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NOT DESIGNATED FOR PUBLICATION

No. 125,054

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interests of K.R., T.A., and A.S.,

Minor Children.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER, judge. Opinion filed September 

30, 2022. Affirmed.

Jordan E. Kieffer, of Jordan Kieffer, P.A., of Bel Aire, for appellant natural mother. 

Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, for appellee.

Before CLINE, P.J., ATCHESON and COBLE, JJ.

PER CURIAM: At the end of an evidentiary hearing, the Sedgwick County District 

Court found A.A.'s three children to be in need of care and ordered they remain in the 

legal custody of the Kansas Department for Children and Families (DCF), as a local 

social service agency implemented a plan for reunification of the family. A.A. has 

appealed the ruling and asserts insufficient evidence supports the district court's 

determination. We conclude the record establishes appropriate statutory grounds for the 

district court's conclusion as to each child, particularly the youngest, and we, therefore, 

affirm.
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OVERVIEW

DCF intervened in late November 2021 when a medical provider at a Wichita 

hospital reported that A.A. brought A.S., her five-year-old son, to the emergency room 

insisting he had severe and immediately threatening health issues. The treating physicians 

discerned a pattern in which A.A. had taken the child to several other facilities in the 

preceding week or so and had gotten x-rays and other diagnostic tests done. A.A. wanted 

the testing repeated and became hysterically upset when she was told A.S. had no acute 

medical emergency. When A.A. attempted to leave with A.S. and loudly accused the 

medical staff of "fucking killing" the child, hospital security and Wichita police 

intervened. A law enforcement officer took A.S. into protective custody.

The district court granted emergency custody of A.S. to DCF. As part of its 

evaluation of the family situation, DCF had a hair follicle test of A.S. done that showed 

he had a measurable level of methamphetamine in his system. Given those circumstances, 

the agency sought and, in mid-December, was granted emergency custody of K.R., A.A.'s 

12-year-old daughter, and T.A., her 10-year-old son The children are all half-siblings to 

each other. At the time, A.A. resided with a man who was not the biological father of any 

of the children. A hair-follicle test of T.A. was positive for methamphetamine. The State 

ultimately filed separate cases to have each child found in need of care. Those cases were 

consolidated in the district court for all relevant proceedings and remain consolidated on 

appeal.

As permitted under the Revised Kansas Code for Care of Children, K.S.A. 38-

2201 et seq., A.A. requested an evidentiary hearing on whether K.R., T.A., and A.S. 

should be adjudicated in need of care. See K.S.A. 38-2248(e); K.S.A. 38-2251. The 

district court held the hearing in February 2022. K.R. and T.A. were then in the physical 

custody of relatives, and A.S. was in a foster care placement. All three were in the legal 
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custody of DCF. Given the district court's ruling, they remained so when A.A. filed this 

appeal.

GOVERNING LEGAL PRINCIPLES

Before turning to the evidence presented at the hearing and the district court's 

rulings now before us, we outline how the adjudication of a child as being in need of care 

fits in the overall statutory scheme under the Code. In broad terms, an action to find a 

child in need of care rests on the State's parens patriae interest in protecting the safety 

and welfare of children within its jurisdiction. See K.S.A. 38-2201(a) (proceedings under 

Code "deemed to be pursuant to the parental power of the state"); K.S.A. 38-2201(b)(1) 

("safety and welfare of a child to be paramount in all proceedings under the code"); In re 

L.B., 42 Kan. App. 2d 837, 842, 217 P.3d 1004 (2009) (recognizing parens patriae

foundation for proceedings). A case may culminate in the termination of parental rights if 

necessary for the well-being of the child, thus extinguishing a fundamental constitutional 

right of a person to raise his or her offspring. See K.S.A. 38-2269 (grounds for 

terminating parental rights); Santosky v. Kramer, 455 U.S. 745, 753, 759-60, 102 S. Ct. 

1388, 71 L. Ed. 2d 599 (1982) (fundamental right); In re B.D.-Y., 286 Kan. 686, 697-98, 

187 P.3d 594 (2008) (same).

The adjudication of a child as being in need of care—commonly referred to as a 

CINC determination—typically comes early in the case and is usually followed by 

concerted efforts to reunify the family through detailed plans aimed at eliminating the 

deleterious conditions prompting the initial government intervention. DCF often contracts 

with nonprofit social service agencies to design and oversee those plans. If the 

reunification efforts fail, the State may move to terminate parental rights. So a CINC 

adjudication represents an intermediate step in the process. K.S.A. 38-2251. Parents may, 

nonetheless, appeal the adjudication of their children as being in need of care, as A.A. has 

done. K.S.A. 38-2273.
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In a CINC hearing, the district court must find by clear and convincing evidence 

that the child meets the statutory definition for being in need of care. K.S.A. 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 698-99. That is a comparatively demanding 

standard 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 a CINC adjudication must be convinced, based on 

the full evidentiary record viewed in favor of the State as the prevailing party, that a 

rational fact-finder could have found that determination "highly probable, i.e., [proved] 

by clear and convincing evidence." 286 Kan. at 705. The appellate court cannot reweigh 

evidence, independently assess the credibility of witnesses, or otherwise decide factual 

disputes. 286 Kan. at 705. In other words, we now must resolve all evidentiary conflicts 

in the State's favor and against A.A.

The Code functionally defines "child in need of care" by providing 14 different 

ways a child may be found in need of care. K.S.A. 38-2202(d). A single statutory ground, 

if proved, is legally sufficient to support a CINC determination. See In re F.C., 313 Kan 

31, 44, 482 P.3d 1137 (2021) (affirming CINC adjudication where evidence clearly 

supported one of two statutory grounds on which district court relied); In re A.M.D., No. 

117,320, 2017 WL 3001352, at *2 (Kan. App. 2017) (unpublished opinion).

LEGAL PRINCIPLES APPLIED TO EVIDENTIARY RECORD 

We look first at the evidence and the statutory grounds for adjudicating A.S. as 

being in need of care because that determination becomes the linchpin for the 

adjudications of his half-siblings.

A.S. is autistic and has significant developmental delays. At the time of the 

hearing, A.S. was nonverbal and not toilet trained. Much of A.S.'s daily care, such as 
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changing his diapers, apparently fell to A.A.'s live-in companion. The evidence indicates 

A.A. repeatedly took A.S. to physicians and frequently requested specific diagnostic or 

treatment options, sometimes for life threatening conditions. For a time, A.A. voiced 

concern that A.S. had severe renal dysfunction—something never medically 

substantiated. A.A. regularly changed primary care physicians for A.S., as each 

discounted her pleas for further examination and testing of the child. As we have 

indicated, A.A. serially took A.S. to several hospitals over about a week's time in 

November 2021 seeking testing and an invasive biopsy of the child because she 

represented he might have leukemia. Again, no medical evidence supported that 

representation. 

A.A. attributed various symptoms to A.S., including projectile vomiting, swelling 

of the extremities, and almost immobilizing back pain. She insisted A.S. was likely dying 

and his physicians were failing to properly diagnose his condition. At Wesley Medical 

Center, the last hospital to which A.A. took A.S. in November 2021, Dr. Katherine 

Melhorn met with A.A. at the request of another physician. Dr. Melhorn is employed by 

the University of Kansas School of Medicine and is a pediatrician with special expertise 

in child abuse cases. Those cases include instances of medical child abuse in which a 

parent or caregiver repetitively seeks unnecessary and often invasive examinations or 

treatments for a youngster despite assurances from healthcare providers the child requires 

no such care. That persistent behavior is considered a form of mental illness often 

referred to as factitious disorder imposed on another.

After A.S. was taken into protective custody, he remained at the hospital for 

several days. He did vomit a number of times early on, especially after eating—

something possibly caused by his being severely constipated. A.S.'s treating physicians 

observed none of the other symptoms A.A. reported. A.S. did not have leukemia or any 

other acute illness or condition. 
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During the adjudication hearing, Dr. Melhorn was qualified as an expert and 

testified that A.A. subjected A.S. to medical child abuse by continually seeking extensive 

diagnostic tests and treatments for him for serious diseases or conditions that couldn't be 

medically documented. Dr. Melhorn testified that if left unchecked, A.A.'s behavior 

posed a risk to A.S.'s health and well-being. He could be subjected to unnecessary and 

invasive diagnostic procedures and possibly treatment. The State did not present evidence 

that A.S. experienced the repeated hospital visits or A.A.'s volatile behavior at Wesley 

Medical Center as emotionally upsetting or destabilizing. 

The State introduced the results of the hair follicle tests for A.S. and T.A., 

showing measurable amounts of methamphetamine. The State also established that A.A. 

refused to take at least two drug tests after her children were removed to DCF's custody. 

At the hearing, A.A. testified that she did not use drugs or alcohol and offered no 

explanation as to how A.S. or T.A. might have tested positive. A.A. said she refused drug 

testing because she believed it was unduly intrusive and inappropriate until the State 

proved its case. 

The district court specifically credited Dr. Melhorn's testimony and found A.S. to 

be a child in need of care based on three statutory grounds: (1) He "[i]s without adequate 

parental care, control[,] or subsistence" unrelated to his parents' financial means, as 

provided in K.S.A. 38-2202(d)(1); (2) he "is without the care or control necessary for the 

child's physical, mental[,] or emotional health," as provided in K.S.A. 38-2202(d)(2); and 

(3) he "has been physically, mentally[,] or emotionally abused," as provided in K.S.A. 

38-2202(d)(3). The first two grounds refer to the child's circumstance at the time of the 

adjudication hearing and the third refers to anytime leading up to CINC proceedings. See 

In re F.C., 313 Kan. 31, Syl. ¶ ¶ 2-3. 

A.A. challenges the sufficiency of the evidence supporting those determinations 

and, as a subsidiary issue, says the hair follicle test results for both A.S. and T.A. were 
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improperly admitted as evidence at the adjudication hearing and, therefore, cannot be 

considered. On appeal, A.A. contends the test results were not accompanied by a 

certificate conforming to K.S.A. 38-2249(b)(2), permitting their admission without a 

sponsoring witness. The point fails because A.A. did not preserve that objection at the 

hearing, and it cannot be raised for the first time now. See K.S.A. 38-2249(a) (rules of 

evidence apply under the Act); K.S.A. 60-404 (contemporaneous objection required to 

preserve challenge to admission of evidence). 

Without belaboring the matter, the record shows A.A. represented herself with 

standby counsel at the start of the adjudication hearing. She personally lodged an 

objection to the test results and then asked to speak with standby counsel. After doing so, 

A.A. announced she wished to be represented by the lawyer for the remainder of the 

hearing. The district court granted her request. The lawyer then withdrew the objection to 

the test results, and they were admitted. That disposes of the point adversely to A.A., 

since there ultimately was no objection before the district court. As an aside, we mention 

that it is not readily apparent that the affidavits accompanying the test results were legally 

insufficient under K.S.A. 38-2249(b), but we need not reach that question.

For our purposes, the first two grounds for adjudicating A.S. in need of care 

functionally overlap. At the time of the hearing, A.A. labored under a disorder leading 

her to seek unnecessary medical care and treatment for A.S. and causing her to react 

volatilely when physicians challenged her contentions. As Dr. Melhorn testified, A.A.'s 

uncontrolled behavior placed A.S. at considerable risk for unnecessary and intrusive 

medical tests and otherwise needlessly disrupted his daily activities. Dr. Melhorn 

characterized this as a form of medical child abuse. A.A.'s unchecked behavior displayed 

a lack of care for A.S.'s physical health, satisfying K.S.A. 38-2202(d)(1) and (2). 

Likewise, A.A.'s past conduct demonstrated the same lack of care, thereby supporting the 

district court's finding under K.S.A. 38-2202(d)(3). The district court credited Dr. 

Melhorn's testimony, and her testimony was unrebutted by any competing expert opinion. 
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On appeal, A.A. counters that the evidence indicates she was a well-meaning 

parent attempting to look out for a child with special needs. Although that seems to 

reflect an especially antiseptic reading of the record, it is essentially irrelevant. The Act is 

geared toward protecting the physical, mental, and emotional health of children neglected 

or otherwise placed at risk by their parents or caregivers. And the State may intervene to 

further that objective without regard to the parent's intent or state of mind if a child is at 

risk and meets the statutory definition for being a child in need of care. Cf. In re M.P., 

No. 119,444, 2019 WL 2398034, at *4 (Kan. App. 2019) (unpublished opinion) 

("[P]arental unfitness under the Code is not fault based but, rather, turns on a parent's 

ability to sufficiently care for his or her child."). In short, good intentions do not amount 

to a defense in a child in need of care proceeding. 

A.S.'s positive test for exposure to methamphetamine not only bolsters the district 

court's determination but also provides an independent basis for it. Methamphetamine is a 

particularly insidious illegal drug with myriad adverse effects on those ingesting it. Here, 

A.S. was inexplicably exposed to the drug while in A.A.'s care and custody—a 

circumstance that standing alone suggests a lack of due care. Moreover, A.A. adamantly 

refused to take drug tests after her children had been placed in State custody. The refusal 

itself can be construed as circumstantial evidence that A.A. knew she would have tested 

positive for some controlled substance notwithstanding her protestations otherwise. See 

In re P.L., No. 120,220, 2019 WL 2063874, at *3 (Kan. App. 2019) (unpublished 

opinion) ("We have inferred illegal drug use in termination cases based on a parent's 

deliberate and ongoing avoidance of drug testing."). The confluence of A.S.'s positive test 

and A.A.'s refusal to test supports a finding the child was and remained in need of care 

based on a continuing risk of exposure to methamphetamine in the home or more broadly 

while in his mother's custody. The determination, in turn, warrants State intervention 

through an approved social service agency to address the matter of illegal drug abuse and 

to formulate a corrective plan, if necessary. 
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In sum, the district court's determination that A.S. is a child in need of care finds 

ample support in the record evidence.

The district court found both K.R. and T.A. to be in need of care based on the 

three statutory grounds applicable to A.S. and also because they had been residing in the 

same household with a sibling under 18 years of age "who has been physically, 

mentally[,] or emotionally abused or neglected, " as provided in K.S.A. 38-2202(d)(11). 

A.S. obviously is the abused or neglected sibling triggering K.S.A. 38-2202(d)(11). 

Given our conclusion that the district court properly adjudicated A.S. as a child in need of 

care, the district court likewise correctly concluded his older siblings were in need of 

care, since they resided with him. And that alone is sufficient to support the district 

court's rulings as to K.R. and T.A.

The adjudication hearing evidence indicated that K.R. and T.A. are comparatively 

typical children for their ages with neither special needs nor demonstrable adjustment 

issues, such as truancy or delinquency. The State offered no evidence they were unkempt, 

unfed, or otherwise visibly neglected. But T.A. tested positive for methamphetamine, 

although at a much lower level than A.S. For the same reasons that circumstance, coupled 

with A.A.'s refusal to test and related evidence, established A.S. to be in need of care, it

does so for T.A. 

By the same token, however, we have difficulty concluding the State offered 

evidence that would persuade a fact-finder to a high degree of probability that K.R. was 

in need of care under K.S.A. 38-2202(d)(1), (2), or (3). She does not appear to have been 

left without care or control and has not herself been abused or neglected. But, as we have 

explained, K.R. met the statutory criterion for a child in need of care in K.S.A. 38-

2202(d)(11). 

Affirmed.