In re Interest of F.C.

482 P.3d 1137

In the INTEREST OF F.C., a Minor Child.

No. 121,536

Supreme Court of Kansas.

Opinion filed March 19, 2021.

Jeffrey Leiker, of Overland Park, argued the cause and was on the briefs for appellant natural mother.

Meredith D. Mazza, assistant county attorney, argued the cause, and Todd Thompson, county attorney, was with her on the briefs for appellee.

The opinion of the court was delivered by Wilson, J.:

This is a child in need of care (CINC) case. In it, we interpret and apply K.S.A. 2017 Supp. 38-2202(d). This statutory subsection defines "[c]hild in need of care" for purposes of the Revised Kansas Code for Care of Children, K.S.A. 2017 Supp. 38-2201 et seq. These definitions both inform the court of the theories by which a child may be determined to be in need of care if the evidence so shows and instruct the court of the time at or during which that evidence must exist. The questions presented involve two parts of that statute: K.S.A. 2017 Supp. 38-2202(d)(2), which focuses on whether the child lacks necessary care or control, and K.S.A. 2017 Supp. 38-2202(d)(3), which focuses on whether the child has been abused or neglected.

FACTS AND PROCEDURAL BACKGROUND

In February of 2018, 13-year-old F.C. lived in Ft. Leavenworth, Kansas, with her mother, H.C. (Mother) and stepfather, R.C. (Stepfather), along with F.C.'s two younger siblings. F.C. had lived with Mother and Stepfather since she was a small child. Stepfather served as an officer in the U.S. Army.

That month, Payton Herken, a social worker at the Kansas Department for Children and Families (DCF), received a report about possible abuse of F.C. by Stepfather. The report worried Herken enough to contact F.C. the same day. After visiting with F.C., Herken called Mother. Herken also contacted the Army to inform it of her concerns about Stepfather. Later that day, Mother and Herken signed a family "safety plan" that included expectations of how the adults would modify some behaviors around the children and how discipline would be conducted. The plan would last a month. Within a day or two of Mother and Herken's visit, the entire family met to discuss the safety plan and Stepfather agreed to adjust his behavior.

About a week later, Herken followed up with F.C. and Mother. Herken learned the safety plan had not been followed faithfully. Herken was displeased and reminded Mother that the safety plan must be followed at all times. Herken's concern grew that Mother might not be willing to do what was needed to protect the children from Stepfather. Around this same time, the military asked Stepfather to leave the family home, which he did.

F.C. was given a child advocacy interview on March 13, 2018. A copy of the recording of this interview was admitted at the adjudication hearing, and the district court reviewed it. In it, F.C. described Stepfather's drinking problem, disciplinary habits, and the incidents during which she felt she had been touched inappropriately.

F.C. stated that Stepfather was "verbally abusive and emotionally because he really ... tears me up inside, it feels like, and ... makes me ... want to run away and everything[.]" F.C. stated that when he would drink, "I didn't feel safe at all. I just wanted to run away and go somewhere ... and stay at my friend's house because I did not want to be by him at all."

F.C. also described Stepfather's long term practice of routinely walking around the house in the nude, and his habit of coming into the bathroom—sometimes naked—while she was showering. The shower had only a see-through plastic sheet around it, so F.C. would turn around so that Stepfather could not see her. According to F.C., the clear shower curtains were Stepfather's idea: his stated reason was to ensure that the children were not "messing around" in the shower. Stepfather did not knock to announce his presence; rather, he simply entered the bathroom and stood close to F.C. Additionally, F.C. described Stepfather's comments in connection with the underwear she purchased, including his musing aloud as to why Mother could not wear similar underwear.

Following the interview, Herken again met with Mother on April 2, 2018, to discuss a second safety plan, but there was no agreement before Herken went to the office of the county attorney. On April 9, 2018, the State filed a petition under K.S.A. 38-2234, alleging F.C. to be a CINC. At the time the CINC petition was filed, Stepfather was still out of the home. F.C. was referred to KVC and was removed from the home.

The matter came before the district court for an adjudication hearing on December 4 and 13, 2018. When asked about whether her stepfather had ever been physically abusive, F.C. testified that she had been spanked with a belt, but that lately she was either grounded or had her phone taken away. She also described an incident from late December 2017.

F.C. was in trouble for fighting with her sister. To "cool [her] off," Stepfather made her stand on the snowy porch without a coat in her stocking feet. After about 5 to 10 minutes, Stepfather asked F.C. whether she wanted to come back inside. When she said "okay" instead of "yes, sir," she was ordered to do pushups. During the pushups, Stepfather pushed on her back and told her to go lower. Then Stepfather pushed her up against a wall. When F.C. then told Stepfather she was "sick of the way he was treating me and my mom and my siblings," Stepfather told her to go upstairs. Then, after getting some tools, Stepfather went to F.C.'s bedroom and removed her bed, phone, and T.V., took the bedroom door off its hinges, and told F.C. she was not allowed to use electricity, including her bedroom lights. Her bed was replaced with a cot. After three days, the bedroom was placed back as it had been before the discipline was imposed.

Mother testified that she was "[n]ot really scared" of Stepfather when he drank, but she admitted that the children were scared of him. Mother further represented that the situation around the house had been improving since the family meeting, when Stepfather had stopped drinking, including during the approximately six weeks when F.C. was still at the house. Mother also opined that it would be safe for F.C. to return to the home.

Mother admitted that she "can see ... now" how F.C. would be more uncomfortable with Stepfather's nudity now that F.C. was going through puberty. She noted that Stepfather's habit of walking around naked at home "was just something that he had done ever since I've known him." However, Mother also said that, after the family meeting, Stepfather no longer walked around naked. Mother "wasn't aware that [Stepfather] would stand there and look at [F.C.]" while F.C. was showering "for any longer than just saying ... you need to get out of the shower, you know, hurry up[.]" Mother eventually put up "regular[,]" apparently opaque shower curtains in both bathrooms.

After the adjudication hearing, the district judge found F.C. to be a CINC under both statutory theories. In part, this conclusion was based on the district court's findings that F.C. was a credible witness, and that during their testimony both Mother and F.C. appeared to be afraid of Stepfather.

More specifically, the district court made the following findings and conclusions at the end of the adjudication hearing:

"I spent an hour, hour and a half, whatever it was watching that video, listening to [F.C.], and then I listened to her here today.... I believed [F.C.]. I found her testimony very compelling....

"... I just don't know very many people that would say it's okay to raise a child by running around nude in the house. Under the facts in this case, it didn't appear sexual, but for a 13-year-old girl to have to see her [stepfather] running around the house, and it sounded to me like it was on a regular basis, that it was just happening all the time, that isn't bad enough, but then he has to walk in on her in the shower....

"I think when you add up all of the facts here, they do add up to emotional abuse. I think this child has been subjected to emotional abuse that a child should not be subjected to. The [stepfather's] drinking was out of control, and I know that being an alcoholic is not illegal; being an alcoholic does not cause somebody to be a child in need of care, but it sounds like he has anger control problems that are compounded by the drinking, and I think that that was very apparent in the testimony of both [F.C.] and her mother. I think both of these women are intimidated by him, and I've not met him, but he must be an intimidating guy because you can see the fear in their face when they talked about his drinking and how he acted.

"You get into the actual disciplining imposed, I frankly can't comprehend the whole deal about taking the door off the hinges, taking the bed away, not allowing her to use electricity. I think that the discipline is over the edge. I think it rises to the level of emotional abuse. I think that the mother is intimidated by the stepfather, and I don't think she was able to take the proper corrective measures until late in the game, and so I do think that there is clear and convincing evidence that [F.C.] is a child in need of care...."

Mother appealed, and the Court of Appeals reversed the district court. The State then petitioned this court for review, which was granted on an expedited basis.

We will discuss additional facts more specifically below, where pertinent.

ANALYSIS

In order to determine whether the State proved F.C. was a CINC under either or both of its theories—that F.C. lacked sufficient care or control, pursuant to K.S.A. 2017 Supp. 38-2202(d)(2), and that F.C. was abused or neglected, pursuant to K.S.A. 2017 Supp. 38-2202(d)(3) —we first examine the applicable law. This requires interpretation of a statute.

K.S.A. 2017 Supp. 38-2202(d)(2)-(3) states as follows:

"As used in the revised Kansas code for care of children, unless the context otherwise indicates:

....

"(d) ‘Child in need of care’ means a

...