3d 620, 623-24 (10th Cir. 1996) (finding

that [*10] special-needs doctrine did not applyto drug test based upon individual suspicion

rather than random or uniform selection

process; thus, reasonable suspicion mustsupport the search). But the parties have

assumed that the Earls balancing test applies,

and we will determine the propriety of the

drug-testing order based on that assumption.We reserve consideration of whether that test

properly applies to a drug-testing order in achild-custody

Documents

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