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NOT DESIGNATED FOR PUBLICATION

No. 121,536

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of F.C.,

A Minor Child.

MEMORANDUM OPINION

Appeal from Leavenworth District Court; GERALD KUCKELMAN, judge. Opinion filed March 27, 

2020. Reversed and remanded with directions. 

Jeffrey Leiker, of Overland Park, for appellant natural mother.

Meredith D. Mazza, assistant county attorney, and Todd Thompson, county attorney, for appellee.

Before GARDNER, P.J., ATCHESON and BRUNS, JJ.

PER CURIAM: Mother appeals the district court's order adjudicating her 13-yearold daughter, F.C., a Child in Need of Care (CINC). She argues that insufficient evidence 

supports the district court's conclusion. After reviewing the record in the light most 

favorable to the State, we agree.

Factual and Procedural History

On February 21, 2018, Payton Herken, a child protection specialist with the

Kansas Department for Children and Families (DCF), received a report alleging 

Stepfather sexually abused F.C. The report indicated that Stepfather walks around the 

house naked and that he masturbated in his bedroom with the door open. The report also 
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stated that Stepfather took F.C. to buy bras and underwear, made her try them on for him,

and asked why Mother did not wear sexy lingerie like that.

After receiving the report, Herken contacted the Criminal Investigation Division 

(CID) at Fort Leavenworth because Stepfather was active military. Herken and a CID 

agent went to F.C.'s school to talk to her. F.C. told Herken that Stepfather drinks every 

day and, "'[w]hen he drinks, he changes and gets angry and threatens to do stuff.'" F.C. 

also said she thought Mother was scared because of his drinking. F.C. reported that 

Mother had spoken with someone at the Army Community Service because things were 

bad at home. F.C. mentioned that she was afraid of Stepfather, mostly because of his 

drinking. 

F.C. told Herken about an incident in December 2017, when Stepfather disciplined 

her. Stepfather made F.C. stand outside in the snow, with no shoes, for 15 minutes 

because he was mad that she had gotten on Snapchat. When she came inside, Stepfather 

told F.C. to do 20 push-ups and when F.C. failed to say "'Yes, sir'" between each push up,

she had to redo them. F.C. said her Mother was present during this incident. Stepfather

also took off her bedroom door and took away her bed, leaving her with a cot to sleep on 

for a few days to make her more appreciative of the things she had. F.C. said that Mother 

recorded this incident. 

F.C. told Herken that Stepfather walks around the house naked in the mornings 

while he gets ready for work, and it makes her "uncomfortable." F.C. also reported that 

she once saw Stepfather masturbate when he was in his bedroom and had left the door 

open. F.C. said she was not sure if he had left the door open on purpose or not. F.C. said

Stepfather made comments to her that Mother does not do anything romantic for him. But 

when asked about the reported bra shopping incident, F.C. denied that Stepfather had 

taken her shopping. 
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Herken believed that F.C. was frightened when she was interviewing her. When 

Herken explained that Mother and Stepfather would be told about the allegations, F.C. 

cried hysterically and begged her not to tell Stepfather. 

After speaking to F.C., Herken met with Mother and reviewed the allegations in 

the report. Mother confirmed that Stepfather walked around the house naked, but she said 

it usually happened at night because he preferred to sleep naked. Mother said F.C. told 

her that she was uncomfortable with Stepfather walking around naked, but Mother had 

forgotten to talk to Stepfather about it. Mother also said she believed Stepfather had a 

drinking problem and that she might have been naïve to the situation. Mother denied 

being afraid of Stepfather but confirmed she had spoken to someone at the Community 

Service Center when things were "'really bad.'" Mother said she was there when 

Stepfather made F.C. stand in the snow, but it lasted only five minutes. Mother told 

Herken she also recorded Stepfather removing F.C.'s bed "'in case anything was to ever 

happen.'" Herken said Mother appeared fearful while she talked to her. 

Herken proposed a safety plan for Mother. That plan, effective February 21 to 

March 21, 2018, stated that Stepfather was not to be left alone with any of the children 

and if an altercation occurred, Mother was to intervene and call police. Mother signed 

the safety plan. 

On February 21, 2018, Mother, Stepfather, F.C., and her two younger siblings had 

a family meeting and told Stepfather they did not want him to drink anymore. Stepfather 

agreed he would stop and poured out the bottle of alcohol he had. The family also 

discussed Stepfather's nudity and he agreed to stop walking around naked. 

A week later, Herken followed-up with F.C. F.C. told Herken about the family 

meeting and said things were getting better. F.C. said Stepfather had stopped drinking 

and was now wearing clothes around the house. After speaking to F.C.'s siblings, Mother 
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spoke with Herken and told her about the family meeting. Mother stated Stepfather 

agreed to stop drinking at the meeting and poured out his Crown Royal that night. When 

asked, Mother admitted that she had violated the safety plan but said she did not know it 

was still in effect. No evidence showed how or when Mother violated the safety plan. 

On March 5, 2018, Herken received a report that Stepfather had physically and 

emotionally abused F.C. and her sister, but the report contained the same allegations F.C. 

had reported to Herken in her initial interview. 

On March 13, 2018, F.C. completed a child advocacy interview.We relate here 

her statements during that interview. Stepfather once made her stand in the snow and 

made her do push-ups. Stepfather once got drunk and came into her room and tickled her 

stomach, which made her uncomfortable. And once after the family had gone sledding

and she complained that her butt was cold, Stepfather touched her butt, making her 

"uncomfortable."

Stepfather came into the bathroom almost every time she showered. F.C. would 

try to cover herself up when Stepfather did so. Stepfather does not allow the bathroom 

door to be locked or a shower curtain to be put up; instead, there is only a sheer shower 

curtain liner. This is because Stepfather wants to know what they are doing in the 

bathroom. Stepfather had come in nude sometimes and had told them they should all 

walk around naked because it was normal. 

F.C. once saw Stepfather masturbating in his bedroom and once saw on his

computer that he had been searching for pornography. She once went shopping at 

Victoria's Secret without Stepfather and when she returned home, he made her show him 

what she bought. He then commented that he wished Mother would buy things like that. 

This made her uncomfortable. She felt safe at home as long as Stepfather was not there. 
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After the interview, Herken determined that a new safety plan was necessary. On 

April 2, 2018, Mother came to her office to discuss it. In the new plan, the children were 

not to be exposed to nudity by adults and were to have privacy in the restroom;

appropriate disciplinary methods were to be used; and the family was to accept Family 

Preservation Services. Thus, the plan required adults to be fully clothed in the home, 

allowed F.C. to lock the bathroom door, prohibited Stepfather from entering the 

bathroom anytime F.C. was using it, and required use of an opaque shower curtain. After 

Herken presented the safety plan, Mother said she wanted to have someone look at it 

before she signed it. Herken told Mother she had 24 hours. 

Mother contacted Herken about 48 hours later, saying she wanted some parts of 

the plan changed because they were "unreasonable." Mother wanted to remove the part 

allowing F.C. to lock the bathroom door, because it was a safety concern. Mother also 

wanted to remove the portion preventing Stepfather from entering the restroom while 

F.C. was in there because Stepfather might need to enter the restroom while F.C. was

only brushing her teeth. Mother also refused Family Preservation Services for "privacy 

reasons" and did not want to go through a year-long process. Herken said she was unsure 

if the plan could be changed but she would talk to her supervisor. Herken never got back 

to Mother about that, however, and instead sent the case to the county attorney. 

On April 9, 2018, the State petitioned the court to deem F.C. a CINC. The State 

asserted that F.C. fit the definitions of a CINC because (1) she was without adequate 

parental care, control, or subsistence, a condition not due solely to her parents' or 

custodian's lack of financial means; (2) she was without the care or control necessary for 

her physical, mental, or emotional health; or (3) she had been sexually abused or 

physically, mentally, or emotionally abused or neglected. See K.S.A. 2019 Supp. 38-

2202(d)(1)-(3). On April 10, 2018, F.C. was removed from the home. Herken received a 

call from F.C.'s placement stating that F.C. wanted her guardian ad litem to know she did 
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not feel safe returning home. On April 17, 2018, Mother emailed Herken, stating that she 

wanted to sign the safety plan. 

On December 4 and 20, 2018, the district court held an adjudication hearing. At 

the hearing, Herken testified to her investigation. She had no information that Stepfather 

continued to drink after he said he would stop at the family meeting in February. F.C. did 

not tell her that Stepfather was still walking around naked, but F.C. had mentioned to

"somebody else" that he was. 

When asked why she requested the family participate in family preservation 

services, Herken said family preservation would have allowed her to "monitor the case."

When asked again what part of family preservation services would help the family,

Herken replied they "offer counseling and things like that, but it's harder for DCF to stay 

involved with outside services than it would be with family preservation." Herken left 

F.C.'s younger siblings in the home because they had not expressed any fear of being

there, and they were not going through puberty, as F.C. was.

Alyssa Blyden, a trained forensic interviewer at the Leavenworth Child Advocacy 

Center, conducted F.C.'s forensic interview on March 13, 2018. Blyden testified to the 

statements F.C. made at the interview, as reflected above. And the forensic interview was 

also admitted at the adjudication hearing.

F.C.'s testimony

F.C. testified for the State. We summarize her testimony here. She first told a 

friend around Halloween thatshe was afraid to be at home and that "things were pretty 

rough." She was in trouble around that time but that was not the reason she talked to her 

friend about what was going on. She told people that Stepfather walked around without 

clothes and had been doing so for as long as she could remember. She would see him
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naked when she came downstairs to go to the bus stop in the morning, and again in the 

afternoon when he came home and took off his uniform before going upstairs. That had 

always made her uncomfortable but as she got older it made her even more so.

F.C. had told Mother she was uncomfortable with Stepfather walking around 

naked. Mother suggested that F.C. talk to Stepfather about it, but F.C. was too 

uncomfortable to do so. Stepfather said that they should all be comfortable with their own 

bodies and that everyone should run around the house naked. When asked if this 

statement made her feel uncomfortable, she said she did not really think anything of it at 

the time. When asked again when she began to be uncomfortable with Stepfather's 

nudity, F.C. said at the beginning of eighth grade. 

As for the shower allegations, Mother would not allow them to lock any doors so 

Mother could make sure F.C. was not "messing around in the bathroom." Stepfather 

would "sometimes" come into the bathroom while she was naked in the shower and 

"randomly talk to [her.]" There was only a sheer shower curtain up so when Stepfather 

would come in, she would try to turn away so he could not see her. Sometimes Stepfather 

would come in naked and other times he was clothed. Overall, she was "really 

uncomfortable" with Stepfather coming into the bathroom. Her parent's shower also had 

only a sheer curtain liner. F.C. admitted that both Stepfather and Mother would come into 

the bathroom pretty regularly when all the children, not just her, were in the shower for 

various reasons,such as telling them to hurry up due to the shortage of hot water or 

because it was dinner time. But Mother would not look at her, and she would knock 

before entering. 

Stepfather drank a lot, especially on the weekends, and he became "really angry." 

F.C. talked to Mother about this but "[they] were all scared" and F.C. knew Mother tried 

to get him to stop drinking before but he refused. Stepfather would get angry and short 

tempered when he drank and once, on Christmas, he got angry and threw a laptop that hit 
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F.C.'s sister's leg. On cross-examination, F.C. agreed that Stepfather did not intentionally 

throw the laptop at her sister but had swiped it out of the way, causing it to hit her sister's 

leg. As to Stepfather’s drinking, after the family meeting in February, Stepfather poured 

out his bottle of Crown Royal and she had not seen him buy more. 

As for the time she had to stand in the snow, F.C. was outside for 5 or 10 minutes. 

Before the incident, F.C. had told Stepfather something like thatshe hated him and did 

not want to have anything to do with him. She also had just had a fight with her sister and 

was told that she needed to "cool off." After she came in, Stepfather told her to come 

back inside and she said "okay" instead of "'yes, sir,'" so Stepfather made her do pushups. 

She and her siblings were supposed to say "'yes, sir'" and "'yes, ma'am.'" After the 

pushups, Stepfather pushed her against the wall and she told him she was sick of the way 

he was treating them. Stepfather said if she did not like what he provided for her then

they could do it this way. Stepfather then removed her bed and her door, told her she 

could not use electricity, and took away her TV and phone. Stepfather set up a cot in her 

room, which F.C. slept on from December 28 untilJanuary 1. 

Two nights before F.C. testified, Mother told her that she should tell people that 

she wanted to come home because it was the only way she could see her grandma who

has cancer. F.C. told Mother she did not talk about what she would testify to, and Mother 

told her to tell the court she wanted to come home "only if [she] wanted to."

Mother’s testimony

Mother testified that she has three children including F.C., the oldest. For

discipline, they normally just take away cell phones or a privilege such as going to a 

friend's house or a birthday party. F.C. had outgrown spankings a few years ago, so now 

on rare occasions she would have to do pushups. F.C. has had to do pushups only about 

six times in her life.
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The night F.C. stood outside, F.C. had been in a fight with her sister and then 

smarted off. She estimated that F.C. was out on the deck for maybe five minutes. F.C. 

was not in any type of danger at the time and did not have any injury when she came in. 

Stepfather gave F.C. the choice of sleeping on the floor or the cot and Stepfather talked to 

her about not feeling like she is owed nice things. Stepfather took the lamp, but F.C. still 

had an overhead light. This occurred on December 29 and she and Stepfather gave F.C.

her things back on January 1.

As for the shower allegations, in past houses, they had a larger water heater but 

now they lived on post with one small hot water heater for the whole house. Mother told 

the children that since all five family members wanted to shower before bed, they had to 

get in and get done quickly so everyone could have hot water. To conserve water, Mother 

suggested that the kids turn the water on, then turn it off to shampoo and lather, and then 

turn the water on again to rinse off. Either Mother or Stepfather would go to the threshold 

of the bathroom and tell the kids to hurry up if they were taking too long. It is a house

rule that the children cannot lock themselves in the bathroom. Mother related an incident 

when F.C. locked herself in the bathroom with her laptop.

Since the family meeting on February 21, Stepfather had drunk alcohol only 

once—accidently during communion at church when the cups got mixed up. Since the 

family meeting, things had been different. Stepfather was more involved and they all 

seemed to be getting along better. Stepfather no longer walks around naked. Mother 

believes she could stand up to Stepfather if there were an issue in the house. And Mother 

has since put up regular shower curtains in both bathrooms. 

Mother admitted that F.C. is not a terrible girl—she was just getting in trouble for 

normal teenage girl situations. For example, after the snow incident, in mid-January, F.C. 

got in trouble for downloading Snapchat. Mother also recalled that on Halloween 2017, 

F.C. was supposed to be home by 9 p.m. and she missed curfew, so Mother called her and 
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told her to come home but F.C. did not. Stepfather went to look for her and found her 

with her boyfriend at a park, so they took her phone away.

As to the second safety plan, Mother explained that she took it to an attorney on 

post, but the attorney was gone that day and did not get back to her until the next day. 

Mother told the lawyer that she did not want to sign it if she was not going to uphold it 

and the attorney agreed. Mother called Herken and told her that she wanted to make a 

few changes because she did not want to sign it unless she would uphold it. Mother 

wanted to change the door lock provision, the provision preventing Stepfather from 

entering the bathroom if F.C. was in it, and the family preservation services. Mother 

wanted to change the requirement that Stepfather could not enter the bathroom in case 

Stepfather accidentally violated it by going to ask her a question while she was just in 

there brushing her teeth. Regarding family preservation services, Herken did not tell 

Mother how that could help the family; instead,she was told that it would allow DCF to 

check up on the family. Mother expected Herken to get back to her and let her know if 

her proposed changes were okay, but she never did. Had Herken told Mother that F.C. 

would be removed if she did not sign the safety plan, Mother would have done family 

preservation services "or whatever else," because F.C. is more important.

The district court's decision

After all the evidence was presented, the district court found F.C. to be a CINC 

because she was without the care or control necessary for the her physical, mental, or 

emotional health and she has been physically, mentally, or emotionally abused. The

district court found that F.C. was subjected to emotional abuse because of Stepfather's 

regular nudity and his walking in on her while she was in the shower. The district court 

also felt Stepfather's taking the door off the hinges and removing the bed was discipline 

that was "over the edge" and constituted emotional abuse. The district court said he 

thought both F.C. and Mother were afraid of Stepfather as shown in their faces when they 
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discussed his drinking. The district court said he believed F.C. and found her to be 

credible and compelling. The district court also mentioned that Mother had failed to take 

corrective measures "until late in the game." Mother timely appeals.

Analysis

For an order adjudicating a child to be a CINC, "[t]he petitioner must prove by 

clear and convincing evidence" that the child is a CINC under one of the statutory criteria 

enumerated in K.S.A. 2019 Supp. 38-2202(d). K.S.A. 2019 Supp. 38-2250. The district 

court relied on K.S.A. 2019 Supp. 38-2202(d)(2) and (3), finding F.C. to be a CINC 

because she: "(2) is without the care or control necessary for the child's physical, mental 

or emotional health; [and] (3) has been physically, mentally or emotionally abused or 

neglected or sexually abused."

Mother argues that clear and convincing evidence does notsupport the district 

court's findings. Clear and convincing evidence is necessary:

"[W]hen an appellate court reviews a trial court's determination that a child is a child 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). 

Evidence is clear and convincing if "the factfinder believes that the truth of the facts 

asserted is highly probable." 286 Kan. at 697. When we review challenges to the 

sufficiency of evidence, we do not pass on the credibility of witnesses, weigh conflicting 

evidence, or redetermine questions of fact. 286 Kan. at 705.
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There is not sufficient evidence to support the district court's conclusion that F.C. was 

without the care or control necessary for her physical, mental, or emotional health.

Mother first challenges the district court's conclusion that F.C. was without the 

care or control necessary for her physical, mental, or emotional health. Mother argues 

that Stepfather stopped drinking when the family confronted him aboutsix weeks before 

the State filed the CINC petition, and no one denied that Stepfather had quit drinking,

aside from the one incident where he accidentally drank communion wine at church.

The State argues thatsufficient evidence shows that F.C. lacked the proper care or 

control because it was improper for a grown adult to walk around naked in front of a 13-

year-old girl and to walk in on her while she was in the shower. The State argues that 

although Stepfather stopped drinking in February, this did not solve the issues of him 

walking around naked or walking in on F.C. in the shower. Further, the State argues that 

F.C. told her Mother about these incidents and Mother refused to stop it from happening. 

As a preliminary matter, although the district court cites K.S.A. 2019 Supp. 38-

2202(d)(2) for finding that F.C. is a CINC, the district court did not make any specific

findings on the care and control of F.C. Instead, the district court made explicit findings

only on emotional abuse. Its only statements that we could interpret as addressing the 

parental care and control are:

• "I just don't know very many people that would say it's okay to raise a child by 

running around naked;" and

• "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."
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Nevertheless, this court will examine the entire record, in the light most favorable to the 

State, to determine whether sufficient evidence supports the district court's conclusion 

that F.C. was a CINC under K.S.A. 2019 Supp. 38-2202(d)(2).

The State relies on the allegations originally reported by F.C. to establish that she 

was without proper care and control.But in determining whether a child is a CINC under 

K.S.A. 2019 Supp. 38-2202(d)(2), as here, the district court should examine the child's 

circumstances existing on the date of the adjudication hearing. In re D.H., 57 Kan. App. 

2d 421, 429, 453 P.3d 870, 876 (2019),rev. denied 311 Kan. ___ (February 27, 2020).

"[W]e conclude the temporal scope of the circumstances to be considered by the district court in 

deciding whether to adjudicate a child as one in need of care must be based on the plain language 

of the statutory criteria upon which the court is making the adjudication decision. If the statutory 

criterion is framed in the present perfect tense, then the adjudication decision will depend upon a 

view of the child's circumstances in the past and perhaps continuing to the present. If the statutory 

criterion is framed in the present tense, then the adjudication decision will depend upon a view of 

the child's present circumstances existing on the day of the adjudication hearing." 57 Kan. App. 

2d at 429, 453 P.3d at 876-77.

At the time the CINC petition was filed in this case, K.S.A. 2019 Supp. 38-2202 

defined a child in need of care as:

"(d) a person less than 18 years of age at the time of the filing of the petition or 

issuance of an ex parte protective custody order . . . who:

(2) is without care or control necessary for the child's physical, mental or 

emotional health."

This ground in (d)(2) depends on a view of the child's circumstances in the present. 

"Although the 'present circumstances' may encompass circumstances existing on the date 

the petition was filed, the court's adjudication decision on whether a child is one in need 

of care should be based on the circumstances existing on the date of the adjudication 
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hearing." In re D.H., 57 Kan. App. 2d at 429, 453 P.3d at 876.Because (d)(2) is written

in the present tense, the court's adjudication decision whether a child is in need of care 

should be based on the circumstances existing on the date of the adjudication hearing. We 

recognize that F.C. was out of the home for over seven months before the adjudication 

hearing. Although we do not ignore the circumstances on the date the petition was filed, 

we focus on the circumstances in the home on the date of the adjudication to determine 

whether F.C. was without the required care and control.

Even assuming, without deciding, that Stepfather's drinking and nudity could

establish that F.C. was without proper care and control, the record does not support a 

finding that those conditions were ongoing at the time of the adjudication hearing in 

December of 2018.

The evidence established that Stepfather had not drunk alcohol, aside from 

communion, since the family meeting on February 21, 2018. Both F.C., whom the district 

court found to be credible, and Mother testified to this fact. Similarly, Herken had

received no reports of Stepfather drinking after the family meeting. Further, F.C. and 

Mother stated that at the family meeting, Stepfather also agreed to stop walking around 

naked. Mother testified that Stepfather no longer walked around naked, and F.C. told 

Herken at her February 28 interview that Stepfather was wearing clothes now. The only 

evidence that Stepfather continued to walk around naked after the family meeting was 

Herken's testimony that F.C. had told "somebody else" he still walked around naked. But 

the record contains no evidence about when F.C. made this statement or what timeframe 

she was speaking about. So even taking that evidence in the light most favorable to the 

State, we find no evidence that Stepfather continued to walk around naked after being 

told F.C. was uncomfortable with it. Thus, the evidence does not establish that Stepfather

was still drinking or walking around nude at the time of the adjudication hearing. 
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This leaves us with evidence about Stepfather entering the bathroom while F.C. 

was showering. That evidence is not specific as to when it occurred, how often it 

occurred, or why Stepfather entered the bathroom. Stepfather apparently considered 

nudity in one's own house to be acceptable and appropriate for a long time, thus he

presumably did not consider his going into the bathroom while F.C. was showering to be 

unacceptable or inappropriate. No evidence shows that anyone told Stepfather this 

behavior upset F.C., and since he had been doing so without objection for a long time, he 

could reasonably have inferred that no one had a problem with it. No evidence shows that 

Stepfather continued to enter the bathroom when F.C. was showering after the family 

meeting in February, although she remained in the house for another six weeks or so 

before the CINC petition was filed and she was removed. This indicates that Stepfather 

also reformed that objectionable behavior when he realized it was offensive to F.C.

Further, the State argues that F.C. was without care and control because Mother 

failed to address these issues with Stepfather and failed to follow the safety plans. But the 

evidence establishes that long before the December adjudication hearing, Mother had 

addressed these issues with Stepfather at the family meeting in February. Mother also

testified that she put up opaque shower curtains in both bathrooms. The district court 

inherently recognized in its ruling that Mother had taken corrective action before the 

adjudication hearing, although it considered the action to have occurred "late in the 

game." Yet, the record contains no evidence that Mother had failed to act to protect F.C. 

at the time of the adjudication hearing.

The State failed to present any evidence of the care and control F.C. was or was 

not receiving at the time of the adjudication hearing and even expressed that it thought 

such evidence was irrelevant. At the hearing, Stepfather's attorney asked Mother how 

Stepfather was now acting. After Mother answered a few questions stating that Stepfather 

no longer drank, did not walk around naked, and was more involved, the State objected,

arguing that it did not "believe [the evidence was] relevant to the adjudication and what 
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was going on at the time of the petition." However, as stated above, for the district court 

to correctly find a child a CINC under K.S.A. 2019 Supp. 38-2202(d)(2), the State had to 

prove by clear and convincing evidence that the child was without the care or control 

necessary for her physical, mental, or emotional health at the time of the adjudication 

hearing. See In re D.H., 57 Kan. App. 2d at 429, 453 P.3d at 876. Thus, evidence of the 

care and control F.C. was receiving at the time of the adjudication was not only relevant 

but also critical to adjudicating F.C. a CINC under K.S.A. 2019 Supp. 38-2202(d)(2).

The record fails to show clear and convincing evidence supporting the district 

court's finding that F.C. was a CINC under K.S.A. 2019 Supp. 38-2202(d)(2). Therefore, 

the district court erred in adjudicating F.C. a CINC under this subsection.

There is not sufficient evidence to support the district court's conclusion that F.C. has 

been emotionally abused. 

The district court additionally found F.C. a CINC under K.S.A. 2019 Supp. 38-

2202(d)(3). That subsection defined a "child in need of care" as a person less than 18 

years of age at the time of filing of the petition who "(3) has been physically, mentally or 

emotionally abused or neglected or sexually abused." (Emphasis added.) Both Mother 

and the State agree that there was no allegation or finding of sexual or physical abuse. 

Instead the district court's finding under K.S.A. 2019 Supp. 38-2202(d)(3) relied on 

alleged emotional abuse.Because this subsection, unlike K.S.A 2019 Supp. 38-

2202(d)(2), uses the present perfect tense in defining who is considered a child in need of 

care (one who "has been" abused), we review the child's circumstances in the past and the 

present instead of focusing more heavily on the child's present condition. In re D.H., 57 

Kan. App. 2d at 429, 453 P.3d at 876.

The district court determined that F.C. suffered emotional abuse based on: 

Stepfather's "running around nude"; Stepfather's "walking in on" F.C. while she was in 
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the shower; F.C. "walking in on" Stepfather while he was masturbating; and Stepfather's 

"over the edge" discipline of taking the door off the hinges, removing her bed, and not 

letting F.C. use electricity. Mother argues that these acts do not show emotional abuse. 

The State argues that the record contains sufficient evidence that F.C. suffered 

emotional abuse because:

• F.C. was hysterical when she first spoke about Stepfather and said she did 

not feel safe in her home when Stepfather was there; and

• F.C. testified that she was "uncomfortable" with Stepfather walking around 

naked and coming into the bathroom while she was in the shower. 

The State argues that although F.C. used the word "uncomfortable," it requires little 

inference to believe that a 13-year-old girl would suffer "emotional harm" from these 

situations. 

Although the State's speculation may be reasonable, it fails to constitute clear and 

convincing evidence of emotional abuse. "'Physical, mental or emotional abuse' means 

the infliction of physical, mental or emotional harm or the causing of a deterioration of a 

child and may include, but shall not be limited to, maltreatment or exploiting a child to 

the extent that the child's health or emotional well-being is endangered." K.S.A. 2019 

Supp. 38-2202(y). Harm is defined as "physical or psychological injury or damage." 

K.S.A. 2019 Supp. 38-2202(l).Based on the plain language of these statutes, to support a 

finding of emotional abuse the State must present evidence that Mother or Stepfather 

inflicted emotional harm on F.C.—psychological injury or damage—or caused her 

deterioration.

Although a psychological evaluation is not necessary, some evidence must show 

that Mother and/or Stepfather inflicted emotional harm on F.C. See, e.g., In re A.H., 50 
18

Kan. App. 2d 945, 948, 951, 334 P.3d 339 (2014) (finding emotional abuse when a child 

witnessed domestic violence between mother and father and then began to exhibit violent 

behavior towards mother); In Interest of A.M.D., No. 117,320, 2017 WL 3001352, at *2-

3 (Kan. App. 2017) (unpublished opinion) (finding a teacher's description of the child's 

appearance as crying and distraught was fully consistent with a finding of emotional 

harm—the child was visibly upset).

The only evidence that F.C. suffered psychological injury, damage, or 

deterioration was her statement that Stepfather's actions made her feel "uncomfortable." 

But neither F.C. nor any other witness testified to her crying, being upset, or having any 

other emotional reaction to Stepfather's acts. True, Herken, the DCF investigator, testified 

that she concluded F.C. was frightened when F.C. told her what had been happening at 

home. Herken testified that F.C. became hysterical when she thought what she had said 

would be shared with Mother and Stepfather. Although that suggests a significant 

emotional impact, F.C.'s reaction was to the potential disclosure of her statements, which 

could involve a host of factors, and was not a direct reaction to acts Mother or Stepfather 

had inflicted on her. The record thus lacks specific evidence that F.C. suffered 

psychological injury, damage, or deterioration because of Stepfather's acts.

And Stepfather's acts, although unusual and concerning, are not severe or 

persistent enough for us to find that they necessarily inflicted emotional harm on F.C. 

Although F.C. saw Stepfather masturbating one time, he was in his bedroom and the 

evidence fails to show he knew F.C. was home or that he intentionally left his door open. 

Stepfather's taking F.C.'s door off the hinges, removing her bed, and not letting F.C. use

electricity were acts of discipline which, although severe, were short-term and did not 

deprive F.C. of essentials. Stepfather's nudity was not suggested to be for the purpose of 

sexual arousal but was evidently a longstanding habit he believed was healthy; 

nonetheless, he stopped when he realized it made F.C. uncomfortable. Similarly, the 

evidence shows that the family practice was to permit other family members to enter the 
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bathroom when one was showering. Stepfather apparently did so without making F.C.

uncomfortable when she was younger. And the evidence fails to show that Stepfather 

continued to enter the bathroom when F.C. was showering after the family meeting in 

February.

Even viewing the record in the light most favorable to the State, we find a lack of

clear and convincing evidence that F.C. was emotionally abused. We cannot uphold the 

district court's conclusion that F.C. was a CINC under K.S.A. 2019 Supp. 38-2202(d)(3).

In sum, upon review of the evidence in the light most favorable to the State, we 

conclude that the district court's adjudication of F.C. as a child in need of care under 

K.S.A. 2019 Supp. 38-2202(d)(2) and (d)(3) is not supported by clear and convincing 

evidence. Accordingly, we reverse the adjudication and remand the matter to the district 

court with directions to dismiss the CINC proceeding, restore legal custody to Mother, 

and give Mother physical custody of F.C. See K.S.A. 2019 Supp. 38-2251(a) ("If the 

court finds that the child is not a child in need of care, the court shall enter an order 

dismissing the proceedings.").

Reversed and remanded with directions.