                          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-year-
old 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



                                                   1
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.


                                             2
       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

                                             3
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.


                                             4
       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


                                              5
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 that she 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

                                             6
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

                                             7
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 that she 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 until January 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.

                                               8
       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

                                             9
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

                                            10
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 not support 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.




                                                    11
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 about six 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 that sufficient 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."




                                             12
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

                                                    13
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.




                                             14
       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

                                             15
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

                                             16
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
                                              17
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

                                            18
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.




                                              19
