Opinion
No. 108,626.
2013-03-8
In the Interest of C.B., A.B., Minor Children Under the Age of Eighteen.
Appeal from Shawnee District Court; Daniel L. Mitchell, Judge. Rachel I. Hockenbarger, of Topeka, for appellant. Chadwick J. Taylor, district attorney, and Jodi Litfin, assistant district attorney, for appellee.
Appeal from Shawnee District Court; Daniel L. Mitchell, Judge.
Rachel I. Hockenbarger, of Topeka, for appellant. Chadwick J. Taylor, district attorney, and Jodi Litfin, assistant district attorney, for appellee.
Before STANDRIDGE, P.J., GREEN and LEBEN, J.J.
MEMORANDUM OPINION
PER CURIAM.
A.H. (Mother) appeals the adjudication of her minor children, C.B ., born 2007, and A.B., born 2005, to be children in need of care. Mother appeals the district court's decision, claiming no rational fact-finder could have found the children to be in need of care from the evidence presented at trial, as the court made no factual findings at trial or in the journal entry. Mother argues that the findings made later do not accurately reflect the record, therefore the court failed to perform the required balancing test in adjudicating C.B. and A.B. to be in need of care.
A child in need of care is one who is under the age of 18 and meets one of the factors in K.S.A.2011 Supp. 38–2202(d); there must be clear and convincing evidence to support such a finding. The court found that C.B. was malnourished, that the home was unsuitable because of animal feces and dangerous objects within the children's reach, and that the children's demeanors had changed in a short period of time. Although the court initially did not make these factual findings, the record was properly reopened, and the findings made supported the determination that the children were in need of care. We therefore affirm the district court's judgment.
With that introduction, we next consider more specifically how the case developed in the district court. On May 11, 2011, the State filed a petition alleging C.B. and A.B. to be children in need of care as defined in K.S.A. 38–2202(d)(l), (2), (3), and (11). That same day, a temporary custody hearing was held, and C.B. and A .B. were placed with the Kansas Department of Social and Rehabilitation Services (SRS).
On July 25, 2012, Father entered a no-contest statement in response to the petition. The court accepted Father's statement and found there to be a sufficient factual basis to find the children to be in need of care with regard to Father. On the same day, a trial was held on the merits of the petition as they related to Mother.
Leann Southard, a social worker with SRS, testified to having received a report of physical neglect involving the family in April 2011. Southard visited the home and reported that it was cluttered with trash and boxes and that she saw dog feces and urine on the floors, including feces in C.B.'s bedroom. She testified that she saw a knife, a hatchet, a BB gun, and prescription pill bottles out within reach of the children and hook-and-eye latches on the outside of both A.B.'s and C.B.'s bedroom doors. Southard noted that A.B. said she would have to knock to get out of her room to use the restroom and would only be given a minute, even if that was not enough time.
Southard had previously visited the home in September 2010 in regard to a report of physical neglect of A.B. She testified that the conditions of the home had been roughly the same, though on the earlier visit, she saw no dog feces, urine, dangerous items, or locks on the door.
While at the home in April 2011, Southard also observed that C.B. was very thin and had a large bruise on his forehead. She spoke to C.B., who told her that the bruise was from banging his head on the wall. When Southard went into C.B's room, she saw a large hole in the wall next to his bed.
Southard noted that there was adequate food in the home, but C.B. told her that he was not sure when he had last eaten. Southard testified that Mother did not seem concerned with C.B.'s weight. On May 6, Southard followed up over the phone and asked Mother to take C.B. to a doctor for the bruise on his forehead and for his body weight. Although Southard said that Mother was initially hesitant, saying that she wouldn't be able to get an appointment for maybe months, Mother called back and said she had an appointment for C.B. that afternoon with Dr. David Nichols.
Nichols had been the pediatrician for the children since birth. Nichols testified at the hearing that he first became concerned with C.B.'s weight on May 6, 2011. The last appointment C.B. had had with Nichols was in March 2011, and between March and the May 6 appointment, C.B. had lost 22% of his body weight. Before the May visit, Nichols said C.B. had always had a stocky build. Nichols described this weight loss as “very abnormal, very concerning” for a child C.B.'s age, and Nichols immediately had C.B. admitted to the hospital. Nichols was asked whether acid reflux could have caused C .B.'s weight loss, since Mother had offered this as a possible explanation. Nichols testified that it would only cause such a weight loss if the child stopped eating.
Nichols also testified that at the May appointment, both C.B.'s and A.B.'s demeanors were different. Specifically, Nichols said that C.B. had always been interactive at his appointments, but at the May appointment he sat on the table emotionless and did not move, even at Nichols' request, until Mother told him he could. Similarly, Nichols said that A.B. was a “vibrant, active young lady” who usually chattered the whole appointment, but at the May appointment she just sat in a chair and did not speak unless Nichols directly asked her something.
Una Scruggs, the hospital pediatrician, testified that C.B. looked emaciated when he was admitted to the hospital. Scruggs noted that C.B.'s skin was saggy and dry, his heart rate was low, and he walked very slowly, all of which are signs of emaciation. Scruggs' concern at the time was that C.B. might have had a chronic illness causing the weight loss—cancer in particular. Scruggs said that lab work was performed and cancer was ruled out, leaving the only other cause of the emaciation to be malnutrition. When asked if acid reflux could have caused C.B.'s emaciation, Scruggs said that although it could in young babies, it would not cause emaciation to the extent that C.B. was experiencing it. She also testified to having seen the bruise on C.B.'s forehead.
Chris Moody, a social worker at the hospital, was called in to facilitate and coordinate a report for the safety of the children based on C.B.'s malnutrition. She noted that the children were offered movies and toys to occupy their time, but that they were not allowed to choose and that Mother spoke for them, which Moody said is not normal behavior. Moody also testified that when A.B. was offered a menu of food and told she could choose anything from it, A .B. looked at Moody in disbelief, wanted a large amount of food, and took the leftovers with her.
Moody testified that the clothes the children were wearing at the hospital were acceptable. But Moody went on to say that A.B. was given a sweater because she was cold and that she asked if she could keep it and have another shirt. A.B. then told Moody that she was worried Mother would be upset that she was not wearing her other shirt. A.B. told Moody that it was typical that she would wear the same shirt 3 days in a row. Moody testified that concerns about a parent being upset about clothing are not something she usually sees in the children she works with.
Moody stated that she was told by Mother that she limited C.B.'s food because he would eat until he threw up, but that Mother later told her she would not allow C.B. to eat until he threw up. Moody went on to say that she did not feel that Mother was concerned about C.B.'s condition and that Mother did not seem to understand how sick he was.
Moody called police, and Officer Scott Koch arrived at the hospital May 7, 2011, in reference to a neglected child. Koch testified that when he saw C.B., he noticed a bruise on the child's forehead, observed that C.B. was very skinny, and could see almost every rib and C.B.'s shoulder blades sticking out. Koch also noted that C.B. seemed tired and needed help getting back into bed. While at the hospital, Koch also spoke with A.B., who he said also appeared to be skinny. Koch said that both children were dirty and that A.B. told him she had not showered in a long time because her parents did not like to give them showers. Koch determined that it was in the children's best interest to be placed in police protective custody.
At trial, Mother testified to these same events, but she had a different interpretation of them. She testified that C.B. and A.B. began displaying issues with food and having behavioral issues when they were living part time with Father. She stated that C.B. began head-butting and was aggressive. Mother said that C.B. would eat until he threw up, and then he would continue to try and eat more. She said that C.B. looked pudgy, so she took lactose out of his diet and he appeared to slim down.
Mother testified that A.B. would steal food at night and hide it in her room, as well as stealing candy from kids at school. Mother also said that A.B. would turn “extremely violent.”
Mother testified that she disciplined the children by giving them time-outs in their bedrooms, but she did not lock them in. She stated that the reason for the locks on the outside of the doors was to lock the dog in the rooms. Mother also testified that she imposed a 5–minute time limit on the bathroom, not 1 minute, and only because C.B. had previously been taken to the hospital for drinking mouthwash.
With regard to the social worker's home visit, Mother testified that Southard did not tell her to clean up the home or say that she was concerned with C.B.'s weight. Mother said that she told Southard she had her own concerns about C.B. and already had plans to take him to see Nichols.
Mother stated that she did not believe that C.B. was malnourished, and instead she thought there was something else wrong with him. When asked what other condition may have caused the malnutrition, Mother stated that she thought acid reflux may have caused it. Mother also said that she felt that C.B. could not tell when he was full, which led to him throwing up and thus not retaining nutrients.
During a brief recess, the State requested that the court take judicial notice of a criminal case filed against Mother alleging 2 counts of aggravated endangering a child—case number 11–CR–2007—1 count for each child. At the time of the adjudication trial, Mother had been bound over for trial on 1 count of aggravated endangering a child, the victim being C.B.
The court found C.B. to be in need of care because he was without adequate parental care, control, or subsistence and the condition was not due solely to the lack of financial means of his parents; he lacked the care or control necessary for his physical, mental, or emotional health; and he had been neglected. K.S.A.2011 Supp. 38–2202(d)(1), (2), (3). The court found A.B. to be in need of care because she had been residing in the same residence with a sibling under 18 years of age who had been neglected. K.S.A.2011 Supp. 38–2202(11). The journal entry of trial was filed on August 13,2012.
The district court did not make specific factual findings when it made its initial ruling, but the court later reopened the case and adopted findings of fact submitted by the parties in support of the court's determination that the children were in need of care. The 11 findings adopted by the court were as follows:
“1. Dr. Nichols detected a significant weight loss by Respondent [C.B.] when he was seen by the doctor in May 2011.
2. Dr. Scruggs determined that the weight loss was due to malnutrition after excluding other possible health related explanations.
3. Mother's information provided to social worker Chris Moody was not consistent. An example is Mother said that Respondent [C.B.] would eat to the point of throwing up, but then later changed the story to say that Mother stopped the Respondent before he threw up.
4. Respondent [A.B.] reported to Chris Moody that she would wear the same clothes for three days or more at a time.
5. Respondent [A.B.] and [C.B.] reside together in the same home where Respondent [C.B.] was malnourished.
6. Dr. Nichols noticed a change in behavior in regards to the Respondents. The Respondents were outgoing children, but on their visit with Dr. Nichols in May 2011 they were very reserved and looked to Mother for permission to do even routine things such as getting up from the examination table.
7. Mother was charged with two counts of Aggravated Child Endangerment (Shawnee County Case 11CR2007). After a preliminary hearing in March 2012, the Court found probable cause that the crime of Aggravated Child Endangerment occurred as to Respondent [C.B.] and the matter is set for Jury Trial.
8. Mother told Chris Moody that she only went to the doctor because DCF directed her to do so. Mother denies this conversation occurred.
9. On at least one occasion when DCF was in the home there was dog feces on the floor that was accessible to the children, along with a hatchet and a knife.
10. Respondent [A.B.] told LeAnn Southard of DCF that she had to ask permission to use the bathroom and was only given one minute to use the bathroom (even if one minute was not long enough). Ms. Southard did testify that Mother's home in Meriden was in no worse shape in November 2010 than when she was in Mother's Topeka home in April 2011. Ms. Southard did not remove the children from the home in November 2010 or April 2011.
11. Officer Koch witnessed Respondent [C.B.] not have the strength to get back into bed on his own power. Officer Koch witnessed Respondent [C.B.]'s ribs and shoulder blades as being clearly visible.”
Mother has appealed the district court's determination of her children to be in need of care.
When reviewing child-in-need-of-care cases, the appellate court must determine “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 the determination to be 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). We look at the evidence in the light most favorable to the State because it was the prevailing party before the district court, and the district court, not this appellate court, is the fact-finder.
Mother appeals the ruling finding C.B. and A.B. to be children in need of care because no rational fact-finder could have found them to be so from the evidence presented at trial. She first claims that the evidence is insufficient because neither the journal entry of trial nor the transcript of the trial sets forth factual findings to support the CINC determination. Next, Mother claims that even if the findings of fact that were later added to the record served to remedy the first error, those findings still do not constitute sufficient evidence, as they do not accurately reflect the whole record and thus the court could not have performed the balancing test required when adjudicating CINC cases.
Mother's first argument is that the court erred in finding the children to be in need of care based on “ ‘all the evidence presented,’ “ and not making any factual findings in the journal entry or transcript. Mother cites to In re Adoption of Baby Boy M., 40 Kan.App.2d 551, 561–62, 193 P.3d 520 (2008), a parental-rights-termination case that found that the journal entry contained no factual findings to support termination, only a conclusion that it was in the child's best interest to terminate, and that such a conclusion was insufficient. Mother contends that here, the lack of factual findings in the journal entry and transcript means that the facts are insufficient to support the finding that her children are in need of care.
The State contends that although the court only generally mentioned “ ‘all the evidence presented’ “ in the initial journal entry as the basis for determining the children to be in need of care, the court properly reopened the record and allowed the findings of fact to supplement the determination. The State relied on K.S.A.2011 Supp. 60–260, which says that the court “may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order or other part of the record. The court may do so on motion, or on its own, with or without notice.” The State moved to reopen the record in order to remedy the court's omission of the facts it relied upon in determining C.B. and A.B. to be in need of care, and the parties agreed to 11 findings of fact that came out of hearing on the June 25, 2012.
In the Baby Boy M. case that Mother cites, there is nothing to suggest that either party or the court attempted to fix the error. Here, though, the record was reopened and the parties agreed to 11 facts, which the court then adopted as its findings in support of its ruling. Although the court erred initially in its ruling by not providing findings of fact to support its ruling, the error was remedied by the reopening of the record and supplementation of the relied upon facts.
Mother next argues that the findings adopted do not constitute sufficient evidence to support the district court's determination that C.B. and A.B. were in need of care. Kansas courts have recognized a parent's fundamental right to be with and raise his or her children. In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007); Sheppard v. Sheppard, 230 Kan. 146, 152, 630 P.2d 1121 (1981), cert. denied455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982); In reL. B., 42 Kan.App.2d 837, 842, 217 P.3d 1004 (2009), rev. denied 289 Kan. 1278 (2010). Because a fundamental right is at stake, the court must balance the interests of the parent, the child, and the State. L.B., 42 Kan.App.2d at 842, 217 P.3d 1004.
Mother contends that the findings do not reflect the whole record and that there is no indication from those findings that the court performed the required balancing test of these interests. Mother goes on to list testimony given at trial that was not included in the findings of fact as examples of what she considers to be missing relevant evidence. She contends that this missing evidence shows that the court did not balance the competing interests when determining C.B. and A.B. to be in need of care, and that if the interests had been properly weighed, a rational fact-finder would have concluded that the children were not in need of care.
The State argues that the court considered the evidence presented at trial and made credibility determinations and factual determinations before ruling and before adopting the findings of fact. The State contends that by asking the appellate court to look at evidence that was not included in the court's findings of fact, Mother is essentially asking that the evidence and credibility of witnesses be reweighed. The State maintains that the appellate court is not to “weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.” B.D.-Y., 286 Kan. at 705, 187 P.3d 594.
When a CINC case is on appeal, the appellate court must review the evidence in the light most favorable to the State, and it is not to reweigh evidence or redetermine credibility of witnesses. B.D.-Y., 286 Kan. at 705, 187 P.3d 594. Mother's argument is asking the appellate court to review the evidence—not in the light most favorable to the State, but instead with fresh eyes. Mother's testimony directly contrasted with the testimony of medical professionals and social workers who were involved in the case. When adopting the findings of fact, the district court determined what evidence and testimony it found to be relevant and credible in determining C.B. and A.B. to be in need of care. Although Mother is unhappy that much of her testimony has been left out of those findings, the district court is in the best position to determine whether Mother's testimony was credible or not. The appellate court is not to reweigh how credible it may find Mother's testimony to be. Further, although the court did not directly mention the competing interests at trial, in the journal entry, or in the findings of fact, the court likely found the children's interests in living in a safe environment and the State's interest in protecting these young children to outweigh any interest Mother had in raising and being with her children.
When we look at the specific legal bases cited by the district court for its child-in-need-of-care findings, there is sufficient evidence in the record to make those findings highly probable when the facts are looked at in the light most favorable to the State.
As to C.B., the court cited three subsections of K.S.A. 38–2202(d), and each finding was supported by substantial evidence:
• Subsection (1) applies when a child is “without adequate parental care” or “subsistence” and the condition is not “due solely to the lack of financial means” of the parent. C.B. was badly malnourished, and the evidence strongly suggested neglect or abuse. In addition, items dangerous to C.B. were around the house where he could reach them.
• Subsection (2) applies when a child is “without the care or control necessary for the child's physical, mental or emotional health.” Once again, C.B.'s poor medical condition showed lack of adequate care when the evidence was viewed in the light most favorable to the State. No medical reason was suggested by the doctors who provided care to C.B. for his malnourishment; based on the doctors' testimony, abuse or neglect was highly probable.
• Subsection (3) applies when a child has been “physically, mentally or emotionally abused or neglected.” C.B. had lost 22% of his body weight in 2 months, and with other causes unsupported by medical testimony, abuse or neglect was highly probable as the cause.
As to A.B., the court cited subsection (11), which applies to a sibling residing in the same residence as another child “who has been physically, mentally or emotionally abused or neglected.” Because the evidence supported the district court's finding that C.B. had been abused or neglected, the evidence also supported the district court's conclusion that A.B. was a child in need of care under subsection (11).
We therefore affirm the district court's judgment