                         NOT DESIGNATED FOR PUBLICATION

                                            No. 122,333

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       In the Interests of
                           D.J.B., D.B., D.D.B., D.L.B., and D.M.B.,
                                        Minor Children.

                                  MEMORANDUM OPINION

       Appeal from Wilson District Court; TOD MICHAEL DAVIS, magistrate judge. Opinion filed July
17, 2020. Affirmed.


       Brandon D. Cameron, of Hines, Jones & Cameron LLC, of Erie, for appellant natural mother.


       Cole Hoffmeister, of Emert Chubb Reynolds LLC, of Independence, for appellant natural father.


       Daylene Walls, of Coffeyville, for appellee State of Kansas.


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

       PER CURIAM: The district court adjudicated five children as children in need of the
State's care, finding they lacked parental care, support, and control under K.S.A. 2019
Supp. 38-2202(d)(1) and (2). The children's natural parents appeal that decision, asking
that we come to a different conclusion based on some of the testimony presented at the
adjudication hearing. But though we recognize the evidence in this case was contested, it
is not the role of an appellate court to reassess witnesses' credibility or reweigh the
evidence. After carefully reviewing the parties' arguments and the record before us, we
conclude there is sufficient evidence in the record to support the court's findings. Thus,
we affirm.




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                        FACTUAL AND PROCEDURAL BACKGROUND

       On October 18, 2017, the State filed a Child in Need of Care (CINC) petition on
behalf of D.J.B., D.B., D.D.B., D.L.B., and D.M.B, who then ranged in age from 13 to 2.
The petition alleged the five children were without adequate parental care, control, or
subsistence, not due solely to the lack of financial means of their parents, and were
without the care or control necessary for their physical, mental, or emotional health. See
K.S.A. 2019 Supp. 38-2202(d)(1), (2). The parents initially did not contest the State's
petition, but several months later they successfully set aside their stipulations in order to
challenge the adjudication proceedings.


       The adjudication hearing was not held until June 2019. At the hearing, Stefanie
Senf (a social worker for the Department of Children and Families [DCF]), the children's
mother (Mother), and the children's maternal grandmother (Grandmother) were the only
witnesses to testify. The testimony at the adjudication hearing, though often conflicting,
presented the following history.


       Social workers from DCF had been in frequent contact with the children's family
since 2011. But the State's CINC petitions were based primarily on the reports of Senf,
who had investigated the children's circumstances twice in the days before the petition
was filed. Senf initiated her investigation after the county attorney received a report from
Grandmother, who was concerned about the children's well-being. During that same time,
D.J.B. (the oldest of the five children, then 13 years old) had been placed in protective
custody for not attending school for at least two weeks; he was also facing felony charges
in Montgomery County for his participation in several break-ins.


       At the time of Senf's investigation, Father was serving a jail sanction for violating
the terms of his probation by using methamphetamine and failing to meet with his
mandated men's non-violence group. The family had been living in a trailer owned by



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one of Father's friends, but once Father began serving his sanction, the four youngest
children and Mother moved to Grandmother's house because they had nowhere else to
go—that is, they were allegedly homeless. D.J.B. was apparently not residing at
Grandmother's home; instead, he was staying between several different houses and had
not been attending school for a number of weeks.


       When Senf arrived at Grandmother's house, Mother was not present. Grandmother
informed her that she did not know where Mother was; she had left early that morning
and did not ask Grandmother to watch the children. According to Senf's affidavit and her
testimony at the adjudication hearing, Grandmother reported that Mother had showed up
on her doorstep with the children needing a place to stay. Grandmother claimed they did
not have food and the youngest two children did not have diapers. At least one of the
children informed Senf that the children were often hungry.


       Senf also reported that Grandmother expressed concerns about Mother's mental
health, substance abuse, and issues relating to domestic violence. Grandmother conceded
that there had not been any recent domestic violence issues that she was personally aware
of and did not know whether Mother was actually using drugs. But one of the children
told Senf about seeing a glass tube with a burnt end and claimed to feel safer at
Grandmother's house. Grandmother told Senf that during a recent argument between
Grandmother and Mother, Mother had threatened to kill both herself and the children. At
the adjudication hearing almost two years later, when asked if Mother had ever
threatened to kill the children, Grandmother clarified: "Oh, no, no, no, no. Herself, yeah.
And—well, she asked me . . . What do you want me to do? Do you want me to kill
myself and my children too? That's exactly what she . . . said."


       Grandmother's other reported concern was that Mother was often absent and was
unable to care for the children, frequently leaving them unsupervised. Grandmother told
the social worker that Mother was rarely at the home and would come and go as she


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pleased without warning, often leaving the children alone. And because Grandmother
was not the children's legal guardian, she did not have the legal authority to care for the
children—i.e., she could not take them out of school or authorize medical care without
Mother or Father. Although the social worker reported the children appeared healthy
during her visit, she observed that the two youngest children (who were approximately
two and three years old) had their heads partially shaved; she was informed that one of
these two children had gotten ahold of an electric razor while they had been left
unattended and had given them both haircuts. Senf testified that Grandmother told the
social worker she did not want Mother living with her or with the children.


       While much of Senf's investigation was based on information Grandmother told
the social worker in October 2017, Grandmother's account was substantially different at
the June 2019 adjudication hearing. At the hearing, Grandmother claimed not to
remember Senf ever coming to the house to speak with her and check on the children.
Grandmother testified that she had reported the children's situation because she was
"angry" at Mother and "stressed out" over D.J.B.'s legal trouble. She denied saying she
did not want Mother staying in her home. And she stated that Mother was always around
while she and the children stayed with her, except when she went to the grocery store or
briefly visited friends. Grandmother also claimed—despite her prior assertions to the
contrary—that she believed Mother was capable of taking care of the children and
providing for them. And when she was asked to confirm the various concerns for the
children she had described to the social worker, Grandmother provided evasive responses
such as: "I might think that," "I probably did," and "I might have."


       The State questioned Grandmother about why her testimony was so different from
what she had previously told the DCF social worker, specifically asking if anyone had
encouraged her to change her testimony; Grandmother replied: "I have a mind of my
own." She stated that she may have made things up when she talked to Senf because she
was mad at Mother and they had just had an argument. But Grandmother admitted that


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Senf's recollection of their conversations was likely more accurate than her own because
the social worker had taken notes and drafted a report. She also indicated she had wanted
the children to live with her, and she was unhappy that the children had been placed in
foster care instead.


       For her part, Mother testified that she believed Grandmother had either made up or
exaggerated the accusations about the children's situation because she wanted custody of
the children. Mother also stated that she and the children were not homeless, though she
could not recall the exact details of where they had been living or when. Mother stated
that she came to Grandmother's house with a few diapers for the younger children, but
that was enough since they were potty training. Mother testified she had never left the
children alone for more than two hours and—despite having no job and not receiving any
governmental assistance—believed she was able to adequately take care of the children's
needs. Overall, Mother denied the State's allegations and claimed Grandmother's
statements were untrue.


       The district court was also presented with evidence regarding Mother's and
Father's actions during the 20 months the CINC petition was pending. Initially, Mother
and Father both entered no-contest stipulations to the allegations in the petition; those
stipulations remained in place for 9 and 10 months, respectively. But after the parents set
aside their stipulations and challenged the adjudication in October and November 2018,
they wholly failed to comply with the court-ordered case plan. Neither submitted to
urinalysis checks or signed required consent forms; neither attempted to visit,
communicate with, or provide support to their children in the months before the
adjudication hearing. Though Father did not testify, Father's attorney indicated that the
reason for the parents' noncompliance was that they believed the children had been
improperly taken from Mother and Father in the first place, so they should not have to
comply with the court's orders.



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       After hearing the testimony and considering the evidence before it, the district
court adjudicated D.J.B., D.B., D.D.B., D.L.B., and D.M.B. as children in need of care
under K.S.A. 2019 Supp. 38-2202(d)(1) and (2). In reaching this conclusion, the court
expressly found Grandmother and Mother had not provided credible testimony; the court
found Senf's account to be credible and reliable. It explained:


                  "I do think the State has met its burden, and I'm basing that on the testimony of
       [Senf] as well as the testimony of both the grandmother and the mom. Piecing that all
       together, there are times when they contradicted each other, but there are also statements
       that they all made that meshed together.
                  ....
                  ". . . I think the parents' conduct up to today from the time the temporary—
       temporary custody hearing in and of itself would constitute grounds for an adjudication
       hearing.
                  " . . . [T]he parents have had no contact—because their—of their own conduct,
       the parents have had no contact with these kids for—I don't recall now for how long—for
       a fairly substantial period of time.
                  "But based on the evidence presented today—and I think that's—well, based on
       the evidence today, I do find that the State has met its burden of proof. I am going to
       adjudicate the children to be children in need of care."


       Mother and Father now appeal that decision.


                                                    DISCUSSION

       CINC actions, brought under the revised Kansas Code for Care of Children,
K.S.A. 2019 Supp. 38-2201 et seq., 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"). A CINC adjudication is one step in the State's
protective process and may be followed by attempts to reunite the children and parents or

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by a more permanent separation or termination of parental rights. See K.S.A. 2019 Supp.
38-2251; K.S.A. 2019 Supp. 38-2269. A parent may appeal the adjudication, as Mother
and Father have done here. See K.S.A. 2019 Supp. 38-2273(a).


       The district court found that D.J.B., D.B., D.D.B., D.L.B., and D.M.B. were
children in need of care under K.S.A. 2019 Supp. 38-2202(d)(1) and (2). Under these
provisions, the State was required to prove by clear and convincing evidence that the
children were "without adequate parental care, control or subsistence" for a reason "not
due solely to the lack of [the parents'] financial means" and that they were "without the
care or control necessary for [their] physical, mental or emotional health." K.S.A. 2019
Supp. 38-2202(d)(1), (2); K.S.A. 2019 Supp. 38-2250; In re B.D.-Y., 286 Kan. 686, 705,
187 P.3d 594 (2008). When reviewing such a determination, an appellate court must
consider whether there was sufficient evidence presented from which the court could
have concluded it was highly probable that the children were children in need of the
State's care under the statute. 286 Kan. at 705. In doing so, we view the evidence in the
light most favorable to the prevailing party. We do not reweigh conflicting evidence or
reassess the credibility of witnesses; instead, we rely on the fact-finder—who was present
to observe the witnesses' demeanor and hear their testimony—for those judgments. 286
Kan. at 705.


       Mother and Father assert that many of the social worker's findings and reports
were contradicted by the testimony of Mother and Grandmother, and therefore the State
could not prove by clear and convincing evidence that the children were without the
adequate care and control required by law. But while there was conflicting testimony
presented at the adjudication hearing, the district court found Senf's testimony and report
provided a credible account of the facts. We do not reweigh the evidence and do not—in
fact, cannot—reassess witnesses' credibility.




                                                7
       When viewed in the light most favorable to the State, there is sufficient evidence
to support the district court's findings. In particular:


   • Mother and the children moved in with Grandmother because they were homeless.

   • The two youngest children did not have diapers when they arrived at
       Grandmother's house.

   • Mother was not able to provide the children with adequate food, and one child
       stated they often went hungry.

   • Mother frequently left without warning and left the children unattended.

   • Grandmother—who was frequently left to care for the children—did not have the
       legal authority to authorize their medical care or pick them up from school if
       something was amiss.

   • One of the children reported finding a glass pipe with a burnt end inside their
       house.

   • Father was in jail for drug use and other probation violations and was unable to
       provide for the children in October 2017.

   • Mother and Father both had a history of substance abuse, and Grandmother was
       concerned that Mother was potentially using drugs again.

   • The oldest of the five children was truant from school and was facing felony
       charges for his alleged participation in burglaries.

   • The youngest two children had partially shaved their heads when they had been
       left unattended and had found an electric razor.




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       In their brief, the parents point out that Mother and Grandmother disputed many of
these allegations. But the record, when viewed in the light most favorable to the State,
reasonably supports the conclusion that D.J.B., D.B., D.D.B., D.L.B., and D.M.B. were
children in need of care under K.S.A. 2019 Supp. 38-2202(d)(1) and (2).


       Mother and Father nevertheless assert that several of the social worker's
statements about the children's situation were unconfirmed and fail to show the children
were without adequate parental care, control, or subsistence or without the care and
control necessary for their physical, mental, and emotional health. We disagree.


       For example, the parents assert that there was no evidence to substantiate Senf's
report that Grandmother had indicated Mother threatened to kill herself or the children.
But while there was no evidence presented at the adjudication hearing that Mother
actually intended to act on her threats—or did act on her threats—to harm either herself
or her children, the court heard evidence from both Senf and Grandmother indicating
Mother had made that threat during an argument. There is no requirement that a child be
actually harmed before "addressing a child that is clearly at risk for harm." In re L.C., No.
120,124, 2019 WL 1976471, at *4 (Kan. App. 2019) (unpublished opinion). Mother's
statement to Grandmother, on top of the other evidence presented, warranted the State's
concerns for the safety of the children. When taken as a whole, the evidence supports the
district court's conclusion that the children were children in need of care.


       Mother and Father also argue the court should not have considered DCF's
historical involvement with their family, noting DCF's reports contained information
dating back to 2011, before the youngest two children were born. But the district court
based its CINC determination on Senf's testimony regarding the October 2017 events and
the parents' conduct since that time—not any previous incidents or allegations. Thus, the
parents' allegations are misplaced.



                                              9
       Finally, Mother and Father contend that the district court should not have
examined their actions between the time the petition was filed and the adjudication
hearing in making its ruling. We observe that multiple panels of this court have
determined that Kansas law does not limit the evidence in a CINC adjudication to
evidence obtained before a petition was filed. E.g., In re D.H., 57 Kan. App. 2d 421, 429,
453 P.3d 870 (2019), rev. denied 311 Kan. __ (February 27, 2020); In re B.G., No.
109,513, 2013 WL 4404574, at *5 (Kan. App. 2013) (unpublished opinion); In re A.M.,
No. 108,102, 2013 WL 518019, at *3-4 (Kan. App.) (unpublished decision), rev. denied
297 Kan. 1245 (2013). While we are not bound by these decisions, we come to a similar
conclusion here.


       In Kansas, we start with the presumption that "[a]ll relevant evidence is admissible
unless it is otherwise precluded by statute, constitutional provision, or court decision."
State v. Baker, 287 Kan. 345, 363, 197 P.3d 421 (2008); see K.S.A. 60-407(f). Evidence
is relevant if it has "any tendency in reason to prove any material fact." K.S.A. 60-401(b).
Relevant evidence must be both probative and material. State v. Marks, 297 Kan. 131,
142, 298 P.3d 1102 (2013). Evidence is probative when it "furnishes, establishes, or
contributes towards proof." 297 Kan. at 142. And evidence is material when it "tends to
establish a fact that is at issue and is significant under the substantive law of the case."
297 Kan. at 142. Appellate courts review materiality of evidence de novo and its
probative value for an abuse of discretion. 297 Kan. at 142.


       As this court explained in D.H., nothing in K.S.A. 2019 Supp. 38-2202(d) limits
the temporal scope of evidence that can be presented in a CINC adjudication proceeding.
The statute's only time-based limitation is that the minor in question must be "a person
less than 18 years of age at the time of filing of the petition." K.S.A. 2019 Supp. 38-
2202(d); In re D.H., 57 Kan. App. 2d at 428. There is no question the five children here,
who were between the ages of 13 and 2, fall into that category. The two statutory
provisions the district court found applicable—K.S.A. 2019 Supp. 38-2202 (d)(1) and


                                              10
(2)—consider whether each child "is without" parental care or control. Contrary to the
parents' arguments, nothing in that language limits the temporal scope of the evidence
that could be considered in this CINC adjudication. And the fact that Mother and Father
made no efforts to follow the case plan so they could visit their children and had provided
no support to their children at the time of the hearing—whatever their claimed reason for
this noncompliance—supports the district court's finding that D.J.B., D.B., D.D.B.,
D.L.B., and D.M.B. were without the required parental care and control. See In re
C.D.W., 24 Kan. App. 2d 456, 458, 946 P.2d 100 (1997).


       There was sufficient evidence presented in the CINC adjudication to support the
district court's findings that D.J.B., D.B., D.D.B., D.L.B., and D.M.B were children in
need of care under K.S.A. 2019 Supp. 38-2202(d)(1) and (2).


       Affirmed.




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