In re A.H. ( 2014 )

No. 111,231
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of A.H.,
A Minor Child Under the Age of Eighteen.
SYLLABUS BY THE COURT
1.
The State must prove a child is in need of care by clear and convincing evidence.
2.
When an appellate court reviews a trial 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.
3.
In making this determination, an appellate court does not weigh conflicting
evidence, pass on the credibility of witnesses, or redetermine questions of fact.
4.
K.S.A. 2013 Supp. 38-2202(d)(11) adds to the list of children in need of care those
children who have been residing in the same residence with a sibling who has been
physically, mentally, or emotionally abused or neglected, or sexually abused.
5.
The Revised Kansas Code for Care of Children shall be liberally construed to
carry out the policies of the State which are to consider the safety and welfare of a child
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to be paramount in all proceedings under the code; make the ongoing physical, mental,
and emotional needs of the child decisive considerations in all proceedings under the
code; and, provide for the protection of children who have been subject to physical,
mental, or emotional abuse or neglect.
Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed September 26,
2014. Affirmed.
Dennis J. Stanchik, of Olathe, for appellant father.
Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
HILL, J.: In this case we must decide if there is sufficient evidence to support the
district court's finding that a 5-month-old girl, A.H., was a child in need of care as
defined by law. The public policy of this state is found in K.S.A. 2013 Supp. 38-
2202(d)(11), which states that the definition of a child in need of care includes a child
who "has been residing in the same residence with a sibling . . . who has been physically,
mentally or emotionally abused or neglected, or sexually abused."
Because the district court found this girl's brother, W.H., to be a child in need of
care for witnessing domestic abuse and this finding is undisputed by the father, and W.H.
and his sister have been living in the same home, we hold the district court properly
found A.H. to be a child in need of care. We affirm the decision.
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Background
Out of concern that A.H.'s father and mother were not adequately providing for the
protection of their 5-month-old daughter due, in part, to A.H.'s continued exposure to the
alleged domestic violence between her parents, the State filed a child in need of care
petition in April 2013. A.H.'s brother, W.H., also lived in the home. He was not quite 2
years old at the time of the filing of the petition. A.H. also had two other siblings, ages 9
(V.H.) and 8 (T.H.). When the petition was filed, the district court held a temporary
custody hearing for A.H. and W.H. The court placed A.H. and W.H. in the custody of the
Secretary of the Kansas Department for Children and Families and ordered both children
to be placed with Mother. Father was not to have any contact with Mother except through
their attorneys, and he was to have no contact, either direct or indirect, with any of his
four children.
At the evidentiary hearing on the petition, the State presented testimony from
Mother and Lisa Knight, a case manager employed by Kaw Valley Behavioral Center
who began working with the family in May 2013. Mother acknowledged that she did not
contest the allegations in the State's petition. However, she then testified that she had
never told anyone that Father had physically abused her or that she was scared of him.
She stated that Father had never hit her, threatened to put her in a body bag, or cursed in
front of the children.
When questioned by the guardian ad litem, Mother admitted she had told a Kaw
Valley Center worker in March 2013 that Father had hit her on top of her head so it
would not leave a bruise. She then acknowledged that her son, W.H., also hits her on top
of her head. Mother also acknowledged that she and Father "have been verbally not nice
to each other."
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Case Manager Knight testified about her conversations with Mother regarding the
nature of her relationship with Father. When asked whether Father had threatened
Mother, Knight replied:
"[Mother] actually said to me that [Father] said that he would not let her leave
except through a body bag and that when she had tried to leave a few times before
whenever arguments got really heated to the point where there was exchange of words
and almost to the point of violence that he would block the doorway and not allow her to
leave."
Knight also testified that Mother reported that Father had made other life-threatening
statements to her. When acknowledging that W.H. was exhibiting violent behavior,
Knight stated that during a supervised visit she saw him punch Mother "extremely hard in
the face two times in a row." When Knight spoke to her about the punching, Mother
admitted, "She believed [W.H.] had learned that from watching [Father] punch her."
Knight also disputed Mother's testimony that there was no domestic violence between
Mother and Father. She also testified that she had concerns for A.H.'s safety while
residing with Mother and Father.
In his response to this evidence, Father presented the testimony of one of his
girlfriends, who is the mother of his two older children. She testified that she was never
physically or emotionally abused by Father. She then stated that she had lied to the
guardian ad litem in this case when she had told him that "[Father] had hit me in my head
repeatedly, that he had called me all sorts of violent names."
The judge was not convinced by the evidence presented by Father. The district
court found A.H. and the three other children were all children in need of care. The
district court ordered Mother to continue with the last 2 months of her existing 6-month
reintegration plan with Kaw Valley Behavioral Center. The court ordered Father to begin
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a new 6-month reintegration plan and ordered that the no-contact order to continue at the
discretion of the officials at Kaw Valley Center.
Father appeals the adjudication of A.H. as a child in need of care, arguing that
there is no clear and convincing evidence that she is a child in need of care.
How we will proceed.
The law is well settled—the State must prove by clear and convincing evidence
that A.H. is a child in need of care. See K.S.A. 2013 Supp. 38-2250. The Kansas
Supreme Court has clarified our role:
"[W]hen an appellate court reviews a trial 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." In re B.D.-Y., 286 Kan. 686, 705, 187
P.3d 594 (2008).
In making this determination, an appellate court does not weigh conflicting evidence,
pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705.
Moreover, to the extent our review requires us to interpret the provisions of K.S.A. 2013
Supp. 38-2202(d)(3), which is a question of law, we have unlimited review. See Jeanes v.
Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
The statutory definition of "child in need of care" is found in K.S.A. 2013 Supp.
38-2202(d). The State cites K.S.A. 2013 Supp. 38-2202(d)(3), which defines a child in
need of care as one who "has been physically, mentally or emotionally abused or
neglected or sexually abused." We note importantly here that K.S.A. 2013 Supp. 38-
2202(d)(11) adds to the list of children in need of care those children who have "been
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residing in the same residence with a sibling . . . who has been physically, mentally or
emotionally abused or neglected, or sexually abused."
The legislature has made it clear that the Revised Kansas Code For Care of
Children shall be liberally construed to carry out the policies of the State which are to
consider the safety and welfare of a child to be paramount in all proceedings under the
code; make the ongoing physical, mental, and emotional needs of the child decisive
considerations in all proceedings under the code; and, provide for the protection of
children who have been subject to physical, mental, or emotional abuse or neglect. See
K.S.A. 2013 Supp. 38-2201(b)(1),(3),(7).
There was scant evidence offered about A.H.
Because she was a babe in arms and had no visible bruising, not much was said
about this 5-month-old girl at the hearing—but in contrast, there was plenty of evidence
concerning domestic violence in her home. The State generally alleged A.H. was a child
in need of care because she (1) was 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; (2) was without the care or control necessary for the
child's physical, mental, or emotional health according to K.S.A. 2013 Supp. 38-
2202(d)(2); and (3) had been physically, mentally, or emotionally abused or neglected or
sexually abused according to K.S.A. 2013 Supp. 38-2202(d)(3).
The State's petition specifically alleged officers had investigated whether Father
physically abused V.H. and T.H. in October 2010 and the existence of a prior history of
the family's involvement with the Department. That history included a July 2010 report
of Father physically abusing T.H. and an October 2012 report indicating a lack of
parental supervision of T.H., V.H., and W.H. The October report expressed, inter alia,
concerns regarding the children's access to illegal drugs and exposure to domestic
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violence. That same month, the Department received additional concerns regarding
Father's drug use and bruising on Mother, possibly caused by Father. The petition also
alleged reports by school employees to the Department expressing concerns about the
health and hygiene of the children as well as domestic violence and drug use in the
household. In addition, a March 2013 report expressed concern W.H. and A.H. were
witnessing domestic violence, with W.H. imitating such violence on Mother when
frustrated or angry, and swearing at her when told not to do something.
The district court, after pointing out Knight's testimony and finding Mother's
denial of any physical abuse not credible, found that the children suffered emotional
abuse as defined under K.S.A. 2013 Supp. 38-2202(d)(3). The district court stated that it
believed "by more than clear and convincing [evidence] that [A.H., W.H., V.H., and
T.H.] have been in at the very minimum a chaotic and abusive—emotionally abusive
situation and that the children are in need of care as it relates to [Father]." The journal
entry, referring to separate case numbers for each of the four children, states:
"The Court finds from the evidence presented that all the children, including [A.H.], have
been exposed to domestic violence in the home, and therefore meet the definition of a
child who has been emotionally abused. The Court therefore adjudicates [A.H.] to be a
child in need of care as that term is defined by K.S.A. 38-2202(d)(3). The Court
specifically finds that all four children have witnessed or been exposed to the domestic
violence in the home, and also meet the definition of child in need of care as that term is
defined by K.S.A. 38-2202(d)(3)."
Perhaps the most telling evidence was the report of W.H. hitting Mother as Father
hit Mother. W.H. clearly met the definition of being emotionally abused under K.S.A.
2013 Supp. 38-2202(d)(3). Thus, the district court's finding that A.H. is a child in need of
care is supported by K.S.A. 2013 Supp. 38-2202(d)(11). Because the district court
correctly found W.H. to be a child in need of care and nobody disputes that A.H. and
W.H. both live in the same residence, the district court, instead of relying on K.S.A. 2013
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Supp. 38-2202(d)(3), could have declared A.H. a child in need of care under K.S.A. 2013
Supp. 38-2202(d)(11).
Essentially, Father is arguing that there is no connection between the evidence of
domestic violence and A.H., other than living in the same house. But Father ignores
Mother's stipulation that A.H. witnessed the domestic violence. This supports a finding of
emotional harm under K.S.A. 2013 Supp. 38-2202(d)(3). We need not speculate about
A.H. further on this point other than recognizing that another panel of this court affirmed
the termination of parental rights, in part because Mother was completely unable or
unwilling to address the harm caused to her children witnessing the domestic violence in
the house. See In re T.J.C.-R., 106,848, 2012 WL 1759828, at *4 (Kan. App. 2012)
(unpublished opinion).
Concerns about children residing in abusive homes are not new. Children are
rarely reared in isolation. They have brothers and sisters. Our court has held: "If the trial
court observes abuse of one child, the judge should not be forced to refrain from taking
action until the next child suffers injury. [Citations omitted.]" In re A.B., 12 Kan. App. 2d
391, 392, 746 P.2d 96 (1987). Young bodies cannot withstand many savage blows; young
psyches, even fewer.
Here, the testimony at the evidentiary hearing, when viewed in the light most
favorable to the State, unmistakably indicates W.H. contemporaneously observed
domestic violence between Father and Mother and suffered emotional harm by being
placed in a position of physical danger. This harm is manifested in behavioral problems
acting out or mimicking Father's violent behavior. Because there was clear and
convincing evidence the district court properly adjudicated A.H.'s brother as a child in
need of care, it was appropriate for the district court to make the same child in need of
care finding for A.H. and the two other siblings. See In re R.B.S., 29 Kan. App. 2d 1023,
1029, 36 P.3d 300 (2001). In R.B.S., our court held that exposing the older sibling to the
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parent's violent relationship and their failure to feed or clothe the child properly is
physically and emotionally abusive behavior justifying a child in need of care
adjudication for a younger sibling.
This holding upholds the policy established by the legislature to liberally construe
the Revised Kansas Code for Care of Children in order to protect children.
Affirmed.
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