In re D.H. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,596
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of D.H.,
A Minor Child
MEMORANDUM OPINION
Appeal from Gove District Court; BLAKE A. BITTEL, judge. Opinion filed September 3, 2021.
Reversed and remanded with directions.
Carol M. Park, of Schwartz & Park, L.L.P. of Hays, for appellant natural mother.
Olavee F. Raub, of Raub & Zeigler, L.L.C. of Ellis, for appellee paternal grandfather.
Before HILL, P.J., ATCHESON and WARNER, JJ.
PER CURIAM: The Gove County District Court erred in adjudicating D.H. to be a
child in need of care in this private action her paternal grandfather filed days after F.M.,
the child's mother, attained an enforceable order from this court granting her legal and
physical custody of the child. This action allowed Grandfather to retain physical custody
of D.H. The evidence presented to the district court, however, failed to prove grounds
supporting the allegations in the petition. We, therefore, reverse the district court and
remand with directions to dismiss this case and to enter an order giving legal and physical
custody of D.H. to F.M.
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A SHORT FACTUAL AND PROCEDURAL HISTORY
As permitted by K.S.A. 2020 Supp. 38-2233(b), Grandfather filed his petition to
have D.H. declared a child in need of care on March 10, 2020—five days after the
mandate issued in In re D.H., 57 Kan. App. 2d 421, 453 P.3d 870 (2019), rev. denied 311
Kan. 1046 (2020) (D.H. I). The mandate would have required the Ellis County District
Court to divest the Kansas Department for Children and Families of legal custody of D.H.
and Grandfather of physical custody in favor of F.M. In D.H. I, we held that the Ellis
County District Court erroneously found D.H. to be a child in need of care and, thus,
wrongly prevented F.M. from parenting D.H. Under K.S.A. 2020 Supp. 38-2233(b),
"[a]ny individual" has the right to file a petition to have a child declared in need of care.
Grandfather exercised that statutory grant, compromising the fundamental constitutional
right of F.M. to parent D.H. See Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S.
Ct. 1388, 71 L. Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594(2008).
From the outset, the Gove County District Court permitted the Department for
Children and Families and Grandfather to continue in their custodial roles. The district
court conducted a temporary custody hearing on several nonconsecutive days in fall 2020
and retained the custody arrangements. With the agreement of the parties, the district
court considered that evidence along with additional testimony and exhibits at the
adjudication hearing in December. In early January 2021, the district court filed a journal
entry and order finding D.H. to be a child in need of care on two statutory grounds: She
lacked parental custody or control after March 5, 2019, through the time of the
adjudication hearing as provided in K.S.A. 2020 Supp. 38-2202(d)(2); and she had been
mentally or emotionally abused or neglected after June 22, 2018, as provided in K.S.A.
2020 Supp. 38-2202(d)(3). The district court imposed the time restrictions ostensibly to
confine the evidence to changed circumstances after D.H. I. Based on the district court's
order of adjudication, D.H. remained with Grandfather.
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F.M. has appealed the adjudication of D.H. as a child in need of care. See K.S.A.
2020 Supp. 38-2273(a) (interested party may appeal order of adjudication). Adjudication,
however, is an interim step in the legal process under the Revised Kansas Code for Care
of Children, K.S.A. 2020 Supp. 38-2201 et seq. Ultimately, the process typically
culminates either in family reintegration in conformity with a structured plan to
strengthen parenting skills and to address other impediments, such as mental health or
substance abuse issues, or with a court order terminating parental rights, allowing the
child to be permanently placed elsewhere.
During the adjudication hearing, the district court took note of D.H.'s childhood
from her birth in December 2007 and received evidence about her upbringing. That
history is detailed in D.H. I, and we do not recite it at length here. See 57 Kan. App. 2d at
422-26. We do mention several mileposts. The State first intervened when D.H. was
about five months old. Then, P.H., D.H.'s father, sought a judicial determination of his
paternity and in May 2009 obtained an order giving him primary residential custody of
the child with F.M. having parenting time. Meanwhile, F.M. had become pregnant and
moved to Granite City, Illinois, where she has family. F.M. gave birth to a special needs
son, who is D.H.'s half-sibling, and has continued to live in Granite City.
Going forward, F.M. had very limited contact with D.H. She was parenting her
son and had few opportunities to travel. Some evidence suggests P.H. impeded F.M.'s
efforts to communicate with or visit D.H. F.M. improved herself and her circumstances in
Illinois: She got a GED, had regular employment, maintained a residence, and sought
counseling. But F.M. had no in-person contact with D.H. between 2009 and 2015 and
visited her briefly in Kansas in 2015 and 2017.
P.H. committed suicide at home on June 20, 2018, while D.H. was there. D.H.
found her father's body. Because F.M. was living in Illinois, D.H. was immediately taken
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into protective custody and temporarily allowed to reside with Grandfather. The Ellis
County Attorney initiated a child in need of care action on the grounds F.M. had
abandoned D.H. and the child lacked suitable parental custody and control. As we have
said, the Ellis County District Court adjudicated D.H. to be in need of care, and we
reversed that ruling in D.H. I, requiring dismissal of that action, thereby eliminating any
legal impediment to F.M. assuming legal and physical custody of her daughter.
Grandfather's initiation of this case imposed a new legal impediment.
LEGAL ANALYSIS
In an adjudication hearing, the district court must find by clear and convincing
evidence that a child meets the statutory definition for being in need of care set out in
K.S.A. 2020 Supp. 38-2202(d). K.S.A. 2020 Supp. 38-2250 ("The petitioner must prove
by clear and convincing evidence that the child is a child in need of care."); In re B.D.-Y.,
286 Kan. at 697-98. That is a comparatively demanding level of proof exceeding the
common civil standard of more probably true than not but lower than the criminal
standard of beyond a reasonable doubt. See 286 Kan. 686, Syl. ¶ 2. An appellate court
reviewing an in-need-of-care adjudication must be convinced, based on the complete
evidentiary record viewed in favor of the prevailing party, that a rational fact-finder could
have viewed that determination to be "highly probable, i.e., [proved] by clear and
convincing evidence." 286 Kan. at 705. So, we must resolve any evidentiary conflicts in
Grandfather's favor and against F.M. In keeping with that charge, however, we examine
the record consistent with the time limits the district court applied to examine only new
circumstances following the proceedings in D.H. I. Although D.H.'s upbringing before
then affords context, we assess the evidence the district court formally considered in
finding the child to be in need of care.
The district court's journal entry and order identifies the specific statutory grounds
for the in-need-of-care finding and incorporates by reference its oral recitation at the
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conclusion of the adjudication hearing. The journal entry and order effectively provides
no amplification or elaboration of the bases for the decision. In its bench findings, the
district court largely recounted D.H.'s personal history and the progression of the earlier
judicial actions.
The oral and written findings do not demonstrate F.M. to be incapable of
providing parental care or control for D.H. Nor does the record contain evidence
sufficient to support such a finding under the clear and convincing standard. F.M. appears
to have ably parented D.H.'s half-brother and has adequate employment, housing, and
community and family support to take care of both children.
D.H. has been emotionally abused or neglected during her life and carries
psychological wounds as a result. Most notably, the circumstances of P.H.'s suicide were
emotionally abusive of her. The suicide occurred outside what the district court found to
be the relevant timeframe for this action. That, of course, doesn't erase its impact on D.H.
Two counselors testified during the adjudication proceedings. One had an ongoing
therapeutic relationship with D.H., and the other met primarily with F.M. and had a few
joint sessions with mother and daughter. D.H.'s counselor testified that the child reacted
negatively to the possibility of moving to Illinois to live with F.M. She showed signs of
heightened anxiety and stress and voiced reluctance and even opposition to living with
F.M. The counselor recommended against any immediate change in legal or physical
custody of D.H. The other counselor concluded that D.H. would adjust to the change
without any significant adverse effects.
Essentially, the evidence established that D.H. was understandably anxious and
perhaps even wary of moving to a new place to live with F.M., a parent with whom she
had only limited interactions during her lifetime. At the same time, however, a child's
apprehensions about living with an otherwise able parent do not render the child in need
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of care. Without something more, the evidence of emotional abuse or neglect failed to
satisfy the clear and convincing standard as we must view it on appeal and, thus, did not
support the district court's finding. If, after F.M. and D.H. are united, there is sufficient
friction within the family to indicate the child's health or safety may be at risk,
appropriate authorities in Illinois may intercede to address that actual circumstance. See
Juvenile Court Act of 1987, 705 Ill. Comp. Stat. § 405/1-1 et seq.; In re J.S., 442 Ill. Dec.
613, 629-30, 160 N.E.3d 475 (2020) (purpose of Act to advance "best interests and
safety" of child and to determine if child should be removed from parental custody "as a
ward of the court").
When the evidence fails to establish a child is in need of care, the district court
must dismiss the petition. K.S.A. 2020 Supp. 38-2251(a). We, therefore, reverse the
district court's order determining D.H. to be a child in need of care. We also remand to
the district court with directions to dismiss this action and enter appropriate orders giving
F.M. legal and physical custody of D.H.
Reversed and remanded with directions.
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