                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,873

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                IN THE INTEREST OF C.B., A.C.B.,
                                          and A.E.B.,
                                         Minor Children.


                                  MEMORANDUM OPINION

       Appeal from Jackson District Court; NORBERT C. MAREK, JR., judge. Opinion filed April 10,
2020. Affirmed.


       Alexandria S. Belveal, of Holton, for appellant.


       Keith M. Hill, assistant of county attorney, and Shawna Miller, county attorney, for appellee.


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


       PER CURIAM: This is an appeal from three consolidated cases brought under the
revised Kansas Code for Care of Children, K.S.A. 2019 Supp. 38-2201 et seq. After an
evidentiary hearing, the district court issued an order adjudicating three siblings—C.B.,
A.C.B., and A.E.B.—to be children in need of care. Their mother appeals the district
court's decision in each case. On appeal, she contends that the decisions were not
supported by clear and convincing evidence in the record. She also contends that the
district court erred because there was no evidence that the abuse was still occurring in the
home. For the reasons set forth in this opinion, we find that there is clear and convincing
evidence in the record on appeal to support the district court's decision. Thus, we affirm.




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                                           FACTS

       On February 28, 2019, the State filed three child in need of care (CINC) petitions,
alleging that C.B., A.C.B., and A.E.B. were children in need of care. The petitions
alleged that the minor children were without adequate parental care, control or
subsistence; that they were without the care or control necessary for their physical,
mental, or emotional health; that they had been physically, mentally, or emotionally
abused or neglected or sexually abused; and that they had been residing in the same
residence with a sibling or another person under 18 years of age, who had been
physically, mentally, or emotionally abused, neglected, or sexually abused.


       Moreover, the CINC petitions alleged that a detective in the Jackson County
Sheriff's Office filed for protective custody of C.B. on February 26, 2019, after she
disclosed during a "safe talk" interview that she had been the victim of sexual assault by
her older brothers and that she had made comments regarding contemplating suicide. In
addition, the petitions alleged that a Jackson County Sheriff's Deputy had also applied for
protective custody of A.C.B. and A.E.B. because he believed they would continue to be
victims of sexual abuse if they remained in the home.


       A review of the record reveals that C.B. told the detective that she and her sisters
had been sexually assaulted by their brothers separately and together on numerous
occasions up to three or four times a week. C.B. indicated that the abuse happened both
inside their home as well as in a field beside the house. Although we will not discuss all
of the details in this opinion, C.B. reported that she had been woken up by one of her
brothers having various types of sex with her in the middle of the night. According to
C.B., her parents had caught her brothers sexually assaulting her and her sisters several
times but never reported the incidents to authorities.




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       C.B. stated that she had a bad relationship with her father, alleging both physical
and verbal abuse. She also said that her father told her he was "disappointed in [her]" for
reporting the abuse. Additionally, C.B. indicated that she had reported the abuse in the
home to one of her uncles as well as to a babysitter. Likewise, C.B. said that she told her
priest about the abuse and he advised her to report it to the authorities. C.B. asserted that
her mother told her she could report the abuse but refused to take her to make a report.


       On April 16, 2019, the district court held an adjudication hearing regarding the
three minor children. Prior to the hearing, the guardian ad litems for the children and the
natural father entered into written stipulations and no contest statements. However, the
children's mother contested the allegation that the children were in need of care. At the
hearing, the mother testified that she homeschools her children during the week, and that
their father is a truck driver. When the father is home on weekends, the mother works as
a nurse.


       The mother testified that there were ten children in the family, and she thought six
of them had alleged sexual abuse in the home at some point. She claimed that her father-
in-law, who is deceased, had sexually abused two of her sons when they were children.
The mother testified that she only recently became aware of that abuse but acknowledged
that it could have been stopped if it had been reported earlier.


       In addition, the mother testified that she became aware of the alleged abuse against
C.B., A.C.B., and A.E.B. around Christmas in 2018. At that time, C.B. told her mother
that her older brothers had sexually abused her and her sisters for several years.
According to the mother, C.B. told her the abuse occurred between seven and nine years
ago, but C.B. later told her that the abuse had happened as recently as five years ago.
However, the mother did not report the abuse to law enforcement. Instead, she testified
she felt their father should address the abuse.


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       In early 2019, C.B. reported the abuse to a babysitter, a priest, and an uncle. When
these individuals attempted to intervene, the mother reacted defensively, testifying that
she told the babysitter that she would not work for her again and calling the priest a
"backstabber." Later, when an aunt intervened, the mother also called her an "enemy."
When asked at trial whether she made these statements, she did not deny doing so. The
mother testified that she was concerned that one of her sons, who had a history of
violence and was no longer living in the home, would react violently or become suicidal
if word about the abuse was made public. Moreover, the mother testified that she was
concerned about "small town" gossip about such a serious allegation.


       Although she did not report the abuse to law enforcement, the mother testified that
she privately confronted the son who was still living in the house about the allegations.
She stated that he told her that he had also been sexually abused by the older son in the
past. According to the mother, when she asked the son who still lived at home about the
allegations made by his sister, he became depressed and stayed secluded in his bedroom
for several days.


       When questioned regarding her knowledge of the abuse allegedly suffered by
C.B., A.C.B., and A.E.B., the mother initially testified that she did not witness any abuse
in the home. However, she later admitted that she recalled one incident where she
suspected something unusual. Specifically, the mother testified that she had once walked
into the girl's bedroom and saw her older son—who was 13 or 14 years old at the time—
on top of one of his younger sisters—who was 8 years old at the time.


       When the State questioned the mother about the specific allegations in this case,
she testified as follows:


       "Q: And you're aware that your daughters . . . have been sexually abused, correct?
       "A: That's what's been alleged.


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       "Q: So do you believe them or not?
       "A: I believe something happened, yes.
       "Q: Do you believe they were sexually abused or not?
       "A: If you're going to make me say yes or no because—okay. Yes.
       "Q: And you understand that the allegation is that [one of your son's had sexual
       intercourse with one of your minor daughters], correct?
       "A: I did not—[C.B.] did not go into great detail, so you know a lot more about that than
       I do. She did not go into great detail with me about what happened.
       "Q: Do you have any reason to believe that is not the allegation?
       "A: No.
       "Q: And you understand that the allegation is also that your son [had anal intercourse
       with your daughter]; correct?
       "A: Yes, that's--yes, that's true.
       "Q: And you believe [C.B.] when she says that this happened, correct?
       "A: Yes."


       Later, the mother testified that she was not disputing that all three minor children
had been sexually abused by their older brothers. The mother also acknowledged she was
aware that criminal charges had been filed against her sons. At that point in the
proceedings, the guardian ad litem for A.C.B. and A.E.B. requested that the district court
enter a judgment that the minor children were children in need of care under K.S.A. 2019
Supp. 38-2202(d)(3) because they had been "sexually abused."


       After considering the evidence, the district court found that clear and convincing
evidence had been presented to show that C.B., A.C.B., and A.E.B. had each been
sexually abused. As a result, the district court found them to be children in need of care
under K.S.A. 2019 Supp. 38-2202(d)(3) and (d)(11). In so ruling, the district court further
found that the caselaw does not put a temporal limit on a CINC finding. Thereafter, the
mother filed a timely notice of appeal.




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                                         ANALYSIS

       In this appeal, the mother raises two issues. First, she challenges the sufficiency of
the evidence to support the district court's determination that the three minor children
were children in need of care. Second, she challenges the district court's application of the
CINC statutes to reach abuse that was no longer occurring in the home. In response, the
State argues that there is clear and convincing evidence in the record to support the
district court's determination and that under the circumstances presented, a CINC finding
was appropriate.


Sufficiency of the Evidence

       CINC actions stem from the State's interest in protecting the safety and welfare of
children within its jurisdiction. See K.S.A. 2019 Supp. 38-2201(a) (proceedings under the
Code "deemed to be pursuant to the parental power of the state"); and K.S.A. 2019 Supp.
38-2201(b)(1) ("safety and welfare of a child to be paramount in all proceedings under
the code"). To obtain an order adjudicating a child to be in need of care, the State "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. Although a CINC adjudication is a beginning step in the process and is often
followed by attempts to reunify the child with the parent pursuant to K.S.A. 2019 Supp.
38-2251(b), a parent may appeal the adjudication of his or her child as being in need of
care under K.S.A. 2019 Supp. 38-2273(a).


       In reviewing a district court's finding that a child is in need of care, we must
consider all of the evidence in the light most favorable to the State determine whether
there is clear and convincing evidence from which a rational fact-finder could reach this
conclusion. See K.S.A. 2019 Supp. 38-2250; 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


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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.


           The statutory definition of "child in need of care" is found in K.S.A. 2019 Supp.
38-2202(d). Here, the district court found that the minor children were in need of care
pursuant to K.S.A. 2019 Supp. 38-2202(d)(3), which defines a child as being in need of
care who "has been physically, mentally or emotionally abused or neglected or sexually
abused." The district court also found them to be in need of care pursuant to K.S.A. 2019
Supp. 38-2202(d)(11), which provides that a child as being in need of care who has "been
residing in the same residence with a sibling . . . who has been physically, mentally or
emotionally abused or neglected, or sexually abused."


           In support of its conclusion that all three minor children were in need of care, the
district court heard testimony from the mother in which she acknowledged that as many
as six of her ten children had been sexually abused by other family members at some
point in time. In addition, when asked whether she had reason to doubt the allegations
made by the three minor children, the mother testified that she did not. Further, and
perhaps most troublingly, the mother testified that she did not report any of the abuse to
authorities and admitted that she resisted efforts by third parties to bring C.B.'s
allegations of abuse to light. Finally, the district court noted the ongoing criminal
proceedings against the two brothers who allegedly perpetrated the abuse of C.B. and her
sisters.


           Based on our review of the evidence in the light most favorable to the State, we
conclude that a reasonable fact-finder could determine that there is clear and convincing
evidence that the three minor children were in need of care under K.S.A. 2019 Supp. 38-
2202(d)(3) and (11); see In re A.H., 50 Kan. App. 2d 945, 946, 334 P.3d 339 (2014). This
does not mean that the minor children cannot at some point be reintegrated into the
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family home nor does it mean that the parents parental rights should be terminated. It
does, however, mean that the district court took reasonable steps to protect the safety and
welfare of C.B., A.C.B., and A.E.B.


Application of K.S.A. 2019 Supp. 38-2202(d)(3) and (d)(11)

       Next, the mother challenges the district court's application of the provisions of
K.S.A. 2019 Supp. 38-2202(d)(3) and (d)(11) in this case. Because this involves a
question of law, our review of this issue is unlimited. See Jeanes v. Bank of America, 296
Kan. 870, 873, 295 P.3d 1045 (2013). Furthermore, the Kansas Legislature has made it
clear that the revised Kansas Code for Care of Children "shall be liberally construed" to
carry out the public policy of protecting the safety and welfare of children. K.S.A. 2019
Supp. 38-2201(b). In particular, it is paramount to provide for the protection of children
who have been subject to physical, mental, or emotional abuse or neglect, or sexual abuse
and to encourage the reporting of suspected child abuse and neglect, or sexual abuse.
K.S.A. 2019 Supp. 38-2201(b)(3), (b)(5), (b)(7); In re A.H., 50 Kan. App. 2d at 948-49.


       Here, the mother argues that the allegations made by three of her minor children
suggest that the sexual abuse ended five years before the adjudication hearing. As such,
she argues that the CINC statutes should not be used because there is no longer abuse
taking place in the home. However, the mother does not cite any authority to support her
contention that the CINC statutes place a temporal limit on the reach of the CINC statutes
to protect children. Instead, as the district court found, we note that several panels of our
court have explicitly found that there is no such limitation.


       In the case of In re D.H., 57 Kan. App. 2d 421, 429, 453 P.3d 870 (2019), rev.
denied 311 Kan. __ (February 27, 2020), a panel of this court held:




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       "[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."


       See also In re A.M., 2013 WL 518019 at *3 (Kan. App. 2013) (unpublished
opinion) (holding that the plain language of the statute does not require the district court
to make its adjudication decision based only on the circumstances that existed on the day
of the adjudication hearing and noting that several of the provisions rely on the present
perfect tense, "has been").


       Consistent with these opinions, the district court determined that the relevant
statutory provisions, K.S.A. 2019 Supp. 38-2202(d)(3) and (d)(11), both use the present
perfect tense—"has been"—to define a child in need of care. Accordingly, we find no
error in the district court's application of those statutory provisions to find the minor
children in this case to be in need of care. Likewise, it is important to recognize that in
addition to the allegations of the repeated sexual abuse in the home in the past, the
mother admitted to avoiding, delaying, and or otherwise interfering with the reporting of
the alleged abuse to law enforcement in violation of K.S.A. 2019 Supp. 38-2201(b)(5),
which "encourage[s] the reporting of suspected child abuse and neglect."


       Affirmed.




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