                                         No. 121,131

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                   In the Interest of D.H.,
                                       A Minor Child.


                               SYLLABUS BY THE COURT

1.
       The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained.


2.
       When construing statutes to determine legislative intent, appellate courts must
consider various provisions of an act in pari materia with a view of reconciling and
bringing the provisions into workable harmony if possible.


3.
       Courts must construe statutes to avoid unreasonable or absurd results and presume
the Legislature does not intend to enact meaningless legislation.


4.
       The temporal scope of the circumstances to be considered by the 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.


                                               1
       Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed October 18, 2019.
Reversed and remanded with directions.


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


       Charlene Brubaker, assistant county attorney, for appellee.


Before STANDRIDGE, P.J., ATCHESON and SCHROEDER, JJ.


       STANDRIDGE, J.: This is an expedited appeal from a child in need of care (CINC)
proceeding under the revised Kansas Code for Care of Children (Code), K.S.A. 2018
Supp. 38-2201 et seq. Relevant here, D.H., a minor, lived with her natural father (Father)
in Hays, Kansas, from 2009 to 2018. D.H.'s natural mother (Mother) lived in Illinois
during that time period. In June 2018, Father died and the district court granted temporary
legal custody of D.H. to the Secretary of the Kansas Department for Children and
Families (DCF). The district court later issued an order of adjudication finding D.H. to be
a child in need of care. Mother appeals from the order of adjudication, arguing the court's
finding was based on evidence outside the relevant time period. Mother also argues the
court's adjudication decision is not supported by clear and convincing evidence in the
record. For the reasons stated below, we reverse the district court's order of adjudication
and remand with directions.


                             FACTUAL AND PROCEDURAL HISTORY

       D.H. was born in December 2007. Mother and D.H.'s natural father (Father) were
never married and split up not long after D.H. was born.


       In April 2008, when D.H. was almost five months old, the State filed a petition in
juvenile case number 08-JC-34 alleging that D.H. was a child in need of care. Although
the record does not reflect an exact date, the district court later issued an order of


                                                   2
adjudication in the 2008 CINC case finding D.H. to be a child in need of care as to both
Mother and Father.


       In September 2008, the district court issued an order in domestic case number 08-
DM-138, which legally established Father's paternity as to D.H. On or around the time
this order establishing paternity was filed, Mother became pregnant—but not by Father—
with another child.


       In April 2009, DCF—formerly known as the Kansas Department of Social and
Rehabilitation Services—filed a petition in domestic case number 09-DM-061, requesting
that the district court enter an order requiring Mother to pay child support and medical
expenses for D.H.


       In early May 2009, Father filed a motion to establish residency and parenting time
for D.H. Father filed this motion in both the domestic paternity case, 08-DM-138, and the
domestic child support case, 09-DM-061. In support of this motion, Father stated, in
relevant part:


                 "That the [two domestic] cases deal with child support and not residency and
       parenting time.
                 "That there is currently an ongoing CINC case involving [D.H.] Said case is Ellis
       County Case No. 08-JC-34. Said case is ready for dismissal upon orders of residency and
       parenting time being entered in [the domestic paternity case and the domestic child
       support case], as [Father] and [Mother] no longer live together.
                 "That the recommendations in Case No. 08-JC-34 [the CINC case] are that
       [Father] be granted residency and [Mother be granted] supervised visitation of one hour
       minimum per week with [D.H.]"


Father attached a proposed parenting plan to his motion. With regard to legal custody,
Father recommended that the court order joint legal custody of D.H. In support of this


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recommendation, Father expressly stated that both Mother and Father "are fit and proper
persons to have joint responsibility for the care of the minor child [and that it] is in the
best interest of the child that the parties jointly share in the care of the child." With regard
to physical custody, Father recommended that the court grant him primary physical
custody of D.H. and that Mother have at least one hour of supervised visitation per week.


       In late May 2009, the district court held a hearing on Father's motion. Father
appeared in person and with counsel. Mother appeared in person without counsel. At the
outset of the hearing, Father's attorney announced that the parties had come to an
agreement regarding residency and parenting time. Father's attorney set forth the terms of
the agreement. Although the transcript of this 2009 hearing is not in the record, it appears
from the journal entry that the agreement essentially mirrored a proposed parenting plan
attached to Father's motion to establish residency and parenting time. After verifying that
Mother agreed to the terms stated, the court granted Father primary physical custody
(residency) of D.H., with Mother having phone parenting time/visitation once a week.
The court noted that Mother could have additional parenting time if mutually agreed
upon by Father and Mother. The court further noted that Mother had the right to file a
motion to modify residency/parenting time at any time.


       On June 16, 2009, the district court filed a journal entry memorializing the rulings
on residency and parenting time as announced at the hearing in the domestic cases. On
June 19, 2009, the CINC case was dismissed.


       Soon after the May 2009 hearing, Mother moved to Granite City, Illinois. At the
time of the move, Mother was six or seven months pregnant with her second child, J.Z.
Mother said she moved because she was not financially stable, and she had no family in
Kansas to help support her. J.Z. was born a couple of months after Mother moved to
Illinois. Within his first year, J.Z. was tested and ultimately diagnosed with autism. After
this diagnosis, Mother sought out and arranged for J.Z. to receive occupational therapy


                                               4
and physical therapy. J.Z. later was diagnosed with attention deficit hyperactivity
disorder and mood disorder. After these diagnoses, Mother sought out and arranged for
J.Z. to receive family therapy and individual therapy.


       In addition to obtaining the myriad of services necessary for J.Z. after moving to
Illinois, Mother also worked to improve herself and achieve stability. Mother said that
once she achieved stability for herself and J.Z., she planned to return to Kansas to fight
for more access to D.H. After she moved to Illinois in the summer of 2009, Mother
obtained her GED, consistently attended appointments for mental health services and
medication management, gained employment as a cashier at a grocery store, obtained
housing, and obtained a vehicle and a driver's license, while at the same time being a
single parent to a special needs child whom she made sure was obtaining the various
services and therapy to integrate as much as possible into society.


       From Illinois, Mother attempted to exercise her weekly visitation rights with D.H.
but was met with resistance from Father. Mother communicated with Father about
visitation through Facebook Messenger. Most of the time, Mother would send a message
asking for a phone visit with D.H., and Father would not respond. When he did respond,
Father would give Mother a reason why the proposed visit could not take place. When
Mother requested information about D.H. in her capacity as a parent with joint legal
custody of D.H., Father did not respond. Both Mother and D.H.'s maternal grandmother
sent messages asking Father whether D.H. needed anything, but Father did not respond.
Given Father's actions effectively thwarted Mother's ability to exercise her right to have
weekly phone visits with D.H., Mother wanted to hire an attorney to help her modify her
visitation and parenting time but could not afford one.


       Mother did not see D.H. in person during the six-year period from 2009 to 2015.
In 2015, Mother traveled from Illinois to Kansas by Greyhound bus in order to spend
time with D.H. Mother returned to Kansas in 2017 to spend time with D.H.


                                             5
       Father committed suicide on June 20, 2018. D.H. was the only other person in the
house when it happened. Later that evening, a detective from the Ellis County, Kansas
Sheriff's Office completed an application to place D.H. in protective custody based on the
fact that Father was deceased and that Mother was living in Illinois and had not had
recent contact with D.H. The detective advised the district court in the application that he
had placed D.H. with her paternal grandfather in Quinter, Kansas. Although there
appeared to be no dispute that D.H. had limited contact with her grandfather over the
years, the application noted that the paternal grandfather appeared to be D.H.'s only
relative who lived in the vicinity.


       On the morning of Friday, June 22, 2018, the State filed a petition requesting the
district court find D.H. to be a child in need of care. In support of its request, the State
alleged D.H. (1) was without adequate parental care, control, or subsistence and the
condition was not due solely to the lack of financial means of the child's parents; (2) was
without the care or control necessary for the child's physical, mental, or emotional health;
and (3) had been physically, mentally, or emotionally abused or neglected or sexually
abused. In conjunction with the CINC petition, the State requested the court hold a
temporary custody hearing the following Monday, June 25, 2018, at 10:30 a.m. The
matter was scheduled as requested, and Mother was provided notice of the temporary
custody hearing by telephone on Friday afternoon, June 22, 2018.


       The temporary custody hearing was held as scheduled on June 25, 2018. Mother
traveled from Illinois to Kansas and appeared at this hearing pro se, without counsel. The
transcript of the hearing is not included in the record, but the journal entry reflects that
the district court ordered D.H. to be placed in the temporary custody of DCF.


       On January 25, 2019, District Magistrate Judge Richard Flax held an adjudication
hearing to determine whether D.H. was a child in need of care. Mother and D.H.'s
therapist testified. At the State's request, the court also reviewed the case files in 08-DM-


                                               6
138 and 09-DM-061. At the end of the hearing, Judge Flax found the State had presented
clear and convincing evidence to establish that D.H. was a child in need of care.
Although not alleged in the State's petition, Judge Flax found clear and convincing
evidence that D.H. was a child in need of care because Mother had abandoned the child.
Mother appealed the magistrate judge's finding to the district court. The parties presented
oral argument to the district court on March 5, 2019. After reviewing the evidentiary
record from the adjudication hearing and considering the arguments of counsel, the
district court found clear and convincing evidence that D.H. was a child in need of care
because Mother had abandoned the child. The district court also found clear and
convincing evidence that D.H. was a child in need of care because she was without
adequate parental care, control, or subsistence and without the care or control necessary
for her physical, mental, or emotional health.


       Mother timely appeals.


                                         ANALYSIS

       Mother challenges all three grounds upon which the district court relied in
adjudicating D.H. as a child in need of care. First, Mother claims the district court
improperly considered and relied on evidence outside the relevant time period. Second,
Mother claims there is insufficient evidence in the record to support the district court's
adjudication decision. We address each of Mother's claims in turn.


1. The relevant time period

       In support of its decision to adjudicate D.H. as a child in need of care, the district
court made findings of fact that Mother essentially abandoned D.H. in 2009 by moving to
Illinois and, on the day the CINC petition was filed, D.H. was without the parental care,
control, or subsistence necessary to safeguard D.H.'s physical, mental, or emotional



                                              7
health. Mother asserts that under the Code, the only facts relevant to an adjudication
decision are those that exist on the date of the adjudication hearing. Because the district
court based its decision on circumstances that existed before the adjudication hearing,
Mother argues the court's order of adjudication is both factually and legally flawed.


       Mother's argument requires us to review and interpret relevant portions of the
Code. We have unlimited review of issues involving statutory construction. The most
fundamental rule of statutory construction is that the intent of the Legislature governs if
that intent can be ascertained. Hoesli v. Triplett, Inc., 303 Kan. 358, 362, 361 P.3d 504
(2015). When construing statutes to determine legislative intent, appellate courts must
consider various provisions of an act in pari materia with a view of reconciling and
bringing the provisions into workable harmony if possible. Friends of Bethany Place v.
City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013). Courts must construe
statutes to avoid unreasonable or absurd results and presume the Legislature does not
intend to enact meaningless legislation. Milano's Inc. v. Kansas Dept. of Labor, 296 Kan.
497, 501, 293 P.3d 707 (2013).


       At the time the CINC petition was filed in this case, K.S.A. 2018 Supp. 38-2202
defined a child in need of care as follows:


               "(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:
               (1) Is without adequate parental care, control or subsistence and the condition is
       not due solely to the lack of financial means of the child's parents or other custodian;
               (2) is without care or control necessary for the child's physical, mental or
       emotional health; [or]
               ....
               (5) has been abandoned or does not have a known living parent."




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       According to Mother, the plain language in these subsections of the statute
prohibit the district court from considering circumstances that existed before the
adjudication hearing. Conversely, the State argues that the plain language of the statute
requires the court to make its adjudication decision based on the circumstances that
existed on the day the CINC petition was filed.


       We find both parties' interpretations of the language at issue are inconsistent with
the grammatical structure of the statute itself. We address the State's argument first. If we
read the introduction to this subsection of the statute without any adjectives at all, the
statute states that a child in need of care is a person. The words "less than 18 years of age
at the time of filing of the petition" is an adjective phrase that describes or modifies the
noun "person." And each of the alternative circumstances in the statute also is an
adjective phrase that describes or modifies the noun "person." So, contrary to the State's
argument, the plain language of the CINC statute does not require the court to make its
adjudication decision based only on the circumstances that existed on the day the CINC
petition was filed. See In re B.G., No. 109,513, 2013 WL 4404574, at *5 (Kan. App.
2013) (unpublished opinion) (statutory language "'at the time of filing of the petition'"
does not limit temporal scope of court's review at adjudication hearing); In re A.M., No.
108,012, 2013 WL 518019, at *3-4 (Kan. App. 2013) (unpublished opinion) (same); In re
B.R.H., No. 104,574, 2011 WL 1344856, at *5 (Kan. App. 2011) (unpublished opinion)
(same).


       And contrary to Mother's argument, 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. For example, K.S.A.
2018 Supp. 38-2202(d)(5), which is one of the enumerated circumstances cited by the
district court to support the CINC adjudication here, specifically describes a child in need
of care in the present perfect tense as a person who "has been abandoned." Those grounds
depend upon a view of the child's circumstances in the past and the present instead of


                                              9
focusing only on the child's present condition. See In re A.M., 2013 WL 518019, at *3-4
(trial court incorrectly ruled that evidence had to relate to events close to date of petition;
evidence of events several years prior to petition could be relevant). Other CINC
definitions also use the present perfect tense in defining who is considered a child in need
of care. See K.S.A. 2018 Supp. 38-2202(d)(3), (d)(4), (d)(11), and (d)(13).


       Notably, however, there also are enumerated circumstances in the statutory CINC
definition that use the present tense. Two of these circumstances were cited by the district
court to support the CINC adjudication in this case: (1) a child who is without adequate
parental care, control, or subsistence and (2) a child who is without the care or control
necessary for the child's physical, mental, or emotional health. K.S.A. 2018 Supp. 38-
2202(d)(1), (d)(2). Those grounds depend upon 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 hearing. In re A.E.S., No. 108,584, 2013 WL 2992733, at *4 (Kan. App.
2013) (unpublished opinion) (adjudication criteria set forth in K.S.A. 2012 Supp. 38-
2202[d][1] and [d][2] should be viewed at time of hearing, rather than at time petition is
filed, in deciding whether child is now in need of care).


       Based on the analysis above, we 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.



                                              10
2. Sufficiency of the evidence

       Having determined that the temporal scope of the circumstances to be considered
depends on the statutory criteria upon which the district court is making the adjudication
decision, we now turn to Mother's claim that there was insufficient evidence to support
the district court's decision to adjudicate D.H. as a child in need of care.


       Before a district court can adjudicate a child to be in need of care under K.S.A.
2018 Supp. 38-2251, the State must prove by clear and convincing evidence that the
child's circumstances fit within one of the criteria defining "child in need of care" under
K.S.A. 2018 Supp. 38-2202(d). K.S.A. 2018 Supp. 38-2250. Once the district court has
made a CINC decision, the statute governing adjudication requires the court to take
further action as follows:


               "(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.
               "(b) If the court finds that the child is a child in need of care, the court shall enter
       an order adjudicating the child to be a child in need of care and may proceed to enter
       other orders as authorized by this code." K.S.A. 2018 Supp. 38-2251.


       When we review a district court's determination that a child is in need of care, we
determine whether, after review of all the evidence, viewed in the light most favorable to
the State, we are convinced that a rational fact-finder could have found it highly probable,
i.e., by clear and convincing evidence, that the circumstances met at least one of the
criterion in the statutory definition of a child in need of care. In making this
determination, an appellate court does not weigh conflicting evidence, pass on the
credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. 686,
705, 187 P.3d 594 (2008). And to the extent our review requires us to interpret the
provisions of K.S.A. 2018 Supp. 38-2202(d), which is a question of law, we have




                                                     11
unlimited review. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045
(2013).


       a. K.S.A. 2018 Supp. 38-2202(d)(5)

       Mother argues there is insufficient evidence to support the district court's
adjudication decision under K.S.A. 2018 Supp. 38-2202(d)(5). This subsection of the
statute defines a child in need of care as one that "has been abandoned or does not have a
known living parent." K.S.A. 2018 Supp. 38-2202(d)(5). As used in this subsection, the
word "'[a]bandon' or 'abandonment' means to forsake, desert or, without making
appropriate provision for substitute care, cease providing care for the child." K.S.A. 2018
Supp. 38-2202(a). The CINC criterion set forth in subsection (d)(5) is framed in the
present perfect tense, so the adjudication decision is based upon a view of the child's
circumstances in the past and the present.


       The district court's adjudication decision was grounded in its legal conclusion that
Mother had "forsaken" D.H. based on the limited contact between the two "for an
extensive period of time." But the district court misconstrues the analysis required by
K.S.A. 2018 Supp. 38-2202(d)(5). This provision of the statute is phrased in passive
voice to focus on abandonment of the child. The court, however, made its adjudication
decision based on Mother's affirmative conduct: her alleged failure to have more contact
and communication with D.H. from 2009 to 2018. We find the following analysis
relevant with regard to construing the language in K.S.A. 2018 Supp. 38-2202(d)(5):


       "Consider the different ways in which statutory provisions defining parental fitness and
       child abandonment have been written. K.S.A. 2014 Supp. 38-2202(d), which defines
       when a child is in need of care, focuses on the child, while K.S.A. 38-2269, which
       defines parental unfitness, focuses on the parent. K.S.A. 38-2202(d)(5)'s provision on
       abandonment is phrased in passive voice to focus on abandonment of the child ('[the
       child] has been abandoned or does not have a known living parent'), not the act of an



                                                  12
       individual parent. While our court has previously said that a court should focus only on
       the conduct of the parent whose rights are at issue or against whom the child-in-need-of-
       care petition is brought, we have made that statement in cases involving whether the
       parent had abused or neglected the child, not in relation to a finding of abandonment.
               "This makes sense: when a court is considering whether a child has been abused
       or neglected by a parent, it is logical to look only at the conduct of the parent against
       whom those allegations were made. But here, the abandonment provision in the Code
       looks at the position of the child and authorizes a child-in-need-of-care finding only when
       the child 'has been abandoned or does not have a known living parent.' [Citations
       omitted.]" In re K.G., No. 112,115, 2015 WL 3514169, at *12 (Kan. App. 2015)
       (unpublished opinion) (Leben, J., concurring).


       The analysis set forth above properly considers the various provisions of the Code
in pari materia with a view of reconciling and bringing the provisions into workable
harmony. Applying that analysis to the facts here, the district court's analysis is legally
flawed because it focuses solely on Mother's alleged failure to have more contact and
communication with D.H. from 2009 to 2018 instead of focusing on whether D.H. had
been abandoned.


       Although we find the district court's analysis to be flawed, we still must determine
whether after review of all the evidence, viewed in the light most favorable to the State,
we are convinced that a rational fact-finder could have found it highly probable, i.e., by
clear and convincing evidence, that D.H. had been abandoned. As used in K.S.A. 2018
Supp. 38-2202(d)(5), the word abandon means (1) to forsake, (2) to desert, or (3) to stop
providing care for the child without first making appropriate provision for substitute care.
K.S.A. 2018 Supp. 38-2202(a). The first two words used to define "abandon" in K.S.A.
2018 Supp. 38-2202(a)—"forsake" and "desert"—each suggest a permanent act and not
just an absence for a period of time. To that end, Webster's New World College
Dictionary defines "forsake" as "to give up; renounce (a habit, idea, etc.) . . . to leave;




                                                    13
abandon" and "desert" as "to forsake (someone or something that one ought not to leave);
abandon." Webster's New World College Dictionary 399, 569 (5th ed. 2014).


       The historical circumstances in this case suggest that Mother did not intend to
permanently abandon D.H. Mother testified that she did maintain at least some contact
with D.H. over the years. And significantly, Mother also testified that attempts to
exercise her weekly visitation rights with D.H. were regularly ignored or resisted by
Father. This testimony was undisputed. Although she did not see D.H. in person during
the six-year period from 2009 to 2015, Mother explained she could not afford to travel
from Illinois to Kansas. And in 2015 and 2017, Mother did travel from Illinois to Kansas
by Greyhound bus to visit D.H.


       In addition to the historical circumstances, we find the circumstances occurring
after the CINC petition was filed also suggest that Mother did not intend to permanently
abandon D.H. The record reflects that Father died on the afternoon of Wednesday,
June 20, 2018. Two days later, on Friday, June 22, 2018, the State notified Mother that a
temporary custody hearing for D.H. would be held the following Monday morning,
June 25, 2018. Despite this short notice, Mother traveled from Illinois to Kansas and
appeared pro se at the hearing. And the record is replete with Mother's consistent efforts
to communicate and visit with D.H. from June 25, 2018, to January 25, 2019, the date of
the adjudication hearing. Simply put, the evidence in the record is insufficient evidence to
establish that Mother intended to permanently abandon D.H.


       Under K.S.A. 2018 Supp. 38-2202(a), abandonment also means the termination of
care for a child without making appropriate provision for substitute care. To "cease
providing care for the child" does not—by itself—constitute abandonment. See K.S.A.
2018 Supp. 38-2202(a). It must be combined with a failure to provide substitute care for
the child. In this case, Mother did not cease to provide care for D.H.; she left D.H. in
Father's care until his death. After Father's suicide on June 20, 2018, Mother


                                             14
immediately, and on short notice, returned to Kansas for D.H.'s temporary custody
hearing and has been actively pursuing custody of D.H. ever since.


       After review of all the evidence, viewed in a light most favorable to the State, we
find the district court's finding of abandonment is not supported by clear and convincing
evidence. As such, the district court erred in relying on K.S.A. 2018 Supp. 38-2202(d)(5)
in determining D.H. was a child in need of care.


       b. K.S.A. 2018 Supp. 38-2202(d)(1)

       In addition to subsection (d)(5), the district court found clear and convincing
evidence in the evidentiary record to support adjudication under K.S.A. 2018 Supp. 38-
2202(d)(1). Subsection (d)(1) defines a child in need of care as one who is without
adequate parental care, control or subsistence and the condition is not due solely to the
lack of financial means of the child's parents or other custodian. The court's findings of
fact and conclusions of law with regard to adjudication under subsection (d)(1) are set
forth in the following paragraph of the hearing transcript:


               "The court . . . is going to find that at the time the petition was filed, because
       [Father] died I think on June—well, in June of 2018, and the petition was filed June 22nd
       of 2018, the court is also going to find that at that moment, at the time the petition was
       filed, [D.H.] was without adequate parental care, control, or subsistence. Dad's gone and
       Mom has been out of the picture for ten years, and the court's going to find that's not
       adequate parental care, custody, and control—or care, control, and subsistence."


       The CINC criterion set forth in (d)(1) is framed in the present tense so an
adjudication decision under this subsection should be limited to a view of the child's
present circumstances at the time of the adjudication hearing. Contrary to the language of
the statute, the district court stated its finding of adjudication was based on the
circumstances existing "at that moment, at the time the petition was filed." The court's


                                                    15
statement that it would focus only on the day the petition was filed misconstrues the plain
language of the statute. And although circumstances existing on the day the petition was
filed may be tangentially related to the circumstances existing on the date of the
adjudication hearing, the excerpt above establishes that the district court relied solely on
historical facts to adjudicate D.H. as a child in need of care under this subsection.
Specifically, the court concluded as a matter of law that D.H. was without parental care,
control, and subsistence on June 22, 2018, because "Mom has been out of the picture for
ten years." As a preliminary matter, the court's factual finding that Mother had been out
of the picture for 10 years is inaccurate. Mother testified that she did maintain at least
some contact with D.H. after moving to Illinois and that she personally visited D.H. in
2015 and 2017.


       But even if the fact Mom has been out of the picture for 10 years is true, this
finding of fact does not constitute clear and convincing evidence that D.H. was without
adequate parental care, control, or subsistence on January 25, 2019, the date the
adjudication hearing was held. See K.S.A. 2018 Supp. 38-2202(d)(1) (defining child in
need of care as child who is without adequate parental care, control, or subsistence and
condition is not due solely to lack of financial means of child's parents or other
custodian). This is not to say that the district court is prohibited from considering that, as
of June 22, 2018, Father had died and Mother had limited contact with D.H. over the past
10 years. But these facts can only be considered in the context of deciding whether—on
the day of the adjudication hearing—D.H. currently is without parental care, control, and
subsistence. The reason why Mother had been out of the picture for 10 years as of June
22, 2018, is a circumstance of the past and not relevant to whether D.H. currently is a
child in need of care under subsection (d)(1).


       Although the facts cited by the district court fall far short of clear and convincing
evidence to support adjudication under K.S.A. 2018 Supp. 38-2202(d)(1), our standard of
review requires us to review all the evidence, in the light most favorable to the State, and


                                              16
decide whether we are convinced that a rational fact-finder could have found it highly
probable, i.e., by clear and convincing evidence, that D.H., at the time of the adjudication
hearing, was without adequate parental care, control, or subsistence and the condition
was not due solely to the lack of financial means of the child's parents or other custodian.
Upon review of the transcript of appeal heard by the district court and the journal entry of
adjudication, we find no indication that the court considered any of the circumstances that
existed when the adjudication hearing was held. To that end, the evidentiary transcript
reflects that on January 25, 2019, Mother was ready, willing, and able to provide D.H.
with parental care, control, and subsistence. And there is no dispute between the parties
that, as of the day of the adjudication hearing, Mother (1) owned her own home, (2)
owned her own car, (3) had mental health services and medication management in place,
(4) had engaged in visits and therapy with D.H., and (5) was successfully parenting a
special needs child and had been doing so for over 10 years.


       The State argues this evidence is undercut by the fact that Mother and D.H. had
not yet developed a mother/daughter relationship on January 25, 2019, the date of the
evidentiary adjudication hearing. But we fail to see how a not-yet-fully-developed
mother/daughter relationship equates to a lack of adequate parental care, control, or
subsistence. Again, the State does not dispute that Mother had the ability to provide food,
shelter, transportation, clothing, medical care, and mental health services for D.H. Mother
testified that she had been laid off from her job in the time between the filing of the
petition and the date of the adjudication hearing, but Mother explained that she had made
a claim for Social Security income benefits and, while waiting for a decision, she was
receiving some financial support from her mother.


       After review of all the evidence, viewed in a light most favorable to the State, we
find the district court's finding that D.H. was without adequate parental care, control, or
subsistence at the time of the adjudication hearing is not supported by clear and



                                             17
convincing evidence. As such, the district court erred in relying on K.S.A. 2018 Supp.
38-2202(d)(1) in determining D.H. was a child in need of care.


       c. K.S.A. 2018 Supp. 38-2202(d)(2)

       K.S.A. 2018 Supp. 38-2202(d)(2) defines a child in need of care as one who is
without care or control necessary for the child's physical, mental, or emotional health.
The district court's findings of fact and conclusions of law with regard to adjudication
under this subsection are set forth in the following paragraph of the hearing transcript:


                  "The court's also going to find that the parent that was surviving at the time,
       [Father] passed away, Mom, was not providing the care and control necessary for the
       child's physical, mental, or emotional health. She had, by admission of her own attorney
       today, little or no relationship with this child. Therefore, she could not provide the care or
       control necessary for the child's physical, mental, or emotional health as defined in
       (d)(2)."


       In a nutshell, the district court concluded as a matter of law that D.H. was without
the care or control necessary for D.H.'s physical, mental, or emotional health based on its
factual finding that Mother had "little or no relationship with this child" as of June 22,
2018, the date the CINC petition was filed. The CINC criterion set forth in (d)(2) is
framed in the present tense so an adjudication decision under this subsection should be
limited to a view of the child's present circumstances on the day of the adjudication
hearing. Again, we are not saying that the circumstances existing on the day the CINC
petition was filed are immaterial to an adjudication decision. The fact that, as of June 22,
2018, Mother had little or no relationship with D.H. is one of many circumstances that
can be considered in deciding whether—on the day of the adjudication hearing—D.H.
currently is without the care or control necessary for D.H.'s physical, mental, or
emotional health. But the reason why Mother had little to no relationship with D.H. as of




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June 22, 2018, is a circumstance of the past and simply is not relevant to whether D.H.
currently is a child in need of care under subsections (d)(1) and (d)(2).


       The facts cited by the district court do not constitute clear and convincing
evidence to support adjudication under K.S.A. 2018 Supp. 38-2202(d)(2). So we now
must review the evidence, in the light most favorable to the State, and decide whether
there is clear and convincing evidence in the record to establish that D.H. was without the
care or control necessary for D.H.'s physical, mental, or emotional health.


       The uncontroverted evidence presented at the adjudication hearing was that
Mother had years of experience accessing physical, mental, and emotional health services
for her other child, J.Z., and had worked with several state agencies to provide support
for J.Z.'s physical and mental health needs. There was also evidence presented to
establish that D.H. went to Illinois to visit Mother over her Thanksgiving break for about
four or five days and that Mother communicated with D.H. by phone and participated in
some of D.H.'s therapy sessions in Kansas. Notwithstanding this uncontroverted
evidence, the State asserted D.H. was without the care or control necessary for her
physical, mental, or emotional health at the time of the adjudication hearing. In support of
its assertion, the State first relied on the testimony of D.H.'s therapist, who began seeing
D.H. after the CINC petition was filed in order to treat D.H. for the trauma she
experienced from Father's suicide. At the adjudication hearing, the therapist reflected on
whether D.H.'s not-yet-fully-developed relationship with Mother would discourage D.H.
from discussing with Mother any problems that exist or may arise. The therapist also
testified that D.H. did not want to move to Illinois.


       First of all, we note that—like Mother—D.H. only had a superficial relationship
with her grandfather before the CINC petition was filed. But DCF utilized grandfather as
a placement anyway, notwithstanding the fact that the parent of a child enjoys a
constitutionally protected relationship, which is to be preferred over the child's


                                             19
relationships with others. See In re C.L.A., 31 Kan. App. 2d 536, 539, 106 P.3d 60
(2003). We also note that in the seven-month time period between the date the petition
was filed and the date of the adjudication hearing, D.H. and grandfather's superficial
relationship evolved and the two grew closer. This suggests that placing D.H. with
Mother would not cause D.H. great harm, as the State argues. And Mother testified that
she was aware of D.H.'s mental and emotional health needs and already had identified an
individual therapist for D.H. and a family therapist for Mother and D.H. in Illinois. Like
the services she was receiving in Kansas, these therapeutic resources in Illinois would
provide a safe place for D.H. to privately discuss any problems she was experiencing.
Mother demonstrated that she was able to provide structure and enforce boundaries with
respect to D.H.'s behavior. Finally, Mother testified she was willing to ensure, and
understood the importance of maintaining, D.H.'s relationships with her extended family
in Kansas.


       Although the therapist testified that D.H. was reluctant to move to Illinois, the
therapist also testified that D.H. indicated she did not know what she wanted in terms of
her living situation. This is consistent with Mother's testimony that D.H. appeared to have
mixed feelings about telling people where she wanted to live. D.H. was reluctant to upset
anyone or have confrontation. When D.H. visited Mother in Illinois over her
Thanksgiving break, she opened up and told Mother she was confused and did not know
what she wanted in terms of her living situation.


       The district court did not make any factual findings with regard to the evidence
cited above as it relates to the question of whether D.H. was without the care or control
necessary for D.H.'s physical, mental, or emotional health. And the State did not argue
that the evidence cited above relates to the question of whether D.H. was without the care
or control necessary for D.H.'s physical, mental, or emotional health. Even when we
review the evidence in a light most favorable to the State, we find insufficient evidence in
the record to establish—by clear and convincing evidence—that D.H. was without the


                                             20
care or control necessary to meet her physical, mental, or emotional health at the time of
the adjudication hearing.


       In sum, and upon review of all the evidence in a light most favorable to the State,
we conclude the district court's adjudication of D.H. as a child in need of care under
K.S.A. 2018 Supp. 38-2202(a), (d)(1), (d)(2), and (d)(5) is not supported by clear and
convincing evidence. Accordingly, we set aside 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 D.H. See K.S.A. 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.




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