In the Interest of A.H.

334 P.3d 339, 50 Kan. App. 2d 945, 2014 Kan. App. LEXIS 72
CourtCourt of Appeals of Kansas
DecidedSeptember 26, 2014
DocketNo. 111,231
StatusPublished
Cited by4 cases

This text of 334 P.3d 339 (In the Interest of A.H.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of A.H., 334 P.3d 339, 50 Kan. App. 2d 945, 2014 Kan. App. LEXIS 72 (kanctapp 2014).

Opinion

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, [946]*946A.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.

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.

[947]*947When 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.”

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 Modier 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 a new 6-month reintegration plan and or[948]*948dered 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 die 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 tire 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 tiróse 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.”

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Bluebook (online)
334 P.3d 339, 50 Kan. App. 2d 945, 2014 Kan. App. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-ah-kanctapp-2014.