In re M.S., 123824

Background:

Twin boys M.S. and C.S. removed in July 2017 after a June 2017 report of possible abuse, domestic-violence incident, observed injuries, and a missed drug test; DCF filed a CINC petition and placed the twins in foster care.
Mother had a history of multiple DCF investigations (2014–15), inconsistent compliance with drug testing, three inpatient treatment attempts, and positive drug tests through August 2019; she completed a 28-day program in Dec 2018–Jan 2019 and later received disability income.
The twins have significant behavioral and trauma-related needs, improved markedly in a stable foster home where they have lived since 2017 and have bonded with foster parents.
Mother had intermittent supervised visits, then none after May 2019; the twins’ therapist advised against resuming visits despite Mother later producing two clean UA tests and obtaining housing.
In December 2019 the State moved to terminate parental rights; after an evidentiary hearing, the district court found Mother unfit, unlikely to become fit in the foreseeable future, and terminated her parental rights in January 2021.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether clear and convincing evidence showed Mother was unfit (K.S.A. 38-2269)	Mother: Evidence of recent sobriety, housing, and income shows fitness; missed tests were due to frustration over denied visits.	State: Repeated positive and missed drug tests, failed compliance, and history show unfitness.	Court: Affirmed — extensive drug use and inconsistent compliance rendered Mother unfit by clear and convincing evidence.
Whether Mother's unfitness is likely to change in the foreseeable future	Mother: Recent negative tests and cessation of contact with Father show likely improvement.	State: Long pattern of relapse, missed tests, and delayed compliance predict continued unfitness from children's perspective.	Court: Affirmed — Mother’s past conduct supports finding unlikelihood of change in foreseeable future.
Whether termination is in the children’s best interests	Mother: Maintaining familial bond is in twins’ best interests given her progress.	State: Twins’ stability and progress in foster home mean removal would be harmful.	Court: Affirmed — stability and consistency in foster home outweigh reunification prospects; removal would risk regression.
Whether district court erred by misstating housing/income timing or relying on therapist’s communication to suspend visits	Mother: Court misstated timing of housing/income and therapist’s refusal prevented her reintegration.	State: Timing errors were not material; therapist’s concerns came after extended history of noncompliance.	Court: Affirmed — factual errors were immaterial to primary finding (drug use); therapist’s actions did not excuse prior noncompliance.

Key Cases Cited

Santosky v. Kramer, 455 U.S. 745 (1982) (parents have a constitutionally protected liberty interest in the parent–child relationship requiring heightened proof before termination)
In re B.D.-Y., 286 Kan. 686 (2008) (standard for appellate review of unfitness findings; consider evidence in light most favorable to State)
In re R.S., 50 Kan. App. 2d 1105 (2014) (review of best-interests determination; appellate deference to district court’s discretion)
State ex rel. Secretary of DCF v. Smith, 306 Kan. 40 (2017) (district court exceeds discretion when ruling no reasonable person could make it under the circumstances)
In re M.S., 56 Kan. App. 2d 1247 (2019) (child’s perspective shortens ‘foreseeable future’ assessment; past conduct predictive)
In re Price, 7 Kan. App. 2d 477 (1982) (past parental conduct is relevant to predicting future fitness)