Opinion
No. 112,246.
2015-02-20
In the Interest of K.W., DOB xx/xx/2008, a female, and C.B., JR., DOB xx/xx/2010, a male.
Appeal from Crawford District Court; Lori A. Bolton Fleming, Judge.Jason P. Wiske, of Law Office of Jason P. Wiske, L.L.C., of Pittsburg, for appellant natural mother.Michael Gayoso, Jr., county attorney, for appellee.
Appeal from Crawford District Court; Lori A. Bolton Fleming, Judge.
Jason P. Wiske, of Law Office of Jason P. Wiske, L.L.C., of Pittsburg, for appellant natural mother. Michael Gayoso, Jr., county attorney, for appellee.
Before HILL, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ch.B., the mother of K.W. (born 2008) and C.B., Jr. (born 2010), appeals the district court's adjudication of her children as children in need of care. The court found K.W. had been sexually abused, yet Mother claimed not to know of the abuse before it was reported. Mother argues clear and convincing evidence did not support the district court's findings that K.W. was a child in need of care (CINC) under K.S.A.2014 Supp. 38–2202(d)(l), (2), and (3), and that C.B., Jr. was a CINC under K.S.A.2014 Supp. 38–2202(d)(11). We affirm.
Factual and Procedural History
K.W. and C.B., Jr. have the same mother but different fathers. K .W.'s father is deceased; C.B., Jr.'s father is C.B., who resided in the same house as Mother and the children. Mother and C.B. apparently had an intimate, dating relationship. On October 18, 2013, the State of Kansas filed petitions alleging K.W. and C.B., Jr. were children in need of care. Both petitions alleged K.W. had been sexually abused by C.B. and Mother had previously refused to allow the Department for Children and Families (DCF) staff to interview K.W.
The CINC adjudication hearing for both children took place on May 14, 2014. C.B. did not appear and had not instructed his attorney to contest the adjudication. The district court found C.B., Jr. to be a CINC as to his father. The court then heard evidence regarding the adjudication of K.W. and C.B., Jr. as children in need of care as to Mother.
The Crawford County Mental Health case manager testified that on October 16, 2013, K.W. disclosed that C.B. had sexually abused her. The case manager asked K.W. if she had told anyone else about these sexual activities; K.W. said she had told her Mother, but C.B. denied it when confronted by Mother. A DCF investigator interviewed K.W., who told her that C.B. had touched her vaginal area with his fingers and put his penis in her butt. K.W. stated these events had occurred in Mother's house in the bedroom shared by Mother and C.B. The DCF investigator did not remember whether K.W. told her that she had told Mother about the abuse. The court reviewed the video of DCF's forensic interview of K.W., but the video was not included in the record on appeal.
Mother testified she was aware that K.W. was exhibiting sexual behaviors at school. Mother asked K.W. if anyone had touched her inappropriately and K.W. said no. Mother enrolled K.W. in counseling to address K.W.'s inappropriate behaviors. Mother testified DCF called her in September 2013 and asked to interview K.W., but Mother refused because she did not feel it was necessary. Mother stated that in September 2013, she did not know the full extent of K.W.'s inappropriate behaviors at school. Mother testified K.W. did not tell her she was sexually abused by C.B. until after she had disclosed the abuse to the case manager on October 16, 2013. After learning of the abuse, Mother demanded C.B. move out of the house.
In October 2013, K.W. was placed with her paternal grandmother after she was removed from the home. K.W.'s paternal grandmother testified that K.W. stated she had not told Mother about the sexual abuse by C.B. because he threatened to cut her throat.
The State claimed K.W. was a CINC because she was “without adequate parental care, control or subsistence” (K.S.A.2014 Supp. 38–2202[d][1] ), was “without the care or control necessary for the child's physical, mental or emotional health” (K.S.A.2014 Supp. 38–2202[d][2] ), or “has been physically, mentally or ... sexually abused” (K.S.A.2014 Supp. 38–2202[d] [3] ). The State claimed C.B., Jr. was a CINC because he was “without adequate parental care, control or subsistence” (K.S.A.2014 Supp. 38–2202[d][1] ), was “without the care or control necessary for the child's physical, mental or emotional health” (K.S.A.2014 Supp. 38–2202[d][2] ), or had “been residing in the same residence with a sibling or another person under 18 years of age, who [was] ... sexually abused” (K.S.A.2014 Supp. 38–2202[d][11] ). Mother argued K.W. and C.B., Jr. should not be adjudicated children in need of care because there was not clear and convincing evidence that Mother knew or should have known of the sexual abuse. She argued that a sexually abused child was not automatically a CINC. She also challenged the State's allegations that the children were without adequate parental care and control.
The district court found the issue of whether Mother knew or did not know of the sexual abuse irrelevant because a child may be declared a CINC regardless of the parents' actions or knowledge. See K.S.A.2014 Supp. 38–2202(d)(8), (9), (10), (12), and (13). Based on the evidence, the district court found K.W. a CINC under K .S.A.2014 Supp. 38–2202(d)(1), (2), and (3), and C.B., Jr. a CINC under K.S.A.2014 Supp. 38–2202(d)(11) as he had been residing in a home with a sibling who had been sexually abused.
Mother timely appeals.
Was the District Court's Order Adjudicating the Children in Need of Care Supported by Clear and Convincing Evidence?
Mother argues clear and convincing evidence did not support the district court's ruling that K.W. was a CINC under K.S.A.2014 Supp. 38–2202(d)(3) because the evidence showed Mother did not know or have reason to know about the sexual abuse of K.W.
The Kansas Legislature has specified that the State must prove “by clear and convincing evidence that the child is a child in need of care.” K.S.A.2014 Supp. 38–2250.
“[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, that the child was a CINC.” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
To the extent Mother's arguments require interpretation of a statute, we exercise unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
Mother argues K.S.A.2014 Supp. 38–2202(d)(3) should require an affirmative act, such as causing the abuse or the indifference of a parent after knowing or having reason to know of the alleged abuse, before a child is adjudicated a CINC due to physical, emotional, or sexual abuse or neglect. She contends that without such a requirement, a child may be subject to being a CINC and removed from a parent's home if the child is abused by a bully at school, a daycare provider or babysitter, or even a random house burglar.
The fundamental rule of statutory construction, to which all other rules are subordinate, is that courts must apply the intent of the legislature as expressed in the plain language of the statute, unless the language is somehow ambiguous. See Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014). K.S.A.2014 Supp. 38–2202(d)(3) merely states that a child who “has been physically, mentally or emotionally abused or neglected or sexually abused” is in need of care. The plain language of the statute does not mandate any other conditions regarding who committed the abuse or who knew about the abuse. Because Mother does not contest that K.W. was sexually abused by C.B., we have no trouble finding it is highly probable that a reasonable factfinder would conclude K.W. was sexually abused by C.B. based on the undisputed evidence presented at the adjudication hearing. Clear and convincing evidence supported the district court's finding that K.W. was a CINC under K.S.A.2014 Supp. 38–2202(d)(3).
Mother also contests the district court's ruling that K.W. was a CINC under K.S.A.2014 Supp. 38–2202(d)(1) and (2). However, a child may qualify as a CINC if only one of the subsections in K.S.A.2014 Supp. 38–2202(d) is met. Therefore, we not need address Mother's arguments on this point because K.W. was correctly found to be in need of care under K.S.A.2014 Supp. 38–2202(d)(3), even if the district court erred by finding K.S.A.2014 Supp. 38–2202(d)(l) and K.S.A.2014 Supp. 38–2202(d)(2) also applied.
Last, Mother argues the district court incorrectly found C.B., Jr. a CINC under K.S.A.2014 Supp. 38–2202(d)(11) because, as she argued above in regard to K.S.A.2014 Supp. 38–2202(d)(3), the statute requires some kind of action or inaction by the parent. K.S .A.2014 Supp. 38–2202(d)(11) defines a CINC as one who “has been residing in the same residence with a sibling or another person under 18 years of age, who has been physically, mentally or emotionally abused or neglected, or sexually abused.” Again, based on the plain language of the statute, there is no indication the actions, inaction, or knowledge of a parent is a factor under this subsection.
Affirmed.