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. Hockenbarger
Supreme Court Number 14442
P.O. Box 4944
Topeka, KS 66604-4944
785.554.0127
rachel.hockenbarger@outlook.com
Attorney for Appellant

TABLE OF CONTENTS
NATURE OF THE CASE
ISSUES ON APPEAL ..
STATEMENT OF FACTS ...
ARGUMENTS AND AUTHORITIES
I.

4
4
4
5

THE TRIAL COURT ERRED IN FINDING

THE RESPONDENT WAS A CHILD IN
NEED OF CARE

STANDARD OF APPELLATE REVIEW ..

In re L.C.W., 42 Kan. App. 2d 293, 211 P.3d 829 (2009)
In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008) ...

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5
5

ANALYSIS ..
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).
In re J.D.C., 284 Kan. 155, 159 P.3d 974 (2006)
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)..
Donald W. Hymer Jr., The Practitioners Guide to Kansas Family Law,
section 16.2 ..
K.S.A. 38-2202(d)(1), (2), (3) and (11) ...
K.S.A. 38-2231(b)(1) ...
K.S.A. 38-2232(a)(1) ...

II.

THE TRIAL COURT VIOLATED FATHERS

FOURTH AMENDMENT RIGHT AGAINST
UNREASONABLE SEARCH AND SEIZURE,
REGARDING DRUG TESTING .

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8

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STANDARD OF APPELLATE REVIEW ..

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

ANALYSIS ...
State ex rel Sec. Social and Rehabilitation Services v. Whaley,
237 P.3d 1272, 2010 Kan.App. Unpub. LEXIS 617
(Kan.Ct.App. 2010)
State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008) ...

15

14

17
18

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) ..
Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 658, 132 L.Ed.2d 564,
115 S.Ct. 2386 (1995) ...
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) .
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) .
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)..
In Interest of A.M., 281 P.3d 179, 2012 Kan.App. Unpub. LEXIS
570 (Kan.Ct.App. 2012).
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)..
CONCLUSION .

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19

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21
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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 FATHERS 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, fathers 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.) Mothers 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, fathers attorney withdrew his request after submitting to a UA,

leaving, and returning again. (I, 44.) On June 4, 2015, father filed a pro se Motion to Suppress
Evidence regarding the results of the preliminary UA he submitted to on May 13, 2015. (I, 58.)
Fathers 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 courts 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

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 parents 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 States

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 parents fundamental rights to his or her child. Id. See also, Donald W. Hymer
Jr., The Practitioners 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 fathers 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 childs 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 childs parents or other custodian; without the care or control
necessary for the childs 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 States 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.

The states 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 childs 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
grandmothers 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

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 fathers 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 officers 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 courts
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 its 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

repeated statements regarding alleged dental issues. (IV, 25-26, 31-32.) Fathers 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 fathers testimony, the trial court found that the
children might have seen an optometrist and they might have insurance, but if you dont 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 fathers 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 fathers home was not relevant since the
children had been voluntarily placed with the maternal relatives and were no longer residing in the
fathers 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 grandmothers home was not a safe and stable environment for
these children.

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 States case, and the respondent immediately returned to his
parents. Instead, the father was required to put on a defense to the states 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, fathers step-son. The allegations
are contained in States Exhibit 1, which is a letter written by 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 fathers testimony.
Father testified that he and his wife (the respondents mother) lived in Topeka from
November, 2014 through April, 2015, with their five children (the oldest child is fathers step-son).
(IV, 54-55.) Father worked full time at the VA Hospital in Topeka; mother did not work. (IV, 56,

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 mothers 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 familys 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
grandmothers 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 mothers
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.)
Fathers 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

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 fathers home that contradicted
the allegations in the Petition, and chronicled fathers 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 fathers 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 fathers 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-

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 FATHERS FOURTH AMENDMENT RIGHT

AGAINST UNREASONABLE SEARCH AND SEIZURE, REGARDING DRUG
TESTING.

STANDARD OF APPELLATE REVIEW

With regard to the fathers 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 fathers 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
[fathers] 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

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 fathers 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 fathers 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.) Fathers 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

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
fathers 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 disregard any evidence that suggest that he was under the influence or had
consumed those substances because theres no confirmation that he had, in fact, done so (IV, 212213), the trial court still utilized this unreliable evidence, and placed undue emphasis on it as
follows:
In addition, when [fathers attorney] asked that I exclude the positive test for
methamphetamine 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 fathers credibility
because I do indeed take that to be a positive test and his testimony is hes not
used any drugs, but he refused another test and its the I believe that its
highly probable that indeed Mr. Schwab has been using methamphetamine as
what has been stated in the petition, and so the Court will make the following
findings.

(IV, 216.) Father submits this was error by the trial court for at least these reasons: 1) it violates
fathers Fourth Amendment right against unreasonable search and seizure in general, and, a) more
specifically because there were no restrictions in the trial courts 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,

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 courts 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 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, 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 the
search 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.

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
parents privacy interestshome life and child rearing practicesbecome 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 States 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 drugtesting might well be an appropriate mechanism for ensuring that [grandfather]
remains an appropriate person to care for [the minor child] without
supervision, the district courts failure to enter any orders limiting the use or
dissemination of the drug-test results constitutes an invasion of [grandfathers]
privacy interests well beyond what would be required to meet the States
interest 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 law
enforcement 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 who
have 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 [grandfathers] Fourth Amendment rights.
Id. at 12-13. In this case, the violation of fathers 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.

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 anyones 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 peoples 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

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 courts conclusion terminating fathers 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 thatat least according to counseltesting 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 courts findings.
Those findings impact fathers 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 courts 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
courts 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 States argument and/or the trial courts 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

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 childs 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 childs 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 parents 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 childs welfare. It violates fathers
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.

CONCLUSION
The trial court erred in finding the respondent was a Child in Need of Care. Further, the trial
court violated fathers Fourth Amendment right against unreasonable search and seizure, regarding
drug testing. Accordingly, the trial courts decision should be reversed, and this case remanded to
the trial court for immediate dismissal.

Respectfully submitted,

____________________________________
Rachel I. Hockenbarger
Supreme Court Number 14442
Post Office Box 4944
Topeka, KS 66604-4944
785.554.0127
rachel.hockenbarger@outlook.com
Attorney for Appellant

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 bfields@rileycountyks.gov
Lora Ingel, via lora@oleenlawfirm.com
Miranda Johnson, via mjohnson@caffeypa.kscoxmail.com
Randy Debenham, via debenhamlaw@gmail.com

______________________________________
Rachel I. Hockenbarger, #14442
Attorney for Appellant

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)

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.

OPINION

PLEASE CONSULT THE KANSAS

RULES FOR CITATION OF UNPUBLISHED
OPINIONS.

MEMORANDUM OPINION

PUBLISHED IN TABLE FORMAT IN

THE PACIFIC REPORTER.
PRIOR HISTORY: [*1]
Appeal from Shawnee District
DANIEL L. MITCHELL, judge.
DISPOSITION:

Court;

Reversed.

COUNSEL: John Paul D. Washburn, of

Topeka, for appellant, natural father.
Jodi Litfin, assistant district attorney, and
Chadwick J. Taylor, district attorney, for
appellee.
JUDGES: Before PIERRON, P.J., GREEN
and LEBEN, JJ.
OPINION BY: PIERRON

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 insufficient
evidence 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. The
CINC 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.

"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 cigarette
smoke and soaked in baby
formula. Law enforcement made
contact with A.M. after mother
was 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 the
time with their daughter [T.T.].
"3. On 2/8/2011, Monica
Taylor of SRS interviewed
[grandparents]. The [grandparents]
noted their home had no water due
to frozen pipes and that it would
not be suitable for a child even if
they had the pipes fixed.
[Grandparents] reported they are
staying with their daughter, [T.T.].
SRS reports [T.T.] currently has
children in SRS custody pursuant
to case nos. 10JC424-427, and was
substantiated for abuse/neglect in
the past year. [Grandfather] stated
it would be hard for him and his
wife to care for A.M. but that if
SRS could help them fix their
house or get a new place to live
they would take her on a shortterm basis.
"4. On 2/8/2011, Ms. Taylor
interviewed the verbal respondents
who reported limited contact with
mother. [*3] The children reported
mother would not feed them and
that mother would use drugs.
"5. Ms. Taylor spoke with
Father. 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 being
held 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 due
solely 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 alleged
that 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 abuse
or 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 and
guidance necessary for the child[ren]'s wellbeing." The petition alleged an emergency
circumstance existed because
[*4] "The
child[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 the
home 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 the
order: "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

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. 381114(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 biological
father, 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 for
her needs [*5] than allowing her to be raised
by proxy by two persons serving lengthy prison
sentences." 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's
homicide arrest and the appalling condition of
A.M. when she was taken into police custody.
Social Worker Monica Taylor testified that
A.M. was released to the maternal
grandparents, but that situation did not appear
to be a permanent option based on their living
conditions. Taylor interviewed Father, his new
wife, and the other children in 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. 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. Taylor
indicated 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 the
test 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 at
that 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 Father
and Mother's divorce all the children eventually
had come to live with them. They also watched
A.M. regularly. She and Father had been
married for 3 years. She claimed that Father did
not drink and the only drug he took was
oxycodone for pain management. She testified
how 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] the
increasing 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 for
all five children. However, he claimed Taylor
was fine with the living arrangement because
the boys and girls could be in separate rooms
and 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 provide
financially 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.

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 and
the arguments of counsel to find
that the State has met its burden of
proof and that these children are, in
fact, children in need of care. I
simply can't get around the
positive UA that's been
[*8]
presented to the Court. And this
court 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 the
testimony
offered
by
the
gentleman who took the test and
then the gentleman who reviewed
it. My sense is that the State met its
burden.
"Court will adjudicate the
Respondent children and put the
children in need of a [sic] care."

Father appeals.
Father challenges the sufficiency of the
evidence supporting the trial court's decision
that the children were in need of care. Father
argues the trial court erred when it concluded
the State had met its burden of proof and
ignored 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. 382201 et seq.
"The petitioner must prove by clear and
convincing evidence [*9] that the child is a
child in need of care." K.S.A. 2011 Supp. 382250. When an appellate court reviews a
district court's determination 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, 187 P.3d 594
(2008). In making such a determination the
appellate court does not weigh conflicting
evidence, 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. 382202(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 the
condition 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. 382202(d).

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 make
decisions regarding the care, custody, and
control of his or her children as protected by
the 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 court
reversed that decision and held the State had
failed to prove by clear and convincing
evidence 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 timely
appealed and the proper [*11] standard of
review for the district court's review of the
magistrate's decision--both of which are of little
concern here. However, it is necessary to
extensively digest L.C.W. in order to determine
is 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 CINC
factors 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 lack
of financial means of the child's parents or
other custodian); K.S.A. 2011 Supp. 382202(d)(2) (without the care or control
necessary 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 unattended
when the parents were asleep
during the daytime hours while the
child was awake; (3) the parents
were not keeping appointments
with Dr. Elizabeth Koerner for
Kan-B-Healthy exams; (4) the
[*12] paternal grandparents found
methamphetamine in the parents'
car and believed that the parents
were using; (5) there was concern
that the parents were using
methamphetamine while the baby
was in their care and control; (6)
both mother and father were
arrested in Washington County;
and (7) neither parent was
working, and both had lost their
jobs in recent months." 42 Kan.
App. 2d at 299.

At the evidentiary hearing in L.C.W., the

grandmother described how they watched
L.C.W. regularly on the weekends, the parents
would 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 he
found a bag of white substance in Father's
wallet and upon police testing it tested positive
for methamphetamine. Father and mother were
arrested 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 stated
they never used methamphetamine while
L.C.W. was in their care. The GAL in L.C.W.

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.'s
doctor, however, was compelling
in support of a finding that the
child was not in need of care. The
doctor testified that she did not
have concern regarding L.C.W.'s
physical or mental well-being or
safety. She had no concern over
mother's ability to adequately
parent and wrote a letter on her
behalf, which stated that L.C.W.
had 'been brought to four well
child/Kan-B-Healthy visits since
[being] born, all while in the
custody of . . . mother. At these
appointments [L.C.W.] was clean,
well-nourished,
growing
appropriately,
and
no
developmental delays were noted.'
The doctor testified that she was
not concerned about L.C.W.
missing one visit. Mother then
testified that she would try to take
naps at the advice of her doctor
when L.C.W. was sleeping. She
also 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 in
closing states "This case is about
drug use." This Court respectfully
disagrees. The State has lost focus.
This case is about a child named
[L.C.W.], and about whether or not
the 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 of
the child.
"Just because parents use
drugs, or 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.
"What 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, [*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 there
has been an arbitrary disregard of
undisputed evidence, nor do we
conclude the ruling was the result
of bias, passion, or prejudice.

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, the
evidence established that the
parents did not leave the child
alone
(principally
due
to
arrangements with grandmother),
L.C.W.'s physician clearly had no
concern over mother's fitness as a
parent, and the physician testified
that L.C.W. was always 1 clean,
well-nourished,
growing
appropriately,
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 the
well-being of the child. 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, and
we do not perceive that the court
erred in concluding the State failed
to 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 concern
for 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 that
would rise to the level of the physician's
testimony 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 a
rational 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 the
consequences of drug users addicted to
methamphetamine. 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.
There was no evidence presented in this
case concerning any inadequate care and wellbeing of all the children while they [*17] were
in the Father's custody. We recognize the
terrible conditions the children were in while in
Mother's care. However, this case is not about a
single residence, but a dual residence as a result
of 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 which
methamphetamine
was
being
consumed. Methamphetamine is an
extremely serious and dangerous
drug that has serious consequences
for both the user and the individual
that are around the person who is
using methamphetamine. The
children were in an environment
that 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 test
and the children's welfare. In L.C.W., the court

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 delays
were 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 testified
she was hoping A.M. could be placed with
Father because he wanted all of the children to
live with him and she had no concerns with the
Father's custody until he tested positive for
methamphetamine.
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, which
have 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. Our
conclusion 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 or
her children, the evidence does not support a
CINC finding while in the Father's custody.
While drug use by parents will often support
removal 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 court
summarily 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 a
meaningful 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 to
establish 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 a
deprivation of a particular property
right or [*20] liberty interest is
determined by a balancing test,
weighing: (1) the individual
interest at stake; (2) the risk of
erroneous deprivation of the
interest through the procedures
used and the probable value, if
any, of additional or substitute
procedural safeguards; and (3) the
State's interest in the procedures
used, including the fiscal and
administrative burdens that any
additional 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 counsel
throughout the proceedings, received notice
and appeared at all proceedings, presented
evidence at trial, and was given the opportunity
to challenge the State's evidence that his

children were in need of care. We find no due

process violation in this case.
Reversed.

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. LEXIS 617

September 3, 2010, Opinion Filed

NOTICE:
NOT DESIGNATED FOR
PUBLICATION.

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

of Leavenworth, for appellee/cross-appellant.

PLEASE CONSULT THE KANSAS

RULES FOR CITATION OF UNPUBLISHED
OPINIONS.

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

CAPLINGER, JJ.

PUBLISHED IN TABLE FORMAT IN

THE PACIFIC REPORTER.

OPINION BY: LEBEN

OPINION

SUBSEQUENT HISTORY:
September 22, 2010.

As Amended

PRIOR HISTORY: [*1]

Appeal from Atchison District
ROBERT J. BEDNAR, judge.

Court;

DISPOSITION: Affirmed in part, reversed

in part, and remanded with directions.
COUNSEL: Gerald R. Kuckelman, of Garrity
& Kuckelman, of Atchison, for appellant/crossappellee.

MEMORANDUM OPINION
LEBEN, J.: Both parties in this
grandparent-visitation case have appealed the
district court's order, which granted the
grandfather unsupervised visitation with his
granddaughter over the father's objection but
also required ongoing drug-testing of the
grandfather over his objection. We have
concluded that the drug-testing order, which
was entered without any specific limits on how
testing results might be used or disseminated,
violated the grandfather's rights. We have also
concluded that the district court's grant of
unsupervised visitation to the grandfather was

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 appropriate
orders on both issues under [*2] the legal
guidance provided in this opinion.
Terry Whaley is the maternal grandfather of
J.W., whose mother has died. J.W. was only 1year-old when her mother died in September
2006. Before her mother's death, Terry had
substantial contact both with J.W. and her halfbrother, 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 court
found that Terry had a substantial relationship
with J.W. but approved Matt's visitation plan,
which gave Terry only a supervised visit with
J.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 weekend
day each month. The district court found that
Matt's limitation of Terry's contact with his
grandchild to only limited and supervised
visitation 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 schedule
for 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] he
claims that unsupervised visitation isn't in
J.W.'s best interests.
Our legislature has provided for
grandparent visitation in K.S.A. 38-129. Such
visitation 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 been
established." 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 in
controlling 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 generally
Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d
49, 120 S. Ct. 2054 (2000). When considering a
request for grandparent visitation, the district
court must presume that the parent is acting in
the child's best interests, and the parent's wishes
about what is appropriate grandparent visitation
may not be overridden unless they are
unreasonable. In re Cathey, 38 Kan. App. 2d

368, Syl. PP 3-4, 165 P.3d 310 (2007); [*5] In

re 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 and
established and substantial relationship
between child and grandparent--were present.
In addition, the district court found that Terry
had not used drugs in the intervening 2 years
since he had obtained supervised visitation.
Based on that, the district court found that
Matt'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. If
substantial evidence supports the district court's
findings, we must uphold them. Kansas Dept.
of SRS v. Paillet, 270 Kan. 646, 653, 16 P.3d
962 (2001). We then consider independently
whether those findings are sufficient to support
the district court's legal conclusion. In re
Creach, 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 role
in 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 with
J.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 having
a 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 for
limited and supervised visitation unreasonable,
that finding appears to have been based upon
these facts, which are supported by substantial
evidence.
Based on this evidence, we must consider
whether these findings were sufficient to
support the district court's conclusion that
Matt'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 evidence
suggested that continuing the supervisedvisitation 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 district
court could conclude that Matt's limited
visitation plan was unreasonable. The district
court 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 order
granting limited but unsupervised visitation,
even over Matt's objection, did not interfere
with his constitutional rights as a parent and
was authorized by K.S.A. 38-129.
As Entered, the District Court's Drug-Testing
Order Is Unlawful.
Terry has appealed the district court's order
that 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 drugtesting 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 that
the 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) ("The
civil litigation here concerns private litigants,
and Senechal points to no authority for his

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 one
ordered 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, which
recognizes that there may be some
circumstances that arise outside the lawenforcement 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 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 the
search in meeting those interests. 536 U.S. at
830-34.
Both parties presume in their briefs that the
legitimacy 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 apply
in 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 apply
to drug test based upon individual suspicion
rather than random or uniform selection
process; thus, reasonable suspicion must
support 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 a
child-custody or visitation case until the parties
have raised and properly briefed the argument.
We first consider the nature of the privacy
interest compromised by the search.
Pennsylvania's intermediate appellate court has
noted that parties involved in civil litigation
generally have a diminished expectation of
privacy with regard to matters related to the
litigation and that parents involved in childcustody disputes have "an even lower
reasonable expectation of privacy." Luminella,
814 A.2d at 722-23. As that court notes, matters
at "the very core" of a parent's privacy
interests--"home life and child rearing
practices"--become the central focus of these
lawsuits. 814 A.2d at 723. We agree that there
is necessarily some diminished expectation of
privacy
[*11] with respect to matters
reasonably related to child-custody and
visitation disputes. 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.
We next consider the intrusion being made,
including whether any procedures would limit
the use of information gained through the
intrusion. Random drug-testing certainly is a
substantial intrusion on Terry's privacy, and the

district court made no explicit limitations on

how the test results could be used. Matt argues
that the district court "did not direct Court
Services to forward the testing to the court, law
enforcement or any one else." Likewise,
however, the district court did not prohibit
either court staff or Matt from doing so.
The State's interest in this case is the
consideration of the best interests of the child, a
statutory factor for granting grandparent
visitation. The district court found that Terry
had an existing and substantial relationship
with J.W., but the court also obviously had at
least some lingering concern about possible
drug use that the court wanted to protect
against. Random drug-testing is one means
[*12] to protect against continued drug use,
whether by a person on parole or probation, a
person working at a jobsite, or a parent or
grandparent entrusted with a child's welfare.
When we balance these interests and
concerns, we conclude that while drug-testing
might well be an appropriate mechanism for
ensuring that Terry remains an appropriate
person to care for J.W. without supervision, the
district court's failure to enter any orders
limiting the use or dissemination of the drugtest results constitutes an invasion of Terry's
privacy interests well beyond what would be
required to meet the State's interest 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 law enforcement 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 who have a need to know"
and not given to law enforcement). [*13] In
the absence of any limitation on the use or
dissemination of the test results, we conclude

that the drug-testing requirement violates

Terry's Fourth Amendment rights.
CONCLUSION
The parties have appealed two aspects of a
single court order. Matt appealed the legality
and propriety of the district court's decision to
grant Terry unsupervised visitation over Matt's
objection; we have found that order appropriate
based on the district court's factual findings.
Terry has appealed the legality of the district
court's drug-testing order, and we have found
that the order as entered violated Terry's Fourth
Amendment Rights. So we have struck down
one part of a two-part court order.
We cannot say whether the district court
would have ordered unsupervised visitation if it
could not have a drug-testing order in place.
We also note that the district court could
potentially impose a drug-testing order in this
case under appropriate restrictions on the use
and dissemination of the test results.
We affirm the district court's order granting
unsupervised grandparent visitation to Terry.
We reverse the district court's order requiring
that Terry submit to random drug-testing.
Because the district court's [*14] order for
drug-testing may have been a necessary
condition to its award of unsupervised
visitation, however, we remand the case to the
district court with authority to enter whatever
modified orders it may deem advisable,
consistent with the legal rulings made in this
opinion.