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NOT DESIGNATED FOR PUBLICATION

No. 123,596

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of D.H.,

A Minor Child

MEMORANDUM OPINION

Appeal from Gove District Court; BLAKE A. BITTEL, judge. Opinion filed September 3, 2021.

Reversed and remanded with directions.

Carol M. Park, of Schwartz & Park, L.L.P. of Hays, for appellant natural mother. 

Olavee F. Raub, of Raub & Zeigler, L.L.C. of Ellis, for appellee paternal grandfather.

Before HILL, P.J., ATCHESON and WARNER, JJ.

PER CURIAM: The Gove County District Court erred in adjudicating D.H. to be a 

child in need of care in this private action her paternal grandfather filed days after F.M., 

the child's mother, attained an enforceable order from this court granting her legal and 

physical custody of the child. This action allowed Grandfather to retain physical custody 

of D.H. The evidence presented to the district court, however, failed to prove grounds 

supporting the allegations in the petition. We, therefore, reverse the district court and 

remand with directions to dismiss this case and to enter an order giving legal and physical 

custody of D.H. to F.M.
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A SHORT FACTUAL AND PROCEDURAL HISTORY

As permitted by K.S.A. 2020 Supp. 38-2233(b), Grandfather filed his petition to 

have D.H. declared a child in need of care on March 10, 2020—five days after the 

mandate issued in In re D.H., 57 Kan. App. 2d 421, 453 P.3d 870 (2019), rev. denied 311

Kan. 1046 (2020) (D.H. I). The mandate would have required the Ellis County District 

Court to divest the Kansas Department for Children and Families of legal custody of D.H. 

and Grandfather of physical custody in favor of F.M. In D.H. I, we held that the Ellis 

County District Court erroneously found D.H. to be a child in need of care and, thus, 

wrongly prevented F.M. from parenting D.H. Under K.S.A. 2020 Supp. 38-2233(b), 

"[a]ny individual" has the right to file a petition to have a child declared in need of care. 

Grandfather exercised that statutory grant, compromising the fundamental constitutional 

right of F.M. to parent D.H. See Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S. 

Ct. 1388, 71 L. Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 

(2008).

From the outset, the Gove County District Court permitted the Department for 

Children and Families and Grandfather to continue in their custodial roles. The district 

court conducted a temporary custody hearing on several nonconsecutive days in fall 2020 

and retained the custody arrangements. With the agreement of the parties, the district 

court considered that evidence along with additional testimony and exhibits at the 

adjudication hearing in December. In early January 2021, the district court filed a journal 

entry and order finding D.H. to be a child in need of care on two statutory grounds: She 

lacked parental custody or control after March 5, 2019, through the time of the 

adjudication hearing as provided in K.S.A. 2020 Supp. 38-2202(d)(2); and she had been 

mentally or emotionally abused or neglected after June 22, 2018, as provided in K.S.A. 

2020 Supp. 38-2202(d)(3). The district court imposed the time restrictions ostensibly to 

confine the evidence to changed circumstances after D.H. I. Based on the district court's 

order of adjudication, D.H. remained with Grandfather. 
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F.M. has appealed the adjudication of D.H. as a child in need of care. See K.S.A. 

2020 Supp. 38-2273(a) (interested party may appeal order of adjudication). Adjudication, 

however, is an interim step in the legal process under the Revised Kansas Code for Care 

of Children, K.S.A. 2020 Supp. 38-2201 et seq. Ultimately, the process typically 

culminates either in family reintegration in conformity with a structured plan to 

strengthen parenting skills and to address other impediments, such as mental health or 

substance abuse issues, or with a court order terminating parental rights, allowing the 

child to be permanently placed elsewhere.

During the adjudication hearing, the district court took note of D.H.'s childhood 

from her birth in December 2007 and received evidence about her upbringing. That 

history is detailed in D.H. I, and we do not recite it at length here. See 57 Kan. App. 2d at 

422-26. We do mention several mileposts. The State first intervened when D.H. was 

about five months old. Then, P.H., D.H.'s father, sought a judicial determination of his 

paternity and in May 2009 obtained an order giving him primary residential custody of 

the child with F.M. having parenting time. Meanwhile, F.M. had become pregnant and 

moved to Granite City, Illinois, where she has family. F.M. gave birth to a special needs 

son, who is D.H.'s half-sibling, and has continued to live in Granite City. 

Going forward, F.M. had very limited contact with D.H. She was parenting her 

son and had few opportunities to travel. Some evidence suggests P.H. impeded F.M.'s 

efforts to communicate with or visit D.H. F.M. improved herself and her circumstances in 

Illinois: She got a GED, had regular employment, maintained a residence, and sought 

counseling. But F.M. had no in-person contact with D.H. between 2009 and 2015 and 

visited her briefly in Kansas in 2015 and 2017. 

P.H. committed suicide at home on June 20, 2018, while D.H. was there. D.H. 

found her father's body. Because F.M. was living in Illinois, D.H. was immediately taken 
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into protective custody and temporarily allowed to reside with Grandfather. The Ellis 

County Attorney initiated a child in need of care action on the grounds F.M. had 

abandoned D.H. and the child lacked suitable parental custody and control. As we have 

said, the Ellis County District Court adjudicated D.H. to be in need of care, and we 

reversed that ruling in D.H. I, requiring dismissal of that action, thereby eliminating any

legal impediment to F.M. assuming legal and physical custody of her daughter.

Grandfather's initiation of this case imposed a new legal impediment. 

LEGAL ANALYSIS

In an adjudication hearing, the district court must find by clear and convincing 

evidence that a child meets the statutory definition for being in need of care set out in 

K.S.A. 2020 Supp. 38-2202(d). K.S.A. 2020 Supp. 38-2250 ("The petitioner must prove 

by clear and convincing evidence that the child is a child in need of care."); In re B.D.-Y., 

286 Kan. at 697-98. That is a comparatively demanding level of proof exceeding the 

common civil standard of more probably true than not but lower than the criminal 

standard of beyond a reasonable doubt. See 286 Kan. 686, Syl. ¶ 2. An appellate court 

reviewing an in-need-of-care adjudication must be convinced, based on the complete 

evidentiary record viewed in favor of the prevailing party, that a rational fact-finder could

have viewed that determination to be "highly probable, i.e., [proved] by clear and 

convincing evidence." 286 Kan. at 705. So, we must resolve any evidentiary conflicts in 

Grandfather's favor and against F.M. In keeping with that charge, however, we examine 

the record consistent with the time limits the district court applied to examine only new 

circumstances following the proceedings in D.H. I. Although D.H.'s upbringing before 

then affords context, we assess the evidence the district court formally considered in 

finding the child to be in need of care. 

The district court's journal entry and order identifies the specific statutory grounds 

for the in-need-of-care finding and incorporates by reference its oral recitation at the 
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conclusion of the adjudication hearing. The journal entry and order effectively provides 

no amplification or elaboration of the bases for the decision. In its bench findings, the 

district court largely recounted D.H.'s personal history and the progression of the earlier 

judicial actions. 

The oral and written findings do not demonstrate F.M. to be incapable of 

providing parental care or control for D.H. Nor does the record contain evidence 

sufficient to support such a finding under the clear and convincing standard. F.M. appears 

to have ably parented D.H.'s half-brother and has adequate employment, housing, and 

community and family support to take care of both children. 

D.H. has been emotionally abused or neglected during her life and carries 

psychological wounds as a result. Most notably, the circumstances of P.H.'s suicide were 

emotionally abusive of her. The suicide occurred outside what the district court found to 

be the relevant timeframe for this action. That, of course, doesn't erase its impact on D.H. 

Two counselors testified during the adjudication proceedings. One had an ongoing 

therapeutic relationship with D.H., and the other met primarily with F.M. and had a few 

joint sessions with mother and daughter. D.H.'s counselor testified that the child reacted 

negatively to the possibility of moving to Illinois to live with F.M. She showed signs of 

heightened anxiety and stress and voiced reluctance and even opposition to living with 

F.M. The counselor recommended against any immediate change in legal or physical 

custody of D.H. The other counselor concluded that D.H. would adjust to the change 

without any significant adverse effects.

Essentially, the evidence established that D.H. was understandably anxious and 

perhaps even wary of moving to a new place to live with F.M., a parent with whom she 

had only limited interactions during her lifetime. At the same time, however, a child's 

apprehensions about living with an otherwise able parent do not render the child in need
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of care. Without something more, the evidence of emotional abuse or neglect failed to 

satisfy the clear and convincing standard as we must view it on appeal and, thus, did not 

support the district court's finding. If, after F.M. and D.H. are united, there is sufficient 

friction within the family to indicate the child's health or safety may be at risk, 

appropriate authorities in Illinois may intercede to address that actual circumstance. See 

Juvenile Court Act of 1987, 705 Ill. Comp. Stat. § 405/1-1 et seq.; In re J.S., 442 Ill. Dec. 

613, 629-30, 160 N.E.3d 475 (2020) (purpose of Act to advance "best interests and 

safety" of child and to determine if child should be removed from parental custody "as a 

ward of the court"). 

When the evidence fails to establish a child is in need of care, the district court 

must dismiss the petition. K.S.A. 2020 Supp. 38-2251(a). We, therefore, reverse the 

district court's order determining D.H. to be a child in need of care. We also remand to 

the district court with directions to dismiss this action and enter appropriate orders giving 

F.M. legal and physical custody of D.H.

Reversed and remanded with directions.