In re T.S.

74 P.3d 1009, 276 Kan. 282
Supreme Court of Kansas·Decided August 22, 2003·No. No. 89,077·Published·Cited by 7 cases

Opinion

The opinion of the court was delivered by

Brazil, S.J.:

This is a child in need of care case involving one of two children removed from the home of the natural mother (Mother) after the death of a third sibling. Mother of T.S., appeals from the district court’s order placing T.S. in the custody of his natural father, J.W. The State of Kansas and J.W. filed appellee briefs. The court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c)

We affirm.

Mother was the natural mother of three children, M.S., T.S., and D.S. in order of birth. Each child has a different father. J.W. is the natural father of T.S., who was born on June 19, 1998.

The night of April 4, 2001, Mother placed D.S., who was 14 months old, in her crib near a space heater. Mother took her prescription drug, Hydrocodone, before going to bed and did not check on D.S. during the night. The next morning, Mother found D.S. dead of hyperthermia. T.S. was 2 years old at the time.

On the day that D.S. was found dead, Mother’s residence was very cluttered and in extreme disarray. There were piles of clothing everywhere, food and debris on the floor, “junk and stuff laying around,” and feces on the bathroom floor. Mother was at a hospital in a hysterical condition and was unable to care for her surviving children.

Upon the State’s petitions, the district court ordered M.S. and T.S. to be placed in the protective custody of the Secretary of Social and Rehabilitation Services (SRS). At the detention hearing on April 13, 2001, J.W. appeared in person and by counsel. With the agreement of counsel, the district court ordered that the children were to remain in the custody of SRS, with a strong recommen[284] dation that M.S. be placed with the maternal grandmother, L.T., as soon as possible, and granted a request for T.S. to be placed with L.T. According to Mother, L.T. later was allowed to adopt M.S.

Adjudication first was scheduled for June 28-29, 2001. At Mother’s request, it was continued from June to November 2001. Then the district court continued it again until after disposition of the criminal charges against Mother.

Mother was charged with both involuntary manslaughter and endangering a child in the death of D.S. In October 2001, she stipulated to the circumstances of D.S.’s death and entered into a diversion agreement on the manslaughter count. She pled no contest to endangering a child, a misdemeanor, and was placed on 24 months’ probation. Mother was required by the terms of her probation and the diversion agreement to comply with any SRS reintegration plan adopted by the district court in the child in need of care case.

When the adjudication hearing in the child in need of care case was held in January 2002, all parties stipulated that T.S. was a child in need of care and agreed to proceed with disposition.

After hearing the testimony, the district court announced its ruling on the record. Finding that placing T.S. in Mother’s custody would not ensure the child’s well-being and that placing him with J.W. would do so, the district court terminated T.S.’s placement with SRS and ruled in J.W.’s favor. With regard to the governing statutes, the district court stated:

“Counsel, these statutes are troublesome. We talked about it at the pretrial. I run into it about every time we have a — a case in which parents contend over the custody of a child. . . .
“If you look at K.S.A. 38-1562, and 1563, and the statutes that precede them, you will find generally reference to reintegration. It does not say reintegration with somebody or to a specific place.
“The only place that becomes specific is K.S.A. 38-1565, which is actually the first statute that talks about if we have a disposition and the child is taken away from whatever, how do we integrate it — reintegrate the child into whatever. And that says reintegration into the family.
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[285] “The statute actually says, ‘If a child is placed outside the child’s home and no permanency plan is made a part of the record of the dispositional hearing, a written permanency plan shall be prepared which provides for reintegration of the child into the child’s family.’
“If I go back over to K.S.A. [3]8-1563, which is what I am authorized to do in the disposition hearing, I am authorized under (a) to place the child in the custody of the child’s parent.
“Now, the use of the singular there is once again misleading. And — and I wish the legislature would have found some other way to say it. But this child has more than one parent. He has two parents. So, one of the things I can do is retain jurisdiction . . . and place the child in the — in the custody of a parent. And I can do certain other things, but I don’t address that right now, I’d rather skip down to (d), where it says, ‘If the Court finds that placing’ — now incidentally, this (d) is the only time, if these — if these conditions are met, and only if these conditions are met, that the Court can place the child with the secretary of SRS. That’s what’s been drilled into our heads over the last 18 months about AFSA and so on and so forth.
“These are the conditions. 'If the Court finds that placing the child in the custody of a parent will not assure protection from physical, mental, et cetera, abuse,’ if I find that placing the child in the custody of a parent will not assure these things, then I can place the child in the custody of a — of the secretary.
“Well, I don’t find today that placing the child with a parent will not assure that child’s well-being, to sum up those list of words into one word, which I will say is well-being. I don’t find that placing the child with a parent will not assure well-being. Placing the child with a parent will assure us of well-being and that parent is the child’s father. And that’s what basically everybody has testified here to today, except for [Mother], who basically said that she didn’t think that [J.W.] was all that interested as much as his mother was in the child, but I don’t find that to be any warning sign about the well-being of the child if placed with [J.W.],
“So basically (d) will not allow me to place that child with the secretary. It’s just that simple. I will retain jurisdiction, and I will hear from counsel about the second part of (a), which says, the Court may prescribe certain things to assure proper care and protection of the child, including supervision of the child and the parent by a Court Services Officer, which is not going to be a viable alternative here; or may order the child and the parent to participate in programs operated by the secretary of another appropriate individual or agency. The terms and conditions may require any special treatment or care which the child needs for the child’s physical, mental or emotional health. So I need to hear from counsel and get some help along those lines.

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In re T.S., 74 P.3d 1009, 276 Kan. 282 (kan 2003).

74 P.3d 1009 (In re T.S.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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